After the Vote

I was not sure what I hoped to learn by watching the first television debate between Alex Salmond and Alistair Darling.  As the programme wore on and the tone of both participants became more strident, I recognised an undeniable parallel between the work that Family Lawyers do on a day to day basis and the situation that faces the country.

Alex Salmond vs Alistair Darling

In any event, if the country votes yes in 6 weeks time, I understand that the respective governments have agreed that there will be an 18 month period when negotiations will take place between the two governments about important matters relating to the separation, such as currency, membership of the euro, defence and welfare.

Once agreement has been reached in relation to all of these issues, Scotland will become an independent country and the divorce can go ahead.

There is a remarkable similarity in this process to what happens when married (or cohabiting) people separate.  It is very rare for people to divorce immediately.  What they hope to do is identify the important matters which may relate to the welfare of their children and their financial position and, if agreement can be reached, enter into a written Contract and thereafter, perhaps after a year or two years, the divorce itself can proceed.

While, on the face of it, all this sounds quite straight forward, the difficulty lies in the nature of the negotiation and as I watched the TV debate between the two politicians deteriorate into a slanging match, I realised that the same situation was true in the national sense.

If the country does vote yes, I hope we are not faced with 18 months of acrimony and argument where the Scottish and UK governments cannot agree on anything.  I hope they will be able to sit down round a table and sort things out.  The last thing we would want is the two countries falling out and having difficulty communicating  in the future.

The same applies to couples when they separate.  It is understandable that the initial reaction to a separation is one of anxiety and that anxiety may manifest itself in dispute, conflict, and argument.  If these emotional situations are not handled properly in the first instance, then the chances of any positive relations in the future diminishes.  If the couple have children then there will clearly have to be a relationship of some sort in the future.  Hopefully both parents can be present at sports day, graduations and marriages.   It follows therefore that the process that is used when people separate should be one that fosters a future relationship and tries to reduce conflict to a minimum.

Litigation is not always the answer.  All of this is evidence as to why couples should use the collaborative process when they separate.  If they go down this route, there is an undertaking to work together for the good of the family.  There is an agreement not to go to Court.  There is the promise of transparency and there is an understanding that if other professionals are required to help smooth the process, they will be involved on a supportive basis.   Significantly both parties are encouraged to look at their own and the other person’s interest and any resultant agreement should attempt to meet these interests, if that is at all possible.

The same could be said for Scotland.  If we do agree to separate, then let’s try and ensure that negotiations over the next 18 months do not descend into an endless series of arguments which may have the effect of harming the two country’s relationship with each other in the future.  If there is a yes vote, the two countries should work on a collaborative basis with a view to maintaining good relations in the future.

Those conducting the negotiations could learn a lot from the collaborative process.  

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Conscious Uncoupling

Gwyneth and Chris posted a short message on www.goop.com explaining that they had decided to separate. They explained that, despite their decision, they would always be a family and indicated  that they intended to “consciously uncouple”.

Conscious Uncoupling - The Right Kind of Divorce (Family Law Scotland)

I have not heard of conscious uncoupling before and thought that this may be a process whereby a husband and wife can separate in a civilised way with a focus on maintaining a different form of relationship, both for themselves and for their children.

The relevance from my point of view is that I regard the collaborative law process as very much along those lines.

Having read an article on the same website (goop) I realised that conscious uncoupling is not so much a process but more of a concept.  A part of it relies on a subject I have blogged on before namely that we all live longer, that relationships are lasting longer and although that “modern society adheres to the concept that marriage should be lifelong”, the truth is that because we are living for longer periods, many people will have more than one significant long term relationship, throughout their lifetimes.

The article also makes the point that because we believe in the “until death do us part” concept, a breakdown of a relationship is seen as a failure and arising out of that is the whole concept of blame and, as a result of this, the battle lines are drawn.

On a superficial level, the concept of “conscious uncoupling” is suggesting that no-one is at fault and that during the course of the relationship we have lived together and learned from each other and that there is nothing unnatural in our relationship ending and a future relationship is possible, indeed desirable, especially where there are children.

One relationship ends but a second relationship is established and there is no reason why that second relationship should not be positive.

So conscious uncoupling is not a new process that we can introduce to people in Scotland but I would suggest that the ideas behind the collaborative process echo what conscious uncoupling is meant to achieve.

Working together for mutual benefit and reaching an agreement in relation to financial matters constructively and managing to maintain that second relationship are all outcomes that I associate with the collaborative process.

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Christmas is for Children

Scene 1
Wee boy in bedroom.

Jamie is 6 and he is sitting in his bedroom on his own. His thoughts are confused. Its nearly Christmas. He knows his parents don’t live together any more and although he is sad about that, actually before Dad left they were shouting at each other so much that he wasn’t surprised when Dad left.

Christmas Tree, Christmas tree made of crayons

He had heard some of what his mum and dad had been saying.

Some of the time they were arguing about him.

He really likes Christmas. Some kids at school say that Santa is not real but Jamie is not so sure. He likes getting presents at Christmas. This year he wants a robot. Will his mum and dad get him presents at Christmas? Will he even see his dad?


Scene 2
Mediator’s Office.

Despite the agreement, there is still a real tension. Jamie’s mum is still so upset at Jamie’s dad. She thought that she could trust him but she couldn’t. Jamie’s dad was initially apologetic but is now just angry.

The mediator lets the silence settle for a moment and then says :

“I know this has been very difficult for you but I think we all know that Jamie will be very happy at what you have decided”.


Scene 3

Christmas Eve in Jamie’s bedroom.

Jamie’s mum comes into his bedroom and sits at the side of the bed. She smiles at him. She says :

“Your dad and I have agreed that he will come over and see you tomorrow morning. I am sure he has a present for you”.

This time of year can be really hard for children whose parents have separated. It is not their fault and they are caught in the middle. Parents owe it to their children to try and sort something out and for most children, the best present would be seeing both their parents at some time at Christmas.

Before Christmas the courts are full of people who cannot agree what is best for their children at Christmas. They are asking someone else, who does not know their children, to make a decision. Would it not be better for the parents to make important decisions themselves and if that is so, then mediation and collaboration offer genuine opportunities of resolving issues concerning children in a way that allows both parents to keep on parenting.

Best wishes for the festive period and a happy new year.

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Mindsets: Parents and Children in Separation

Parents often differ as to the best way to bring up their children.  It is a common form of disagreement and on occasion, can prove critical to the parents’ own relationship. Each parent has their own views about what is best for their child and these views may differ as the child grows into a teenager.  The individual parents form their opinions on the basis of their own mindset which has itself been developed by their own life experiences.

When parents separate, these differences about what is best for a child, can escalate to such a point that the parents find themselves unable to discuss what is best for their children.

mediation

When that happens, they often consult a solicitor and one of the most important decisions the client can make is in relation to which process should be used to try and achieve the best result.

Unfortunately, it is the case that what constitutes the best result can sometimes be hard to define and it may be different for each parent and the children.

It is likely, in order to reach an arrangement that suits both parents and the child, that someone’s views will have to alter.  It may be that both parents will have to look at things slightly differently.

It is not only the mindset of the parent/client that is relevant but also the mindset of their chosen advisor.  The lawyer, too, comes to the table with a set of views gained from experience and subconsciously these views can impact on the case.

It would seem that in any negotiation if mindsets remain unaltered, a positive outcome is unlikely.  But is it possible to change someone’s mindset?  Basic negotiation indicates that there should be a strong focus on the interests of the parties involved.  Nothing could be more true than when discussing what is best for children.  In a mediation context one of the most powerful tools is the mutualising effect of both parents wishing the best outcome for their children.

To properly consider interests, there needs to be a detailed discussion about the children, their likes, dislikes, habits, preferences and how current situations are affecting them.  If age appropriate, there has to be a methodology for obtaining their views. All parties involved in the discussion have to be aware and recognise if their own mindset is affecting negotiations.  There requires to be an openness of views and an ability to respond to the questions, and this can only be properly undertaken in round the table discussions, whether they be in the form of mediation or using the collaborative process.

It may be that the underlying mindset might not change but a better understanding of the other person’s interests can only be positive.

If an individual can be aware of their own mindset and be open about it, then the other party will be better able to understand the direction from where that person is coming from.

In the short term it may not be possible to change a person’s mindset but a better understanding of the person’s interest is more likely to result in an outcome that is satisfactory as far as the parties are concerned and works to the benefit of the children involved.

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Taking separation out of the Stone Age (by Alan Susskind)

The media often features depressing stories about the number of marriages and relationships that end in failure. But there are always different ways of looking at statistics. Another common theme is that we are all living longer. Does the prospect of relationships lasting longer than ever before make it less surprising that more of them are ending prematurely?

It is actually my wedding anniversary today (I won’t reveal which one) and I was interested to learn the various names that are attributed to particular milestones.

Here is a wee list:

Old couple celebrating an annivesary

  • 10 – tin
  • 20 – china
  • 30 – pearl
  • 40 – ruby
  • 50 – gold
  • 60 – diamond
  • 70 – platinum
  • 80 – oak
  • 90 – stone

I’ve no idea why the commodity in question seems to reduce in value as the marriage extends beyond 70 years.

The point about all this is that it’s possible to be married to someone for more than 70 years. People develop and change over time. We delight in hearing that someone has been married for that length of time but is it not actually surprising that a relationship can endure for so long?

Inevitably, many relationships do break down and the important aspect is how we cope with that situation and manage the end of the relationship, particularly when there are children involved.

Some people drift apart, some meet other people and some people simply find that they do not like their partner any more. Some are victims of abuse.

In a relationship where there are no children it may be the case that parties who separate will have no further communication with the other person. For people with children that is less likely, as they have to communicate with each other for the benefit of their children.

And in any event, except for perhaps a restricted number of situations (I mentioned abuse before), why should there not be an ongoing relationship between parties who separate?

Their interests may no longer coincide and the split may have been traumatic but these are people who have built strong attachments. Why should all communications break off?

It may be that this cutting of ties is what society has led us to believe should happen, and we are apprehensive about straying from the cultural norm. The events leading up to the end of a relationship are often traumatic. Emotions are raw and quite often at that time people take advice from their friends (who have perhaps been through the process themselves) and often consult solicitors.

A lot of responsibility is placed on the shoulders of the Family Law Practitioner. They may have to use their skills, both legal and soft, to guide their client in what might be the most difficult and stressful period of their lives. The advice they provide at this stage is crucial.

I think society still expects that when people separate there will be an argument, with the use of words such as ‘war’ and ‘battle’ raising the expectation that, whatever happens, it’s going to be a fight.

There may be a restricted number of cases where this is understandable and even appropriate. One of the parties could be acting in a completely unacceptable way that affects everyone involved, including the children, and they are not prepared to come to the table and discuss matters.

In many other cases, however, when the solicitors advising the parties explain the full range of options available it is possible that there doesn’t have to be a ‘war’.

It can be difficult for people to reach this conclusion at the time of separation or in the months immediately following. They are understandably emotional and can act without thinking of the consequences. They need time.

A good solicitor has to manage the situation, advising that it is best not to take decisions prematurely. Perhaps some breathing space might help before committing to a particular course of action. Eventually, though, most people appreciate that avoiding a ‘war’ is the best path to follow.

Processes such as Collaborative Law and Mediation are used to create a situation where the parties can acknowledge that while their original relationship is over, there can be a different form of relationship for the future.

In both Collaborative Law and Mediation, the parties have a chance to talk to each other. They have the opportunity of acknowledging the past but the lawyer and mediator should encourage them to think about the future. That is not going to happen with solicitors sending increasingly acrimonious letters to each other, which are instantly copied to the client.

If we get the timing right, then although the original relationship has ended – whether at the tin, gold or stone stage – there is a possibility that a new relationship can emerge which, in allowing the parties continued communication, will have a value of its very own.

alan-susskind-the-right-kind-of-divorce-contributor-harper-macleod-smallAlan Susskind is a Partner in Harper Macleod’s Family Law team with more than 20 years experience in all types of actions. Harper Macleod’s team of family solicitors understands that divorce and separation can have a huge impact on your life, and can guide you through the best course of action with sensitivity and objectivity. Getting the best advice is crucial to resolving your situation, and there are many options available to you, from litigation and arbitration to negotiation, mediation and collaboration.

To talk to Alan or one of our team call 0141 227 9545

Family life in all its variations – our greatest strength and our greatest weakness?

Lots of coverage in the news about divorce with  headlines like “Breaking Up Is Hard To Pay For” (the Sunday Times money supplement 06/01/13) and “Parents’ Disputes Put GPs in Crossfire” (Guardian 04/01/13) testify to the collateral damage.  How poignant that children’s health can become part of the battleground between warring parents.

Divorce and child custody

What are intended to be legal responsibilities morph into rights to be fought over and inevitably, children and their wellbeing are likely victims. Christmas cheer can come with a high price tag, emotionally and financially,  where parents are trying to compete rather than cooperate. Divorce lawyers from Glasgow to Inverness, from Edinburgh to Aberdeen and points north and south are only too well aware of the emotional damage all this causes and also of the impact of stress on couples facing financial  problems.

Squabbles over access to information about children’s health and arguments over money don’t seem the jolliest way to start the New Year.  The good news is that there are ways of making separation a transition rather than war.  Using Mediation or Collaborative Practice in particular can allow parents to remain a team for their children after separation.  The challenge of  making money go round two households instead of one can be tackled to minimise the impact rather than diminishing the money available by fighting over it.  Instead of  allowing a separation battle to injure their children, parents can provide a good example of how to deal with differences constructively.

Useful Links: 

The Right Kind of Divorce – Collaborative Process

Welcoming 2013 – Lawyers of The Right Kind of Divorce

At this time of year every magazine and newspaper tells us how to cope with the stress of Christmas – whether it is the endless “to do” list, the mounting cost or too much time together!  It is also a very difficult time of year for those who are in a relationship that has broken down and do not feel that the enforced jollity applies to them.

If you have come to this site looking for a different approach then a consideration of all the information available will let you see that as you pause at the start of 2013 you can make choices about how you approach your separation.  There is no right or wrong way but there are options.  You may need to litigate or be willing to collaborate.  An experienced divorce lawyer will help you to approach your separation in a way that is right for you.

Make it your New Year’s resolution to obtain proper advice and avoid costly and stressful mistakes.  Hopefully by next year you will have been guided through this process and look forward to a happier Christmas.

Useful Links:

The Right Kind of Divorce – advice and connections for your peace of mind

Costly Mistakes in Divorce or Separation (Family Law)

Recent Articles in the Press have highlighted examples from many divorce solicitors of couples fighting over household goods.  One solicitor recounts the case of a couple running up a bill of £2,000 over who should retain bed linen.

Pillows and Quilts - who gets the bed linen in a divorce?

A further legal firm estimated that twenty per cent of divorces were effected by disputes over inexpensive possessions.  I, like many family solicitors working in this field have my own stories to tell about lengthy legal discussions over trivial items.  All family solicitors who have dealt with feuding couples know points of principles cost them dear.  The solicitors who specialise in this field need quite particular skills and knowledge that are not often associated with solicitors in other fields.

They need to understand the complexities of adult relationships and appreciate that many decisions and battles over innocuous items are influenced by other factors such as insecurity, anger and fear.

Any good divorce solicitor will have an insight into those factors and will be able to properly advise the client on the availability of alternative methods to resolve their dispute, such as mediation or collaborative law.  There are many benefits to considering those approaches which often consider a holistic method of dealing with any separation or divorce, looking at financial matters, housing issues and the care of the children.

The skill of a good divorce solicitor is whilst they understand that the needs of both parties will almost certainly conflict, we appreciate that compromise will be necessary and can reassure the client whose view will often be clouded by the emotion of the situation.

The moral of the story is think carefully about how you wish to approach your separation and avoid the emotional and financial strain of fighting over the frying pan.

– From a Divorce Lawyer’s point of view, covering Glasgow and Edinburgh, Specialising in Family Law (Separation, Family Matters including Children and Court). You can contact myself, and the rest of the Scottish team, here.

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Divorce & Marriage

It has been an interesting summer for those of us with an interest in family law.  

Celebrity divorces often make the headlines as the media scrutinise the lives of the people in question.  Very often these divorces involve high conflict litigation with well-known, expensive attorneys charging hundreds of pounds an hour, the PR people ramping up the profile and the whole situation turning into a bit of a circus.

It was therefore quite refreshing to note what happened in the Cruise/Holmes separation. Within 10 days of announcing the divorce, despite the media’s attempts to raise the temperature with reference to cults and other speculation Tom and Katie decided that they should settle their affairs quickly and announce that they were

“working together to accomplish what is in our daughter’s best interests”

The case was settled and the terms of the settlement were not revealed.  I would be fascinated to know what went on.  The news was that various high profile attorneys who specialised in family law had been recruited on both sides. In the normal course of events, without wishing to be cynical, I would have thought that it was unlikely that this would mean that the case would settle quickly. It seems however that the parties themselves drew a line in the sand and said that they did not want their affairs being made public because their daughter would suffer as a result. If that is the case then, bearing in mind people of this ilk live off publicity I think what they have done has been admirable.

I do believe that while it may have been neither a formal mediation or collaborative process that brought the case to an end, the skills that the lawyer would bring to bear in such a settlement would be very much based on these principles rather than the different abilities that are required for litigating a case.

But before you can get divorced you have to get married and I think all of us will have been following the debate in England and Scotland relating to the proposed legislation in respect of same sex marriages.  The issue has become political and philosophical as well as legal.

In both countries, in terms of financial provision the rights of the parties on divorce or on dissolution are identical nor is there any issue in relation to what is in the best interests of children.  I think politicians had the idea that these new provisions would be accepted into law quickly but as can be seen the entire topic raises strong theological emotions. Because of this I suspect that some of our leading politicians may take the view that this legislation should be put on the back burner at least until they are re-elected.

It is not necessary to enter into marriage or a civil partnership for legal disputes in relation to the end of relationships to arise. In fact some of the most complicated cases recently involved co-habitees rather than those who chose to get married.  For a lot of people who have maybe not kept up with the way the law has progressed all of this may come as a bit of a surprise.  RKD’s own statistics show the area of  family law that most people are not aware of relates to claim where co-habitees cease to cohabit.

Sometime ago legislation was brought in to try and simplify the position. The Family Law (Scotland) Act 2006 is the Act in question and since its introduction there have been a number of reported cases which attempted to show that to separate one’s finances after cohabitation can be more complicated than after a marriage or a civil dissolution.

In light of this practitioners were hoping that the Supreme Court decision in Gow -v- Grant would clarify the situation once and for all.  That same case had been before the Court of Session (Scotland’s highest civil court) and that court had offered a fairly restricted view of the legislation limiting claims to the strict letter of the law.

In a fascinating reasoned but ultimately inconclusive opinion Lord Hope and his colleagues have possibly inadvertently opened up the whole area by suggesting a more liberal interpretation that should include consideration of what is fair and what is not.

While the word “fair” appears in the Family Law (Scotland) Act 1985 which governs financial provision in relation to married folk there is no mention of the word “fair” in the 2006 Act. An area of law that was pretty grey before the Court of Session decision but then became more black & white is now a different shade of grey.

– From a Divorce Lawyer’s point of view, covering Glasgow and Edinburgh, Specialising in Family Law (Separation, Family Matters including Children and Court). You can contact myself, and the rest of the Scottish team, here.

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Divorce rate in Scotland dipping

In 2011 divorce rates fell for the fifth year running but with the pressures of every day life increasing it seems unlikely that this is as a result of an outbreak of matrimonial harmony.

There are significant underlying reasons. In 2006 the law changed allowing people to apply for divorce more quickly after divorce. Lots of folk took advantage of this and the divorce rate spiked. Each year since then the rate has fallen.

The real discussion relates to how the dificult economic climate is impacting on the decision to separate. There are so many factors to consider before  making the move and finances play a major part. Worries about the ability to cope with the cost of living in two different places and the knowledge that the family home may not sell for a year could understandably have the effect of making a decision against the split or at least putting it off until a better time.

For these reasons it seems to me that far fewer people will decide to separate over the next few months. But the underlying problems that suggested that separation was on the cards do not disappear. They remain and I am sorry but they fester.

Relations between mum and dad deteriorate and the kids suffer as the angst increases. The worry is that matters will come to a head in an uncontrollable way rather than by careful planning and that would not be in the interests of anybody.

Related New Item (Scotsman): http://www.scotsman.com/news/scottish-news/top-stories/scottish-divorce-rate-down-due-to-economic-climate-1-2162516

Link: The Right Kind of Divorce