28 November 2016

Is there such a thing as a 'good divorce'?

Today marks the first day of ‘Good Divorce Week’ a campaign by Resolution (the national organisation of family lawyers that aims at providing a constructive resolution to family disputes) to promote ‘no fault divorce’ and improve rights for cohabiting couples. On Wednesday 30th November, over 150 members of Resolution will travel to Westminster to lobby for these two important changes to family law. The campaign also coincides with the launch of their new Code of Practice.

Melanie den Brinker, Partner and collaborative lawyer at Buss Murton Law and member of Resolution discusses whether there can really be such a thing as a ‘good divorce’.

At some stage most people will be affected, even if only indirectly, by divorce. If not their own divorce, it might be their parents’, a child’s or even a friend’s. The effects of divorce can be far reaching and damaging and so anything which can help to reduce that damage has to be a good thing.

Traditionally, a couple going through a divorce will each engage a lawyer to act on their behalf, effectively to fight for them. Whilst most family lawyers will do their best to negotiate an agreement, sadly this is sometimes not possible and the court then becomes involved. This can lead to a win/lose situation, leaving the “loser” feeling resentful and bitter and the “winner” complacent and powerful. Any goodwill which had survived the breakdown of the marriage may well have been destroyed, leaving in tatters any possibility of parents working together for the sake of their children.

Fortunately, collaborative divorce provides a completely different approach and so is often called “the good divorce”. It is based on the assumption that the best and most successful arrangements are those which have been agreed directly by those whose lives and whose children’s lives will be most affected by them. Each party is assisted by their own collaboratively trained lawyer and all discussions take place at round table meetings. Everyone commits to reaching an agreement without going to court and the parties agree to be frank and civil with each other and to provide full and open disclosure of all relevant information. Often these meetings give a couple the opportunity to discuss matters constructively for the first time in months, if not years. Hearing directly what the other has to say and having the chance to respond directly, rather than having their views filtered through solicitors’ letters, reduces the risk of misunderstanding and of positions hardening and becoming entrenched. Collaboration gives a couple control over their future affairs in a way which is simply not possible when a court is involved.

Everything and anything which is important to the parties can be discussed, from arrangements for children, housing and future finances to who should keep the dog. As the process is controlled by the couple rather than by the court, there is no right or wrong way to do things and no imposed timetable. This allows priorities to be identified and workable solutions agreed. Above all, collaboration allows the parties to agree arrangements which they both feel are fair, which make the most of their resources and which will give themselves and their children the best possible base from which to move forward.

So, although going through a divorce will always be a challenging and emotional time, the good news is that collaboration really does allow a couple to achieve something very close to a “good” divorce and certainly a divorce which is very much better than most people ever believed possible.

Melanie den Brinker

Melanie den Brinker
Partner