Monday, May 17, 2010


Recently, I posted a discussion on the need for counseling and when it comes to matrimonial issues. There has also been a thread or discussion on a Family Law Professional Group on LinkedIn entitled "Should we make it easier to divorce? Should we make it harder to marry?" I would like to repeat a post recently made by a New Zealand attorney Stephen G Anderson who describes himself as a "Non-adversarial family lawyer":

""Easier", of course, depends on your jurisdiction. In NZ there is a wait of at least 2 years. In England we have options based on either periods of separation or fault. Nobody in their right mind believes that only one person is at fault in anything other than the most rare cases, yet fault - adultery and unreasonable behaviour - are most often cited because they allow a dissolution process to start immediately. Is this good? Probably not always, and particularly not when the other person has no idea it's coming. But managed sensitively and non-adversarially, which is possible even with behaviour being alleged, it allows the couple to start the end process. Making them wait two years can increase tension and could make the eventual discussions about children and money even more adversarial. So I'm in favour of allowing people to start a divorce once they've come to the conclusion their marriage has broken down irretrivably.

Whether the outcome is a good one or a bad one will largely depend on how you go about it. Choose an old-fashioned, traditional family lawyer, who isn't versed in non-adversarial techniques and who doesn't understand and appreciate (or chooses to exploit) the emotional dynamics involved - often referred to admiringly by those who don't understand as a Rottweiler - and you may end up with a bad deal, with damaged kids and huge legal bills. Visit a mediator or collaborative lawyer to begin with - pros who problem-solve rather than seek to attribute blame - and the outcome is likely to be much better for the couple and their kids. And it won't cost so much. Mediation costs about 20% of cost of typical case settled by lawyers and with a much greater chance of court hearings avoided..

So making divorce easier coupled with better information about mediation, counselling and collaboration may help bring an unhappy marriage to an end sooner, with a better outcome and at a lower cost to the family emotions and purse.

Making divorce more difficult, as it was in England up to the 1970's, will cause greater emotional upset to the couple as individuals and to their children, frineds, family and work colleagues, and lead to much larger legal costs, in my view.

Making it harder to marry? Not sure if arranged marriages make it harder to marry, so perhaps their not a good comparison, but I cannot see that there should be any mandatory tests or counselling any more than for any other contract. Provding people with information before they decide to marry is a good idea, it's just finding a way to deliver it that is tricky.

So I'm not really in favour of making it more difficult to marry, and am in favour of "easier" divorces. But many of the problems surrounding marriage breakdown would be reduced if lawyers developed more family/child focussed practices, promoting counselling and therapy alongside mediation and collaboration - and if they refused to engage in adversarial divorce techniques."

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