How the Court System Turns Divorce Into a Battleground
While the Incoming Divorce, Dissolution and Separation Act 2020 will smooth the path to divorce in the UK, it is unlikely to wholly resolve the glut of hostile separations that are being fought in the courts. Below, Kate Daly offers an alternative approach to the divorce litigation problem.
We have a legal system that it is the envy of the world. Unfortunately, it is not the envy of divorcing couples or parents trying to agree arrangements to see their child. In fact, it is the antithesis, adding stress to an often already toxic mix of emotions. Our adversarial system relies on creating ‘two opposing sides’, polarising arguments, promoting one side at the expense of the other and ultimately involving the court to impose a solution. All this at tremendous financial and emotional cost and the erosion of access to justice.
The current approach is broken. People rarely feel satisfied, and the process can quickly descend into a zero-sum game of “I win, you lose”. In short, the system escalates conflict by design.
The court is an expensive and scarce resource and most legal professionals agree it should be reserved for the most difficult cases where the protection of court is needed. We know that cooperation and coordination produce better outcomes (The Prisoner’s Dilemma). It follows then that, when trying to resolve most family disputes (those that fall outside the need to involve the court), we should be looking to a system that promotes cooperation, coordination, and communication.
Many lawyers are deeply frustrated by the system in which they work, and most will greet the recent no-fault divorce legislation, set to start this autumn, as a welcome step forward. The removal of the ‘five facts’ in the Divorce, Dissolution and Separation Act 2020, and their replacement with a statement of irretrievable breakdown and an option for a joint application goes a long way to de-escalating the conflict that permeates the current system.
While this legislation is largely just playing catch-up with the way many of us have been trying to resolve issues for years, it does represent a step towards healing the broken court system. But more broadly, we have reached a point where the government must rethink how it handles family matters entirely. The recent decision to offer £500 in tax-free vouchers to separating couples to go to mediation, whilst welcome, was far too narrow in scope. What is really needed is complete overhaul.
At present too many people end up in the court system, and once in the system it is hard to get out. It is the equivalent of heading down a one-way street. If we only look at the ‘system’ or ‘alternative processes’ for getting divorced, we will never create lasting change. Instead, we need to think about how we deal with relationship breakdown as a civilised society.
At present too many people end up in the court system, and once in the system it is hard to get out.
This is a subject close to my heart. Whilst training to become a Counselling Psychologist I researched the process of relationship breakdown and the emotional journey people go on when they end a significant relationship. It is clear from the data that as we live longer the likelihood of having only one significant relationship is ever-diminishing. People expect to experience relationship breakdown and yet we are not skilled as a society at handling it when it happens.
The research shows there are very raw emotions being processed and stress and fear are prevalent. At times when we are emotionally processing (and close to being overwhelmed), we find it harder to make good decisions (those that serve our interests in the longer term or create a ‘greater good’ scenario rather than short-term pay-off). Unless we address this emotional journey and learn how to support and guide people through it, we will keep ending up with people in an overwhelmed state being funnelled into an overwhelmed court system.
If we want to change the numbers, we need to reframe how we think about relationship breakdown. Instead of seeing the ending of a relationship as a battleground – and one that requires a legal expert or process to resolve – we should be looking at separation and divorce as emotional processes that have both legal and financial consequences. If we attend to the emotions and human consequences of separating first, we give people an opportunity to choose better ways to resolve financial and children issues. We free people up to cooperate, communicate and coordinate.
There needs to be a public information campaign to make it much clearer to separating couples that divorce and separation are emotional issues, and that is where people should first look for support and be signposted to when their relationship breaks down.
Next, we need to break the link between divorce and going to a solicitor. There should be a neutral service that gives people support and information on the different options and help available to them whatever type of significant relationship has broken down. The purveyors of one option (solicitors) should not be the conveyors of all options.
A neutral relationship breakdown service should be supported by the introduction of a triage system that gives people different options, based on their individual circumstances, and could help people understand which process is right for them. This needs to extend beyond signposting people to mediation, looking at the wide variety of tech and human help that now exists. We need to drop the pursuit of a gold standard legal approach to divorce and adopt a cost-proportionate approach that serves all citizens.
Most people we speak to in the amicable service are keen to tell us they have not done this before, and they do not know what they are doing. This is completely understandable; nobody gets married thinking it will end in divorce, but it means much more neutral guidance and information is needed for people, so they do not wrongly end up in the court system.
Protecting children must be our priority when conceptualising a societal change to relationship breakdown – what better motivation is there as a parent? That is why we are supporting the “Parent Promise”, which was launched this month by the Positive Parenting Alliance. The promise encourages parents to plan for how they will parent if their relationship breaks down before it does. Cultural changes can be powerful and agreeing to discuss parenting arrangements in the event of a separation or divorce when couples are still together could help to improve outcomes for families if relationships do break down.
Protecting children must be our priority when conceptualising a societal change to relationship breakdown.
The need for reframing and rethinking as a society is urgent. No-fault divorce legislation will pass at a time when divorces are at a seven-year high and are expected to increase even further following family tensions that have been fuelled during lockdown. Latest Cafcass figures show a 40% increase in private law cases since the start of the pandemic. Not only will a system already stretched because of COVID-19 face a huge increase in new cases, but a huge number of previous cases will be returning to courts as well. Whether this is to negotiate first-time arrangements that the pandemic has exacerbated through job losses, or more difficult situations such as parents using the pandemic as an excuse to withhold contact, the court system will be overloaded by problems that would benefit from being resolved quickly.
The adversarial legal system is not the right way to handle divorces. But changing the system without changing the perceptions of the people using it is doomed to failure. It is still far too common for people to think that using the courts is the only way to get divorced. Pursuing other paths and keeping things amicable often achieves better outcomes. It can help you preserve a better relationship with your ex-partner, save you money in solicitor’s fees, and most importantly, protect children from a harmful process. Divorce is a reality of life; it does not have to be a battleground.
Address: amicable, PO Box 73636, London, SW14 9BZ
Tel: +44 (0)203 004 4695
amicable is a solicitor-free legal services company that provides divorce services to couples looking to end their relationship.
Kate Daly is co-founder of amicable and a divorce advisor specialising in non-conflict divorce. Her background is in psychology, conflict resolution and negotiation. She also hosts The Divorce Podcast.