Divorce has a terrible reputation. Say the word, and I guarantee none of the associations you think of will be positive: conflict, acrimony, guilt, a long and painful process and disproportionate expense.
Why? If you ask that question, which I often do, the two key culprits most people cite are either the unreasonable ex-spouse, or the lawyers.
Getting To Know Both Sides
In many years as a family law barrister I have seen a huge number of couples go through the divorce process. As co-founder of The Divorce Surgery, a unique service which enables separating couples to share one impartial lawyer who advises them both, I have the privilege which many family lawyers don’t, of getting to know both sides.
What I can say with real certainty is that the reason divorce has a bad reputation is squarely down to the process, which pits spouses against each other from day one. I have worked alongside many family law solicitors and barristers who are brilliant, hugely collaborative and always looking for settlement but they are straight-jacketed by a process which is adversarial and, for many couples, simply not fit for purpose.
Changing The Default Process
Most couples I meet do not want to pull the wool over the other’s eyes, or achieve a result which is manifestly unfair. Those cases do exist, and certainly must be subject to the full weight of a rigorous Court examination, but luckily they are a tiny fraction of the total. In my experience most couples have one requirement from the legal process, which is to achieve a result which is fair to each of them. And that instinctive first reaction is the perfect one, because it matches precisely with what a Family Judge, at the end of the day, will be tasked with doing, whether that is in deciding the case at trial or reviewing an agreement the parties have reached and deciding whether it meets the legal concept of fairness and should be converted into a binding Court Order.
But the difficulty with the default process for obtaining legal advice on divorce, is that it forces couples from day one to instruct separate solicitors. At the point when they are probably most receptive to an impartial view as to where fairness lies, they are driven apart. And so begins a long journey during which each will receive separate legal advice, that they won’t share with the other because of legal privilege. Inevitably during that time they will receive different legal advice, driven by the fact that they will be giving their own very subjective versions of history to their legal teams.
Building Trust Not Resentment
All the financial disclosure is carried out in separate camps, and it is usually several months before that information is exchanged, and the solicitors on each side can start to determine what the financial picture might really look like. But by that stage, for many couples, the damage is done. They have stopped communicating directly. They have certainly stopped talking constructively and openly about what a financial outcome or an outcome for the arrangements for their children might look like. They may have convinced themselves that the position taken by the other is unrealistic. Their individual objectives are likely to have become to some extent entrenched. Mistrust builds quickly.
It is extraordinary the extent to which, in family law litigation, the clients never speak. I surprised even myself when I realised that in a case where I am instructed on behalf of the wife, I, and any Judge hearing the case, will probably never hear the husband utter a single word unless the case goes all the way to trial, when the first time I will hear him speak will be in the witness box. The same of course would apply to the wife. Even if settlement discussions are attempted (often described as round table meetings), the clients will be in separate rooms, with the lawyers meeting in a third room. Everything these spouses think and feel about what is fair in their situation will be carefully relayed through the words of their solicitor and barrister.
Dis-entangling An Intimate Human Relationship
The actual couples, whose lives we are all dealing with, are completely passive in much of the process. And the difficulty with that is that this protective screen of legal advisers means that spouses allow and encourage their lawyers to run arguments and make claims they would never say directly to their ex-partner themselves. Of course there are cases with safeguarding, non-disclosure or jurisdictional elements that require that level of professional and legal shielding, but I’m talking about the very many cases which don’t. And I do often reflect, at the end of a case, on the human cost that those legal words and phrases have caused, and the extent to which each spouse is going to be able to live and move on from the things that have been said about them in the height of litigation.
So it is easy to see how this two-sided blunt process is deeply unsuitable for what is at its core the dis-entangling of an intimate human relationship, which requires delicate handling if that couple is to continue any form of relationship in the future, vital of course if they are co-parents.
The Best Solution For Both Parties
So if the main problem with divorce is our default adversarial process- what can we do about it? There are private judging and arbitration options, which speed up the litigation and that is certainly a better way through, but they are still very much adversarial processes. Mediation enables couples at least to sit in a room together and talk about their future options. But it is not a panacea. Mediators cannot give legal advice and are not directive. For many couples they have one question: What is legally fair in our situation? And they need that answer as quickly as possible, while they are still communicating with each other and before they become fixated on a particular outcome which may or may not be realistic and legally fair.
And it is against that backdrop of professional experience that a fellow barrister, Harry Gates, and I set up The Divorce Surgery. We looked at the existing process, and we fundamentally changed it into a completely unique, regulated and award-winning One Couple One Lawyer service.
Enabling couples, from day one, to engage in a joint process, not an adversarial one. To share a lawyer who will give them impartial advice for a fixed fee. It isn’t suitable for every couple, but in many cases divorce doesn’t need to be a battle, for the health and wellbeing of all concerned. It is about changing the culture, the mindset, the model of divorce, for the good of all our relationships and those of our family, friends, children… After all, that is what truly matters.