Briefing

Conscious un-couplings and the amicable divorce

Posted by : Annmarie Carvalho | Date posted : 01/05/2014

The highly-publicised announcement of Gwyneth Paltrow and Chris Martin's separation in March sparked huge media interest regarding the use of the term 'conscious un-coupling'. The use of the term and the sentiments expressed alongside it made it clear that the couple aim to achieve a civilised separation. This raises the question of the extent to which an amicable divorce is a real possibility.

Paltrow and Martin expressed their mutual on-going desire to co-parent and to continue to be a family in the future, despite their separation as a couple. Clients often express such sentiments and one would hope that any lawyers involved would share such aspirations and to do their utmost to assist clients in resolving their disputes in such a way, preventing more harm being done to the family in the process. Indeed, most family lawyers are members of Resolution, an organisation committed to the non-confrontational resolution of family disputes. There is also focus in family law at present on resolving disputes outside of the court setting, and many family solicitors and barristers are now trained mediators, collaborative lawyers and arbitrators. Many provisions of the Children and Families Act 2014 come into force this month which place an onus on diverting couples out of the court process and into other forms of dispute resolution, particularly mediation. In particular, Simon Hughes, the Government's Family Justice Minister, is generating a great deal of publicity about how mediation can help couples resolve disputes as opposed to fighting it out in court. So why is it that a significant number of divorces still result in highly contentious court battles?

 

The 'facts' of divorce

Some aspects of the divorce process itself seem destined to encourage ill-feeling between the parties, such as the requirement in the divorce petition for the Petitioner to 'prove' unreasonable behaviour or adultery as a basis for the divorce (unless they are willing to wait for a period of two years and to live separately for this time). While unreasonable behaviour and adultery are the most commonly relied upon 'facts' in support of divorce, in 99 cases out of 100, they have no impact whatsoever in terms of the eventual division of the assets; they are simply required to be satisfied in order to move the divorce on to the next stage in the process. However, the inclusion of such allegations in the petition often creates antagonism which is unsurprising given their emotional significance, and this can derail any good feeling that remains between the former couple, sometimes setting the tone for the reminder of the case. Resolution is currently campaigning for no-fault divorce to be introduced so hopefully such antagonism can be avoided in future and Sir James Munby, the President of the High Court Family Division has this week called for fault or blame to be removed completely from divorce and for the process to be dealt with outside the court system, with officials approving the documentation rather than judges.

 

Jurisdiction races and risk

Lawyers are effectively professional worriers, trained to draw clients' attention to risk as well as to identify weaknesses in their former partner's case. For the family lawyer, this typically includes assessing the extent to which assets may have been undervalued and liabilities overstated in the client's spouse's financial disclosure, drawing the client's attention to the risks of taking such disclosure at face value. While the lawyer, of course, has a duty to do so, to protect his or her client, it seems inevitable that this process would heighten the climate of mistrust which commonly exists between a former couple.

In 'international' divorces, the difference in approaches of different countries to the division of assets on divorce can make it difficult to divorce consensually.  England and Wales has long been known to be a generous jurisdiction for the financially weaker party to divorce in, with its generous maintenance awards and the starting point of equality of division of assets since cases such as White v White ([2001] 1 A.C. 596) (although the existence of pre or post-matrimonial wealth, or a stellar contribution by one spouse, will affect this).

Given that it is a relatively straightforward exercise for a person to establish that England and Wales has jurisdiction in a divorce, (on the basis of habitual residence or domicile or both) it is often the case that a divorce could proceed potentially in one of two or more different countries. This has led to the development of the 'jurisdiction race' [1]with spouses racing to issue their divorce petition in the court of their preferred jurisdiction, in the knowledge that, if they are 'first in time', there are potentially huge consequences financially.

The 'first in time' rule means that it is often not in the client's interests, financially, to be open with their spouse about their intention to divorce. This encourages secrecy, which is at odds with the Family Pre-Action Protocol[2] which advocates that solicitors notify their counterparts of an intention to commence proceedings.

 

Hope for the future

There is a genuine will to change those aspects of the system which militate against the amicable divorce, with the provisions of the Children and Families Act encouraging dispute resolution including mediation. For example, as of 22 April, it is now compulsory for Applicants in financial and children proceedings to attend a Mediation Information and Assessment meeting, save where exemptions apply. Judges also have the power to adjourn cases at any point in proceedings so that the parties can engage in dispute resolution outside of court. One would hope that such developments mark the next step in a fundamental cultural shift in family law towards greater communication and co-operation, with those in dispute becoming increasingly involved in identifying their own solutions, rather than having them imposed by a court.  

If you require further information on anything covered in this briefing please contact Annmarie Carvalho (annmarie.carvalho@farrer.co.uk) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Family page on our website.

This publication is a general summary of the law.  It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2014


[1] These 'first in time' rules apply to all 'Brussels II' countries, which includes most countries in Europe.  

[2] Clause 1.11