Every year, Resolution, which is a community of around 6,500 family justice professionals, holds a Good Divorce Week. It is always a really good time to reflect on how we as practitioners should try to provide our clients with a 'good divorce'. Is there such a thing?
This year Resolution is promoting their "Parenting Through Separation" guide, which really is an excellent read for any parents who are going through the separation process. Parents often have so much to think about during this (where they are going to live, if they are going to have enough money to live on) and are sometimes not as focused on how their children are coping through what is a really difficult time for everybody in the family.
There is a rollercoaster of emotions that occurs in any family separation and all too often communication and trust have broken down. In addition, decisions that might have been easily made when together, perhaps about parenting style or schooling, are now so much harder to discuss and often lead to conflict.
Going back to my original hypothetical question - is there such a thing as a good divorce? I am firmly of the view that the answer is yes, although it takes all of the participants (which includes the parties’ lawyers, financial advisers and even their extended family), to make a concerted effort about how they conduct themselves during any divorce and financial process.
How can family lawyers help?
I often think that a reported case is not necessarily a badge of excellence for a family lawyer. It may very well occur because the case involved a technical area of law that needed judicial input following significant legal arguments but this is not always the case. Only recently in the case of Crowther v Crowther, the Judge was very critical of the fact that the parties had argued over virtually everything. They had 34 Court Hearings and had spent £2.3 million in legal costs when their assets at trial were at most £1.3 million. Clearly, Mr and Mrs Crowther found it incredibly difficult to do anything but litigate every aspect of their marriage and finances. There is no doubt that the impact on their three children will have been significant.
It may very well be that this case was always going to be litigated in that way and that the couple in question would never have been able to resolve their differences by using an alternative, more constructive option. However, there are now so many routes available to a couple when they separate that it is vitally important for any family lawyer to explore all options in detail both at the outset and throughout the process. Clients must be given the chance to utilise the best process for their family which can enable them to communicate properly and to perhaps repair trust between them.
When I first started practising, there wasn’t really the option of referring a client to a family consultant who could work with them together as co-parents, or as a family, to try and resolve some of their parenting issues. Equally, co-parenting workshops or coaching courses which provide tools and techniques to separating parents didn't really exist, nor was there such a thing as a trained mediator who could talk directly to children as part of any mediation process. At a basic level, even asking the question "who supports you outside of this process?" didn't really happen.
However, I am very pleased to say that this has all changed and there is now a vast array of courses, literature and help available for parents and separating couples. Signposting to therapists, counsellors, psychiatrists and family consultants is now something that I do routinely in order to reduce the conflict and emotion in a case.
In addition, there has been a steep rise over the years in the methods that we family lawyers can use to settle disputes away from Court. Even in more difficult cases where mediation or collaborative law are not successful or suitable options, instructing a barrister to give a joint written opinion on a particular area of law or having a private settlement hearing are now obvious options. Having a full day private FDR hearing when a barrister (acting as a Judge) has read all of the papers and is fully engaged in the case without having a long court list can be so fruitful. The use of a private court (arbitration) is also an excellent tool to obtain a binding agreement without the lengthy wait for a final hearing with all the trials and tribulations along the way in terms of progressing through the court system.
I am a firm believer in trying to offer clients the best possible separation process and that I, as their family lawyer, should be the last person that adds to their emotional distress. I should instead be the person that provides them with a clear, sensible structure and works with them towards the goal of them separating having all of the details that they need but still moving matters forward proactively so that they can come out the other side to start their new beginning with energy and vigour rather than feeling worn down by the system.
As we ponder Good Divorce Week and utilise the great support network we have, I hope that in 2022 we can build further on how the profession provides a 'good divorce' and what we as family lawyers actually do in our daily work to achieve this.