Removing conflict from divorce

It is now three years since our old, fault-based, divorce system was replaced by a new system that does not require one party to blame the other for the breakdown of the marriage.

The great hope of those who campaigned for that reform was that it would reduce conflict, and therefore make it more likely that divorcing couples would be able to resolve important issues such as child and financial arrangements by agreement.

But a recent article in the Law Society Gazette suggests that, rather than remove conflict, all the reform has done is to push it further along the legal process, with parties raising allegations of bad behaviour by the other party within financial remedy proceedings.

The urge to attribute blame for marriage breakdown is understandable, but it can be incredibly damaging.

Unnecessary conflict within the divorce process can obviously increase the stress that the parties will already be under. It is also likely to make the process take considerably longer than it should, thereby prolonging the stress. And a longer process will inevitably mean a substantial increase in the cost of the divorce.

Avoiding conflict is even more important, of course, if there are children involved.

So how can unnecessary conflict be avoided?

There are various ways to avoid conflict, of which the following are perhaps the most useful examples:

1. Consider joint divorce. The reform of our divorce system may have removed blame from the process, but it still means that in most cases one party divorces the other, and the other party may feel aggrieved by that. However, the reform also introduced for the first time the possibility of both parties applying for the divorce jointly. Joint divorce should therefore be considered as a means of reducing unnecessary conflict.

2. Concentrate on the future, not the past. This can obviously be easier said than done, but it is important to try. Sorting out financial arrangements is all about the future, ensuring that both parties are in the best possible position to move on with their lives. And in any event, the court will not generally be interested in who is to blame for the breakdown of the marriage.

3. Don’t bring up irrelevant issues. This is a very common mistake made by parties to financial remedy proceedings. As important as past events may seem, they are often of no relevance to the financial settlement. Parties should not use financial remedy proceedings as a means to ‘throw mud’, by bringing up allegations of bad behaviour by the other party. It must be remembered that bad conduct is very rarely relevant to financial issues.

4. Have reasonable expectations. Many people enter financial remedy proceedings with unreasonable expectations, expecting for example to be able to ‘punish’ their former spouse by getting a more generous financial settlement than they are entitled to. But this will only result in dragging things out and increasing costs. It is therefore essential to take expert legal advice as to what settlement you can expect at an early stage, and follow that advice.  

5. Lastly, consider mediation. A trained mediator will help the parties to resolve matters by agreement, rather than by expensive contested court proceedings, and will endeavour to keep conflict out of the mediation process.

You can read the full article in the Law Society Gazette here.

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