Collaborative Divorces in South Africa Explained

What is a Collaborative Divorce?

A collaborative divorce is a legal divorce where couples negotiate all the terms of their divorce using a combination of mediation and negotiation to reach an agreement on the critical terms of their divorce (e.g. property and debt division, child access, child maintenance and spousal support).

Thus, this form of divorce is considered an alternative dispute resolution method. The respective spouses are each guided and aided throughout the negotiation process by their respective divorce attorneys.

Step 1: Initiating the Collaborative Divorce Process?

First and foremost, the collaborative divorce process has to be by agreement between the two respective spouses. This requires that the divorcing spouses are both willing to negotiate and work together with the view of agreeing on their divorce terms. If either party is unwilling to participate, a collaborative divorce won't work.

Step 2: Finding A Collaborative Divorce Attorney

Once the divorcing spouses are in agreement that they are willing to participate in a collaborative divorce process, each respective spouse will then need to hire their own divorce attorney on a limited retention basis, solely for the purpose of the collaborative divorce process. When choosing a collaborative divorce attorney, it is important that you find an attorney who has experience in collaborative divorce proceedings and who is pragmatic and willing to use alternative dispute resolution methods (e.g. mediation).

Experienced collaborative divorce attorneys should be able to make a win-lose divorce into a win-win settlement for both parties, whilst at all times having your best interests at heart.

Step 3: Participation Agreement

The divorcing spouses and their respective attorneys will entered into a written participation agreement where they bind themselves not to approach the courts during the collaborative divorce process. A key term of this agreement will be that in the event that the collaborative divorce process terminates, both spouses attorneys mandates will terminate and the attorneys will no longer be able to continue to represent the respective spouses in the divorce proceedings/litigation thereafter.

Step 4: Without Prejudice Meetings

Once everyone has executed the participation agreement , the divorcing spouses and the respective attorneys will then meet (a.k.a 4 way meeting) in good faith with the view of engaging in open and honest discussions with the view of negotiating and agreeing upon the terms of the divorcing spouses divorce.

Step 5: Divorce Settlement Agreement

Hopefully at the end of the collaborative divorce process, the parties will have reached an agreement in respect of the terms of the divorce and which terms will then be reduced to writing. This settlement agreement can be made an order of court should either party wish to do so.

Collaborative vs Mediation

In collaborative law, there are 4 parties involved in the process i.e. the respective spouses and their respective legal representatives (to assist with negotiations).

In mediation, there are 3 parties involved i.e. the respective spouses (who may or may not be legally represented) and the mediator who is an impartial and neutral figure who oversees the process.

Barter McKellar has extensive experience in assisting clients in collaborative divorce proceedings. If you would like to find out more or would like to schedule a consultation with one of our divorce attorneys, please contact our offices.