Samantha Woodham, family law barrister and co-founder of The Divorce Surgery, explains why sharing a divorce lawyer might actually be the most rational and kindest way for former couples to separate their lives and finances.
No-fault divorce came into force last April. It removes blame from the start of the divorce process. So, when applying for a divorce couples will no longer be required to provide any reasons as to why they should be entitled to a divorce. They can also apply for divorce jointly, which starts the process together and on an even footing.
This is absolutely a much better way to start the legal divorce process. But it’s important not to over-state the implications. The divorce application is just the start. The issues which can cause the most angst and conflict for separating couples are the division of their finances and/or the arrangements for the care of their children. No-fault divorce will not affect the way those legal processes are managed.
But what it might do, and we certainly hope it will do, is move the conversation further about what the ‘normal’ process should be for separating couples to resolve the legal implications of a divorce. At the moment the default for separating couples is to get separate legal advice from different lawyers. But is that the best place to start?
A non-adversarial approach
Increasingly, family judges are urging couples instead to work together through divorce, focusing on the issues upon which they are agreed and securing joint advice on the issues upon which they cannot agreeAt The Divorce Surgery we were the first regulated provider to enable couples to share one lawyer on divorce. It’s a growing trend, but many separating couples still have no idea it’s even an option. What we see in the couples who come to us is that they are sick of the blame narrative and don’t want to view divorce as a battle. They just want to get to an outcome which is fair for them both and their family as a whole with as little acrimony as possible, and without taking years to do so or breaking the bank.
Divorce is a legal process and it’s important for couples to get regulated legal advice: this will probably be the greatest surrender or gain of assets they make in their lifetime, but the process of getting legal advice must not be allowed to make their relationship worse. For many couples, the idea of sharing an impartial lawyer is very appealing, as it means the lawyer isn’t taking sides and can jump straight to looking at the case as a family judge would, asking the key question: what is the legally fair outcome for this family as a whole?
For many couples, the idea of sharing an impartial lawyer is very appealing, as it means the lawyer isn’t taking sides and can jump straight to looking at the case as a family judge would, asking the key question: what is the legally fair outcome for this family as a whole?
Changing the narrative around divorce
It’s human instinct to focus on a blame style narrative – why did this happen, who’s fault is it? But as we explain in our book that’s a really bad way to start a legal process. It also feeds into the narrative that divorce is a failure, and that there needs to be a post-mortem for the reasons for divorce because divorce is intrinsically a bad thing.
But we really want to challenge that narrative. Research has shown that this causes entrenched conflict which is damaging to couples and their children. Some relationships have a shelf-life, and that’s ok. It doesn’t mean you have bad judgement or the marriage as a whole was a mistake. Our personalities change as we age, and the person who was right for you in your twenties may not be right for you in your forties.
Divorce is not a bad thing if it enables a couple to move on from a relationship which is no longer meeting their needs, and find happiness apart
Divorce is not a bad thing if it enables a couple to move on from a relationship which is no longer meeting their needs, and find happiness apart. The issue for couples, and for any children they have, is if they are in a relationship which is entrenched in conflict. That can happen in a bad divorce, but also in an unhappy marriage.
So, the default should be navigating divorce together, not drawing battle lines.
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