Our inadequate system for helping families to separate with dignity and at proportionate cost has come into ever-clearer focus with the publication on 12 November 2020 of an influential report by the Family Solutions Group, under the stewardship of Mr Justice Cobb. 

The report contained the staggering statistic that family breakdown is now estimated to cost the taxpayer £51 billion annually. This is up from £37 billion a decade ago, and is equivalent to total government spending on defence and justice combined, or, as the Internet reliably informs, enough to provide every single citizen of the UK with 160 large pots of Marmite. No wonder the current system for resolving family disputes is so firmly under the microscope.

Think of your long-term relationships

But as the report makes clear, it is not just a question of the financial cost to individuals and society. The damage done to long-term family relationships, and particularly children, by getting separation wrong is acute and increasingly well-understood. At least part of the blame for this lies in our outdated view of separation as primarily a legal issue (and worse, a fight), when in fact that is only one of various considerations.

For many, the first question is how are you going to co-parent? The answer is very rarely to be found in the neatly laid out paragraphs of a court order. Whether you have children or not, there is so much to be lost in a poorly handled separation. A more holistic approach is required.

Remove the ‘winner’ vs. ‘loser’ mindset

Indeed, the whole notion of ‘winners’ and ‘losers’ upon divorce has begun to seem highly old-fashioned, if not verging on the irresponsible. Language matters. It is of course a product of our adversarial court system, in which judges reward the best arguments. In such a system, even the most conciliatory of lawyers faces the problem described in the report: ‘it is important to distinguish between a process in which parents are working together to find a resolution and those in which the parents are set against each other. Solicitors may have a good working relationship and manage a civilised process between them for resolving their clients’ issues, but the process itself might be one where the parents are represented against each other.’

Work together

Any court process involves working apart. But even if you wanted to work apart, the Family Court probably doesn’t want to see you. The report describes the Family Justice System as ‘in crisis’, unable to keep up with the current level of (misplaced) demand. This in turn disables the court from dealing promptly with those cases where its help is genuinely needed: where there may be safety issues, for example. All legal professionals have been encouraged in the strongest possible terms to stay away from the Family Court unless unavoidable, particularly during the pandemic. Judges have an ongoing duty to consider alternatives to litigation at every stage of the proceedings. There is a robust debate at the moment about whether judges should be allowed to penalise families who refuse to engage.

Stay away from court

So the message to separating couples is clear: stay away from court. Work constructively together because it’s in your own interests and those of your children. If you cannot or will not, the outcomes are likely to be worse. Choose your process carefully, with a view to achieving your ultimate goals. Do you simply want as much money as you can achieve, or are there broader considerations at play? Do you care what your relationship with your former partner looks like in 10 years, and if so what do you want? The report encourages us all to look beyond the particular issue in question and consider how the process will affect the parent relationship. Will it rebuild parent communication and their ability to resolve issues in the future, or will it diminish them? As the family professionals close their files, in what state do they leave the parent relationship? Will they be able to manage eye contact at handovers?

So be careful and do your research. Don’t jump into anything. There are lots of non-court options out there if you know where to look, as we explore in our earlier blog ‘Myth-busting alternative dispute resolution’. If you agree that you want to work together, then do consider our pioneering and multi-award winning One Couple One Lawyer service here at The Divorce Surgery, where we advise you together as to how a court would regard your case, whether as to your finances or your children.  You can find us on p.74 of the report!

If you have more questions about this topic or any other legal issues arising on divorce or separation, please do get in touch as we are always happy to help. You can call us on 0203 488 4475 or email contact@thedivorcesurgery.co.uk.

Author Name: Editor

Published content by The Divorce Surgery Editorial Team.

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