GOOD DIVORCE WEEK: Divorce Pragmatism at Last!

This week marks Resolution’s “Good Divorce Week”. Good Divorce Week provides an opportunity to highlight and promote the various options available to couples when considering Alternative Dispute Resolution (“ADR”), a process which can facilitate and enable the resolution of final terms and agreement upon divorce. This might include children matters, sorting out the finances on divorce or any other intricate family law issue that couples may be facing, which requires expert opinion.

As with many other public services at the moment, the family court system is overstretched and suffering from resource constraints.  It is currently struggling  to assist families who need a swift resolution to their problems and is under considerable pressure to help those who are most vulnerable and in need. Due to this system failure, many couples are unfortunately left with no choice but to remain embroiled in what is often contentious litigation and spiralling legal fees.  Furthermore, and in light of Jeremy Hunt’s recent Autumn Statement announcement, there is also little prospect of any significant change in the foreseeable future. Regrettably, if anything, the situation is likely to worsen given the current economic climate.

However, it isn’t all doom and gloom and due to the introduction in April of the new “no fault” divorce there is a new optimism that, at last, our legal system is modernising and has recognised something needed to be done.  This radical new direction has overhauled the divorce process (something that had not changed since 1973 with the introduction of the Matrimonial Causes Act 1973). The beneficiaries of this “less blame” approach will be the couples who can now navigate through a difficult divorce process without feeling the need to attribute “blame”. This makes for a more collaborative route to dealing with the financial matters on divorce and/or children issues and is definitely a positive step in the right direction.  Most importantly, in these cases the elimination of “blame” takes away stigma and finger pointing, enabling them to have the option of “being grownups” and taking mutual responsibility to resolve their differences in a more constructive framework.

We are also now seeing new life-style patterns and choices emerging that are impacting on the traditional view of marriage. Young, ambitious individuals are prioritising further education, travelling and career goals over romantic commitments. For many, financial success and independence is often seen as a priority before considering a commitment to marriage and, for those who do choose to get married, the decision to have a pre-nuptial agreement is a pre-requisite that allows for successful wealth and asset protection.  We can also see statistically divorce rates have increased year on year.  The common belief in previous generations was that couples were stuck and destined to remain in “unhappy marriages”  (enduring the stigma invariably attached to a failed relationship) whereas today, individuals are more willing to end their marriage if they are involved in an unhappy or unfulfilling relationship and are less daunted by the prospect of moving on.

So what constitutes a “Good Divorce” and does divorce always have to have a negative association? 

Any individual who goes through the divorce process is undoubtedly shaped by this profoundly formative yet, often, negative and emotionally draining experience. Many who divorce are faced with a new reality which means they have no choice but to process in a very short space of time all sorts of new and raw emotions (often ranging from anger, humiliation, shame and denial) whilst simultaneously wrestling with the realities of moving forward with everyday life and adjusting to new financial circumstances.

The new “no fault” divorce facilitates a new route to enable couples to take equal responsibility for ending their relationship and moving forward individually. It’s great to see the positive way that the introduction of no fault divorce has been received.   We, in the legal profession, now need to grasp this opportunity and work with our clients to achieve a good divorce. With professional encouragement and guidance we can steer our clients towards achieving a successful, collaborative and constructive resolution to their problems.

From a family lawyer’s perspective, a “good divorce” means listening to our client’s wishes and concerns and tailoring our advice to suit their specific needs. It is about ensuring our client is fully aware of all the various methods of ADR and deciding which one suits them best (with the overall caveat being that any form of ADR has to be agreed to on a voluntary basis). My approach has always been that unless there are safety concerns court action should be a last resort.  Working outside the court process enables a couple to take control of the overall process and save substantial costs.

There are various options of ADR including:

• Mediation;
• Arbitration;
• Collaborative law.

Dealing with finances on divorce is rarely an easy process involving the division of assets, some of which one spouse may be very attached to; alternatively, it may require the sale of the former matrimonial home. Many couples now choose to enter into a pre-nuptial agreement so that they can avoid this uncertainty and quickly achieve clarity in terms of how assets will be divided in the event of divorce.

The provision for children is, perhaps, the most difficult area of ADR between two adults when ‘negotiating’ child arrangement issues. If we can approach divorce in a more holistic manner then ultimately the children of these relationships will be better served.

Fortunately, we are seeing the dawn of a new cultural change towards divorce and its ramifications with the system modernising to assist and facilitate the resolution of matrimonial issues and provide a more constructive and reassuring framework for couples to move on with the next chapter of their lives supported by family law specialists.