THE GOOD DIVORCE: COMMON SENSE, CONFLICT AND DISPUTE RESOLUTION 

Published on 30 April, 2024 | Sky Langwieser

THE GOOD DIVORCE: COMMON SENSE, CONFLICT AND DISPUTE RESOLUTION

Few individuals facing up to the end of their marriage would consider there to be any such thing as a ‘good divorce’.

That might seem particularly true for individuals who attribute the failure of their relationships to their partner’s misconduct.

Unreasonable behaviour and adultery were the cause of just over 51 per cent of the 113,505 divorces in 2021 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2022).

Up until two years ago, some spouses felt compelled to point the finger because it was the quickest way to end a marriage under the prevailing divorce legislation, the Matrimonial Causes Act 1973.

Even though they may have parted on good terms, it was felt that the process had at least the potential to generate unnecessary conflict which could manifest itself in subsequent disputes about the division of marital assets or child arrangements.

Pressure for reform led to the passing of the Divorce, Dissolution and Separation Act 2020 (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted), the most notable element of which was the removal of the need to apportion blame.

Another departure ushered in by the new legislation was the ability of couples to petition for divorce together.

It remained to be seen, however, whether ‘no-fault’ divorce would really change the culture of a marriage break-up.

Figures produced by the Ministry of Justice in recent weeks suggest that such a shift could in fact be underway (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2023/family-court-statistics-quarterly-october-to-december-2023#main-points).

In the first three months after the new law came into force, 79 per cent of divorce petitions were by sole individuals. Fast-forward to the quarter ending in December last year and the proportion of joint petitions had increased by four per cent.

The idea of spouses both coming to the realisation that their respective futures lie apart from one another is not necessarily too far from the truth, if an article in The Times’ is anything to go by.

It featured a business coach, Lisa Quinn, describing how she and her husband had decided to divorce amicably having reached just such a conclusion (https://www.thetimes.co.uk/article/d07408cf-baa7-4df8-ae01-056e9f2d439d?shareToken=7ddee9bf30e11861ed44fb83b830fb73).

This real sense of divorce not having to involve conflict is central to a new addition to the protocols – the Family Procedure Rules – which govern how family courts in England and Wales operate (https://www.justice.gov.uk/courts/procedure-rules/family).

Separating spouses are already required to attend what is known as a Mediation Information and Assessment Meeting (or MIAM, for short) before they can bring disagreements about their co-parenting relationships or the division of marital assets to court.

Some commentators have remarked that couples eager to have their day in court have in the past paid lip service to the MIAM process and not given full consideration to the benefits of mediation.

Couples, however, are now required to demonstrate that they are taking Non-Court Dispute Resolution (NCDR) seriously at every stage of their divorce.

Exemptions to mediation, including the urgency of finding a solution or domestic abuse, are also being reduced.

I should point out that there are some instances in which NCDR is simply not suitable.

Even so, the new Family Procedure Rule means that more emphasis is being placed on at least trying to resolve whatever differences might exist through mediation rather than in court than ever before.

The failure to be earnest in such pursuits will not just be reflected in the time taken to conclude divorces – although, on average, that took 69 weeks in the last three months of 2023, up two weeks on the same period the year before.

Those felt guilty of dragging out the divorce by not committing to NCDR could be ordered to pay a greater share of the costs involved.

If anyone needs a reminder of what all this means in practice, they might consider a ruling handed down last month by the family judge Mrs Justice Knowles (https://www.bailii.org/ew/cases/EWHC/Fam/2024/538.html).

At the heart of her judgement was an expectation on the part of the court that couples engage in a “serious effort” to find a solution to their disputes “before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate”.

Those that did so, she maintained, would appreciate “the real advantages that will flow from resolving their dispute away from the courtroom”.

Non-Court Dispute Resolution (NCDR) is a description applied to the full gamut of methods, ranging from mediation to arbitration and collaborative law, all of which are offered by Hall Brown.

A growing proportion of the individuals taking up that provision with us are, like Lisa Quinn, keen not to allow the administration of divorce to jeopardise the friendships which can survive the end of a marriage.

Whilst not amounting to the plans for compulsory mediation which were jettisoned by the Government at the start of this year (https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/mandatory-mediation-abandoned-for-separating-couples), I believe that the new rules will convince more couples to at least think hard about avoiding the kind of rancour which can affect the lives of themselves and their children long after they have gone their separate ways.

ENDS