Our colleagues in England have decreed, through their family lawyers’ association Resolution, that this is Good Divorce Week! A strange week to choose given that few people choose the weeks before Christmas to split up the family, and fewer still would put a divorce on their Santa wish list. But there is an important message here.
A separation from a partner or spouse will inevitably be one of the most traumatic events in a person’s life. But the resultant legal process doesn’t need to add to the trauma and, if handled sensitively by your legal team, you can emerge from the tunnel of darkness with feelings of positivity and looking forward to the future. If matters are also handled sensitively on the other side you might even leave the marriage with respect for your ex restored.
Contrary to popular misconception, divorce lawyers rarely talk about winning or losing cases. When first instructed by a new client the initial goal of a good divorce lawyer will always be to establish as full a picture as possible of the background to a client’s case, including the needs of the children and the financial picture; what his/her concerns are; and what goals the client is seeking to achieve. It is often necessary to rein in a client’s expectations as to what can realistically be achieved because the other spouse will have a different view of the case to be considered. The yardstick for the advice tendered will always be what a court might be likely to award BUT the goal will always be to avoid court if at all possible. If an unrealistic assessment is given of the prospects for the case the result will inevitably be either a traumatic, fruitless and expensive court case or, at best, a frustrating and ultimately disappointing negotiated settlement.
The approach which I have outlined applies both to child related issues and to matters of finance. In relation to children, when I began my career 40 years ago a large number of cases involved a “custody battle”. Happily the landscape has changed completely in the intervening period and, with sensible and sensitive legal advice, parents are generally able to resolve matters in relation to kids without acrimony. Most parenting arrangements now involve a significant element of shared care. Financial matters are generally more contentious.
Very occasionally crucial points of law arise in a case which can justify going to court because the outcome could not be realistically predicted. But in the vast majority of cases an assessment can be made as to how a court would determine the issues in the case. Sometimes your spouse can be so pig headed that there is no alternative but to raise an action of divorce in court in order to compel him/her to come to the table. However in the vast majority of cases which go to court a settlement will ultimately be achieved. In only a tiny percentage of cases does a Sheriff or Judge require to make the final decision – hence we do not talk about winning and losing.
The crucial point about all of this is that if you are going to have a “good divorce” both you and your spouse need to instruct experienced solicitors with real expertise in family law. That will result in the issues being quickly focussed and a process begun with the aim of achieving a mutually satisfactory settlement at an early date. There are a number of methods available for seeking such a settlement including collaboration, mediation, arbitration and good old fashioned negotiation. Your solicitor can advise you which route would be best to go down in the particular circumstances of your case.
One of the drivers for our friends in England promoting Good Divorce Week is the damage which can be done to the ongoing relationship with your spouse – and if you have kids you will have an ongoing relationship, like it or not! – resulting from the need to establish one party’s fault if divorce is to be granted less than two years from separation. As a result of this, there has been a great deal of pressure to move to a less adversarial system. This has resulted in the Divorce, Dissolution and Separation Bill receiving Royal Assent earlier this year. In terms of the legislation to follow, England and Wales will move to a “no fault” divorce system, most likely from Autumn 2021. There has not been the same push for change in Scotland, primarily because we have had a much more enlightened approach as a result of a change in the law in 2006. Divorce can be granted by mutual consent a year after separation and that time can be used to achieve the type of mutual settlement which I am advocating.
Of course, some divorces are so bitter that they could never be regarded as good in any way. But in the vast majority common ground can be found and settlement achieved. I have always said that in my 40 years in practice the most satisfying cases were never the “wins” in court but those where a separating couple divorced with their respect for each other either intact or restored. That is what I would call a “good divorce” and it is easier to achieve than you might imagine.
If you would like further information on the topic discussed in this blog, please contact Alasdair Loudon by email: firstname.lastname@example.org or by phone: 07980 014 981. You can also view Alasdair’s profile by clicking here.
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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.