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How can couples start divorce proceedings on the right footing? No fault divorce and best first steps

Posted on 6 April 2022

From 6 April 2022, couples will finally be able to obtain a divorce without asserting fault or waiting a minimum of two years. Although the changes should help reduce unnecessary acrimony between couples, what other steps can they take to ensure that the divorce starts on the right footing?

Mishcon de Reya Family team Partner, Emma Willing, and Charlotte Fox Weber, Psychotherapist, consider how couples can best approach a separation.

How should couples approach a separation from the outset?

Emma: If couples seek to express their grievances through the legal process, this will often result in them becoming quickly polarised. In the context of legal proceedings, individuals may be inclined to adopt an aggressive approach - however, this will not assist in progressing matters constructively. Most family lawyers are members of Resolution, and will aim to help couples achieve a separation with the minimum of acrimony. This includes seeking to reduce any conflict and confrontation, including by not using inflammatory language in communications. The changes due to be implemented with no fault divorce are a very positive step towards reducing hostility between parties at the outset of proceedings.

As a family solicitor, I often suggest that individuals consider couples' counselling - whilst many people associate couples' counselling with exploring a potential reconciliation, these sessions can also be a helpful opportunity to consider how to navigate a separation. Such therapeutic input can provide a forum for separating couples to discuss strategies for communicating with one another following separation and to put in place mechanisms to support children in a consistent way.

What work are you able to undertake with separated couples in navigating a relationship breakdown, including allowing a space for parties to voice grievances whilst also placing any separation on a civilised footing?

Charlotte: Therapy can help people deal with endings and loss. Unprocessed splits are usually traumatic and leave people in varying states of crises. Couples splitting up or divorcing often think there is no point in seeking relationship therapy together but coming into the same space for difficult conversations can be incredibly meaningful and productive. It can also reduce harm to the individuals in the relationship and for the family and children and friends. Even when divorce feels like war, therapy provides a safe and healthy space. It helps individuals come together to say goodbye and navigate co-parenting with clear and recalibrated boundaries and expectations. Not every rupture can be repaired but acknowledging the wounds and recognising the emotional scars can be deeply beneficial.

Divorce can feel like grief as well as the beginning of something new. It is valuable to explore the revised identities, to consider the roles and responsibilities that come with separation. When both individuals feel witnessed and supported by the therapist, the process bolsters dignity, respect and understanding. Relationship breakdowns are less lonely, isolating, and destructive when there is a process in place. Separation therapy should be as encouraged and ordinary as couples' therapy.

From a psychological perspective what is the significance of seeking to attribute 'fault' at the end of a relationship?

Charlotte: In psychotherapy, we look for shades of grey. We seek nuanced understanding and insight that allows for complexity. That said, there is something satisfactory about the idea of a good guy and a bad guy. Splitting is often how we make sense of situations, even if it is reductive, simplistic and distorted. We split things into good and bad, black and white, right and wrong. It is a mark of sophistication in development when children recognise that a friend has behaved in an upsetting way but is not necessarily a true enemy, or that the same parent who provides can also deprive. It may sound obvious, but we easily forget the shades of grey. Development is an ongoing process and though we refine and cultivate our thinking in some ways, we all hold onto primitive parts of ourselves.

We love being horrified when something outrageous occurs. When we are violated, wronged, insulted, injured, we want to assign blame, and it is a tidy narrative arc if someone is at fault. Blame and fault help us make sense of the absurdity of suffering.

Ending a relationship without asserting fault is mature, wise and utterly sensible. It is long overdue. It does not wash away feelings of vitriol, contempt, sorrow, resentment and all sorts of unpleasant feelings that may come with the dissolution of a marriage. There may be moments of feeling utterly wronged emotionally, even if not legally. Emotions and laws are not always aligned. This law is psychologically helpful in myriad ways but there may still be residual feelings that tell a different story.

What methods are available for couples to resolve disagreements through alternative dispute resolution?

Emma: Separated couples are increasingly seeking alternative options for resolving disagreements whether relating to children or financial matters, not least because of the financial and emotional cost of court proceedings. Methods of alternative disputes resolution include:

  • Mediation;
  • Round table meetings/discussions between solicitors;
  • Early neutral evaluation; and
  • Arbitration.

For separated couples, reaching an agreement through alternative dispute resolution can have significant long-term benefits for them. The couple may feel more invested in an agreement reached by agreement, rather than one imposed on them by a court after lengthy and difficult court proceedings. Further, for couples that have children, it can assist them in building an effective and civilised co-parenting relationship for the sake of their children for years to come.

Now that it will no longer be possible to attribute fault in the context of divorce proceedings, is it possible that there will be an increase in parties seeking to introduce 'conduct' as a relevant factor in financial proceedings?

Emma: Conduct remains a relevant factor for consideration by the court in exercising its discretion in financial proceedings on divorce. However, courts are very reluctant to spend time determining the cause of the breakdown of a marriage and it will only be taken into account by the court if it is of the opinion that it would be 'inequitable to disregard'. Whilst the removal of 'fault' in the context of divorce proceedings may result in parties seeking instead express their grievances by raising conduct in financial proceedings, the court's approach to such arguments will not alter: conduct will only be relevant in a very small number of cases and parties should be discouraged from arguing it.

Charlotte Fox Weber is Psychotherapist and author of What We Want.

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