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Taking the “F You” out of Divorce

Last month was an exciting one for family lawyers as the long-awaited introduction of no-fault divorce became law. 

There’s no doubt this is a big step forward for a system that was bizarrely antiquated in insisting that people still provided reasons for why they should be given a divorce. It was a pretty ridiculous system.

Because isn’t everyone annoying and a bit of an eejit in some ways?

On that basis, couldn’t we all be divorcing each other all the time?

The hope is that extricating fault from divorce will reduce some of the anger that is vented during the divorce process. It will help reduce the chances of divorces starting off on the wrong foot with mud-slinging and blame. 

Having said that, I don’t think that aiming to remove anger from divorces completely is realistic. Anger is a legitimate emotion, it’s not healthy to squash it or to try to eradicate it completely. The problem was that the legal system and process (as it was) provided too much space for that anger to creep in and take control of the process. 

But there are still plenty of other outlets within the processes for that anger to be expressed. Sorting out a division of assets still involves exchanging budgets including the amount you say you need to live on. Plenty of room for argument there about exactly how much the pet food costs, the costs of the kids’ shoes each month etc. 

And the bloated Forms E containing each person’s financial information contains sections such as one which encourages people to provide instances of ‘bad behaviour’ by the other.

As much as family lawyers try to explain to clients that such sections are to be filled in sparingly and only in a small minority of cases, it’s hard to get clients to listen to that. It’s natural for them to be tempted to put something in, just in case their ex puts something in about them. So the system is still geared to adversarial behaviour. 

I think of the system as a bit like a pinball machine with various routes that the ball can travel down. Removing fault-based divorce has removed one route for the anger. But others remain. 

Given that the rest of the system doesn’t look like it’s changing any time soon, one of the things that all of us who work with separating couples could get a bit better at helping our clients to see their anger as a secondary emotion. Because at the heart of it all is fear. Anger piggybacks on fear and in the case of divorce, on grief and loss. And the current system of lawyer v lawyer, scary courtrooms and judges, the (erroneous) idea that the law will provide a neat solution, encourages and exacerbates that fear (although of course some strides have been made with options like mediation and collaborative law). 

So by making the legal profession more psychologically aware and holistic, can that help to make our clients more self-aware? And more able to look at their fear and how it drives all of their actions? A simple idea but worth thinking about. Gillian Bishop wrote recently about how fear often drives both our clients and the lawyers acting for them. Isn’t it worth us talking about that a little more?