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experience of collaborative law

  • Fiona
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03 Feb 09 #85780 by Fiona
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Well done, bats, for keeping out of court.

  • FrankieDG
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23 Mar 09 #101235 by FrankieDG
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I have been using the collaborative law route for the past 13 months in Scotland. We have zero debt - combined assets of more than £3M. Husband a financier. Initially I thought it would be a 50:50 split by last summer - but he has dragged things on due to falling stock market. I have spent in excess of £4,000 on fees and not one step closer to a formal Separation Agreement - but have managed to get some cash from him as one off interim payments. Can anyone explain the relevant date issue? If all the matrimonial property was valued at , say , £1M last year, does that mean I would get £500,000? I am aware of fall in property prices and have had 2 lots of valuations and stand to divide assets from homes at current prices. But his shares in his name have fallen some 30% in value - do I get what they were worth, in cash terms, on our date our marriage fell apart, meaning he has to sell more of his shares to pay me off? I know Scots Law is different.

I am now at my wits end, suffering quite severe symptoms of depression now, and kids with me, but I feel trapped and unable to provide the love and attention they need. Am seeing my GP, as I am aware that these are really the symptoms of my mental illness, been there before and got the treatment. I have tried to make solicitor aware of how I am not coping, but am now wrestling with the notion that I should leave the collaborative law route and proceed straight to court action? For the sums of money involved and my sanity I despair to make the right decision. I feel I can no longer cope with phone calls, spreadsheets and each party blaming members of the other party for any delays. I am the lesser earning spouse, having given up a professional career to look after family and cope with a long standing disability which is now distressing me, finding myself alone and not coping with the vagaries of the legal/financial world.

Thanks for any of your thoughts.

Frankie DG

  • Fiona
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23 Mar 09 #101250 by Fiona
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Earlier I posted my understanding of the issue with the relevant date. Please bear in mind I am not a lawyer.

The Family Law (Scotland) Act 2006 tried to address what had become known as the Wallis problem. This had arisen from the case Wallis v Wallis when the House of Lords held that any change in the value of that property since the relevant date should be ignored. The result was that if property increased in value a spouse received a ‘windfall’ with a transfer of property. Courts became reluctant to order transfers as such a ‘windfall’ was seen to be unfair. The remedy was to insert (3A) in s10 Family Law (Scotland) Act 1985 so property is valued at a date agreed between the parties, failing which the date of the order. This has introduced a whole new set of problems, including which law applies when there has been a change of law between the dates of separation and bringing an action.

There are very few recent reported cases on financial provision with most cases in Scotland settling through negotiation. To my knowledge there is no reported decision to identify the principle although there is one unreported case, Burnside v Burnside (May 2007), when an attempt was made to apply s16 of the FL(S)A 2006 to the value of the pension. The pension had increased in value between separation and divorce. The sheriff rejected the argument and took the value of the pension as its CETV at separation.


  • Active8
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07 Apr 09 #105755 by Active8
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For the uninitiated, the main advantage I would see of collab process is that it all happens where you, the client, can see it: round a table, where you can all respond immediately.

Very little goes on just between the solicitors (although they have preliminary sessions to work out how to make the meetings work to best effect). Far fewer solicitor-to-solicitor letters than the average litigation or negotiation. If you want to feel in control of the structuring of your settlement with maximum transparency, its a good system.

It does depend on a commmitment to find a solution, and to stick to that commitment even when the going gets tough. Don't do it because you think it is either easy or cheap: in some cases it may be, but that's a fortunate byproduct not the main point. In some ways it may be harder than litigation, because nobody does it for you, but the outcome should be a great deal more satisfying because its YOUR outcome, not the court's, and not so much the solicitors'.

You must both have a determination to settle, and be prepared to be flexible to do so.

  • maggie
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11 Apr 09 #106677 by maggie
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Why are FDR hearings conducted on a separate rooms/anti collaborative basis?
Not hearing both sides of the argument is a huge handicap to accepting the outcome. Does any other court procedure ensure each side can't witness the other side's argument?
Couldn't at least the FDR bit of the court AR process be run on collaborative lines?
Could the FDR be conducted with all parties in the same room if all agreed to do it that way?

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