Mediation and No-Fault Divorce – A Step in The Right Direction

The Government announced today that it will enact a law enabling couples to divorce without proving that either was to blame. This development has been long-awaited by campaigners such as Resolution who believe the changes will bring divorce laws in line with the 21st century.

Divorces can be highly emotional events that damage the children involved, impact on couples financially and ruin self-esteem. The anger, frustration and disappointment that can result is compounded by related issues such as splitting assets, child maintenance, custody and visitation rights, not to mention the grief following the loss of a relationship with a partner and children. Not all divorces are acrimonious but the way that divorce law and the Courts in the UK are structured, requires partners to blame each other and to compete with each other so that a Judge will rule in their favour. 

The Current Law

Couples have to wait a year and a day after they are married to divorce and in doing so, they must present to the Court that one of them is at fault. There are five grounds of fault:

  • Adultery
  • Behaviour making living together unreasonable
  • Desertion
  • Separation of more than 2 years where the partners mutually agree to divorce
  • Separation of more than 5 years where they do not.

This means that a partner petitioning for a divorce must prove the other is to blame for the breakdown in the marriage or that they have been separated for a long period of time even when they agree they want a divorce.

The Blame Game

Blame exacerbates conflict because it puts one person in a position of judgement over the other. It entrenches positions and avoids a resolution based on mutual interests which could consist of a desire to maintain the welfare of the children, a fair division of assets and custody. A partner may already feel humiliated, hurt and betrayed because of the behaviour of the other (for whatever reason) however, current divorce law further entrenches those positions and divisions and makes it a fundamental part of the divorce process. Even when partners wish to divorce, they may feel entrapped and unable to move on, especially financially. This is made worse by high legal fees, a lack of legal aid in most cases, the win/lose judgement that results from the Courts and the stresses of learning to adapt to a new way of life as a single person. It’s easy to see why divorce can be highly emotional and damaging for all involved.

No Fault Divorce

The new reforms will remove the need to prove one of the five categories of blame. The Law Society believes that his will reduce conflict and allow divorcing couples to concentrate instead on issues such as custody and asset division. Costs should also be reduced in consequence.

Conflict Reduction

Anyone who has been through a divorce knows how painful it is. It damages self-esteem which can lead to more conflict.  Feelings of anger, disappointment, betrayal and loss can create negative perceptions of the other person. I remember a friend of mine going through a divorce, recounting every aspect of the adultery committed by the other, the evidence she had collected and tragically,  the effect it was having on the children. The public nature of the court proceedings added to the humiliation and the lack of certainty about the outcome, together with my friend’s lack of financial security, indicated that nobody’s needs were being fulfilled, let alone their interests! This divorce quickly turned into a public spectacle of revenge. It made me remember, as a child, how scary it was to imagine a world without my mother and father as one stable unit.

How Mediation Can Help

Whilst changes in divorce law will remove the legal obligation to prove fault, it will not stop divorcing partners from blaming each other or from experiencing other negative emotional reactions. There may still be a desire to punish the other through restricting custody or refusing to cooperate in terms of asset division which is why mediation is now more crucial than ever in helping couples to resolve those differences without being influenced by heavy emotions. Mediation helps couples to communicate clearly and effectively, to see creatively how they can settle without incurring a high legal bill and to realise that the well-being of their dependants is more important than the desire for vindication. Divorcing couples should seriously consider mediation as a cheaper, quicker and healthier way to resolve conflict, especially since the legal obligation to prove fault will shortly be removed.

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