A Very Modern Divorce: the new rules of splitting up
Posted by: Sue Atkins
In England and Wales, there are still only five ways to get a divorce and three of those involve living separately for at least two years.
Divorce in the UK can be messy, drawn out and extremely painful for the whole family.
But it doesn’t have to be like this.
As Nigel Shepherd, chair of Resolution, the campaigning organisation of family lawyers, & head of family law at Mills & Reeve said, ‘We’re still working in a divorce system we’ve had for decades, which is why we’ve been pressing for many years for the introduction of a ‘no fault’ divorce system.
If you want to get divorced quickly, you have to do it on the basis of adultery or unreasonable behaviour. “You end up in what we call the blame game,” says Shepherd. “Particularly with unreasonable behaviour, when neither of you really wants to blame the other – you try to get allegations that are as mild as possible, and least upsetting as possible, but still strong enough to get over the unreasonable behaviour hurdle. People are having to kick off divorce proceedings with a discussion about blame. Even if you say to them, ‘This is just the system unfortunately, we have to go through this game,’ it still upsets people.”
But there are other ways that are emerging that may make the process less drawn out and painful.
Baroness Hale of Richmond has called for a ‘no fault’ divorce to be introduced.
There is a private members’ bill to introduce a “no fault” divorce, and Baroness Hale, deputy president of the supreme court, called for it to be introduced as a previous act, introduced over 20 years ago, which would have allowed for a more amicable process, was never implemented and was eventually scrapped.
“What we really want is for the government to pick it up and introduce a piece of legislation. But it’s always been a bit of a political hot potato,” says Shepherd. Past objections have been on religious grounds, or from people who say it will make divorce too easy and undermine marriage.
Divorce law needs to be modernised, to adapt to life in the 21st century, and we still need to move forward in the way we approach, view and discuss the end of a marriage.
Do it yourself
Earlier this year, football presenter Gary Lineker, whose marriage to his second wife Danielle has recently ended, took issue with divorce lawyers. “It’s very easy to get married and very difficult to get divorced,” he said. “And we know that lawyers try to manipulate it to make you spend more money and basically end up hating each other.”
I’m not sure I totally agree with Gary, but it is a general perception of the families I work with, that the clock does start ticking once you walk into a lawyers’s office or call them on the phone, which adds to the feelings of stress, insecurity and panic.
More and more people are choosing to represent themselves.
According to a recent survey, around 40% of people no longer use lawyers in their divorces as it mostly comes on the back of legal aid cuts. But getting your divorce right is vitally important for your long term security.
People who represent themselves in divorce cases may not “get the outcomes they might expect or deserve,” says Emma Pearmaine, director of family services at Simpson Millar. It can also slow proceedings down. “Divorce is a horrid thing to be experiencing and we need to come to a conclusion as quickly as we can to the benefit of the whole family,” she says.
It also forces the other person, acting with a solicitor, to shoulder more of the costs. The consequence of legal aid cuts and people representing themselves is, she says, “affecting a whole generation of children.
Previously a parent on a low income might have been eligible to go to court so they can see their child. Now if they’re not eligible, they might have to make an application themselves, or they don’t make an application at all. That suggests to me that we have a whole generation of children who are not having the right relationship with both parents.”
This is very worrying.
I remember being interviewed on Sky News to lots of sighs and mocking of the rather ‘new age’ language when Gwyneth Paltrow announced that she and her husband, Coldplay singer Chris Martin, were “consciously uncoupling”. But putting US new-agey language aside this approach seems pretty sensible, less hard on the children since it’s based on love and respect for the other person, and many couples now seek to working through the end of their marriage in a way that minimises conflict.
Marking The Occasion
When I am working with parents I encourage them to put a lovely photograph of their children in the centre of the table as we discuss my comprehensive Parenting Plan’ – then we go over who has the children at Christmas, their birthdays, mid week or if the couple want to co- parent all the nitty gritty details of school shoes and reading books as well as rules around bedtime, Internet access and mobile phones.
Also I find talking through my 7 Stages of Divorce helps couples understand that it is a PROCESS not an event.
I sometimes help parents mark the end by creating a ceremony to honour the end of their relationship as it changes …..
Get it sorted in a weekend
In 2011, Jim Halfens, an entrepreneur from the Netherlands, set up Divorce Hotel. He had seen a friend go through a divorce and thought it seemed much more complicated than it needed to be, so he came up with the idea of getting everything done in one weekend:
“You know when it starts, when it ends and what it costs,” he says. “The divorce industry benefits from making divorce procedures too complicated.”
At the moment, Divorce Hotel is only running in the Netherlands and New York state in the US, but he is planning to bring it to the UK and I am looking forward to chatting with Jim today about exploring how that would work.
The soon-to-be-former couple go to a hotel, away from partisan in-laws or friends, and on Saturday morning sit down with a lawyer who is specially trained in mediation. Talks continue all weekend – sometimes involving accountants, estate agents and counsellors – before papers are signed on Sunday evening.
I’m interested in this approach because it removes ‘The Blame Game’ & gives clarity, direction and confidence while not undestimating the sadness and distress of divorcing.
The process is not for everyone, says Halfens, and nearly a third of couples who approach him are turned away. For a start, a couple need to be able to talk to each respectfully, in person, over a whole weekend. Custody of children is not discussed, so a parenting plan has to already be in place. “If you’re not able to wish the other person a positive future, you’re not suitable to come to us,” he says. “You need to be dedicated. You have a deadline and you know that if you don’t make it before Sunday evening, everything is for nothing. It’s a very important goal to realise.
It’s for the couple to make a positive, bright new start, not irritate each other and delay the procedure for months.”Is a weekend enough time to uncover hidden assets? “We don’t have weeks to find out about bank accounts,” says Halfens. “People need to be 100% transparent about possessions. We have had situations where the couples were not honest with each other, for example the mediator finds out there is a house in Switzerland or a bank account. Then it all stops, because divorce hotel principles are fundamentally based on mediation.”
When the papers are signed, some couples say a chilly goodbye and leave, but most of the time, it’s quite special, says Halfens. “Sometimes it’s a moment of joy, sometimes it’s really emotional and people choose to play their favourite song for the last time.”
Parents Move Around
Usually in a divorce, if you have children and shared custody, or are co-parenting, the kids shuttle between your homes, but a relatively new idea, imported from the US, is that the parents should be the ones to do all the moving – and it’s catching on!
The family home (the “nest”) is maintained – either the existing one, or a new one – and the children stay there, while each parent takes it in turn to move in for a few days every week, while the other one stays at their home.
The idea is that the children get continuity during a time of disruption – their own bedroom, toys, all their school stuff in the same place – and it can work out better, financially, for the family because only one property needs to be big enough for the children, and costs can be shared. It would be up to the family to decide if this was right for them, not a judge.
I can’t envisage a situation where a court would impose it as you really need to get on quite amicably with your ex, and of course things radically change when one or both of you meet a new partner.
But there are beginning to be other ways of parting with dignity, respect and less damaging ways forward for the children.
What is your experience and what do you think of these ideas?