More good news (in our view) from divorce lawyers as they are increasingly recognising that the adversarial divorce system we have in the UK is exacerbating the adverse impact of family breakdown and needs to radically change. A huge shift is underway to move divorce from the ‘adversarial ‘norm’ and a recent survey showed that nine out of ten divorce lawyers supported a move to leave divorce courts out of divorce - they prefer not to go to court.
According to insidedivorce.com recent research carried out by Grant Thornton found that nine out of ten divorce lawyers would prefer to see greater emphasis on a less confrontational and more collaborative approach where couples work together with their legal advisers - and in some cases external specialists - to reach an agreement without the need to enter a court room.
Andrew Woolley, of Woolley and Co. commented: "We fully support this approach. Taking a case into a court room leads to spiralling costs for clients, drags the process out and does not guarantee an agreeable outcome for everyone anyway."
"It can also be traumatic for all parties, especially if there are any children involved."
"Sometimes there is an assumption from a client that to reach a fair financial settlement, or reach agreement over the children, they have to battle it out in court. TV and films could have a lot to answer for in that regard."
"Sitting down with their lawyer and stating what they reasonably would like, and keeping a civil relationship with their estranged spouse, so that they can come to an agreement without heading to court doesn't make good entertainment. But it will make the process much less traumatic and no less fair."
In our last newsletter we brought you news that senior family judges were making it clear that the system they have been working with for the last few decades is badly failing to help splitting families. Headlines like ‘High Court Judge warns family breakdown is as big a threat to national life as global warning' are an indication of how serious the problem is. Our clients are usually looking at ways to stay out of court, however the reality is that they are in court, or facing court. Why is this? I’m not a mathematician but surely if 9/10 divorce lawyers don’t want to go to court (according to the Grant Thornton survey above) and 9/10 The Divorce Coach clients don't want to go to court either, there should be less people destined for the divorce courts!
It's our view that they are normally in court because their partner won't engage with the process and sadly (for the client and usually their family too) those litigious partners will find a family lawyer who support them in ‘fighting it out' in court.
Will a future combination of divorce lawyers wishing to stay out of court and divorcing people wishing to stay out of court too reduce the amount of cases ultimately ending up in court? I suspect not - because starting litigation is often the only way of forcing the party who is dragging their heels to take action. Such are the delays in central London courts (and I’ve been told by divorce lawyers that decisions have to be made early on to commence litigation because there is such a waiting list for hearings) that, whilst this may indeed galvanise some people into action, there are others who relish their ‘day in court’ and will use it to delay matters even further. Litigious divorce lawyers and their clients will know that the enforced delays and resultant financial and emotional costs can often mean the spouse who did not wish to go to court (who is usually the less financially secure partner) is brought to their knees and may well end up se ttling for less because they cannot afford (financially and emotionally) to fight for more.
If lawyers REALLY prefer to see greater emphasis on a less confrontational approach, how is this message being put out to divorcing people in practice and how powerful is that message? Here’s my tu’ppeny ha’penny worth:
* To start with, we need more surveys like this from Grant Thornton and more press releases to support the new shift in thinking.
* We need more collaborative lawyers across the board, not just at the higher net worth end.
* We need divorce lawyers to recognise that they should be playing a small part in the divorce process – the legal part. And they need to tell their clients that seeking help for the non-legal aspects will save them time AND money.
* We need the government to invest in educating people about the alternatives to litigation. It never ceases to amaze me that most people in the divorce process think family mediation is couples counselling.
* We need to recognise why people 'fight' divorce (largely for emotional reasons) and help them to overcome these feelings so that they are better able to get through the process.
* We need to learn from the Americans and other nationalities about celebrating divorce and talking about the process instead of sweeping it under the carpet. How much easier it would be if we could say 'We got together; it didn't work out; now we are ending it amicably so we can move on.'
And if we took more trouble to learn about ourselves and why we are going into long-term relationships and make sure our values are aligned with our partners before committing, we could make our relationships last for life.
An increasing number of divorce professionals including divorce lawyers believe that going to court and litigation in divorce should be a last resort. It will only be a last resort if all family lawyers and the government properly support people in taking responsibility for their part in the break-up; for educating them about how to dismantle the former partnership in a responsible way and being able to see that creating a new life is not impossible post-divorce. Crucially, separating and divorcing people have to want to utilise that support.
