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Divorce is a narrative that features in many media storied and cultural references, from sitcoms to movies and other works of fiction. However popular the story of divorce might be, the reality is often far different for those people experiencing it and as family lawyers we often find ourselves dispelling common held myths that many people believe to be true. Here, I take a look at some of the key features of divorce and how the truth differs from what is often portrayed.
The media and contemporary culture in general portray divorce as an almost instantaneous process, something that just “happens” when you decide you want to no longer be with your spouse. When the tabloids discuss celebrities who are “divorced”, in actual fact, usually they have only just started the process by filing for divorce. It may take several years before they are divorced because they typically have significant assets in several jurisdictions, not to mention complex child arrangements. A typical divorce will take at least 6 – 9 months and it can take longer, if the divorcing couple have a high conflict relationship and matters cannot be agreed outside of court.
Films incorporate courtroom scenes because they are great for drama; however, in a lot of our cases, neither party ever has to step foot in a courtroom.
If you are able to enter into alternative dispute resolution with your spouse (for example, mediation, collaborative law or arbitration) or agree matters directly between you, the likelihood is that you will never have to go to court. While divorce and finances are actually separate court cases that proceed through court on different timetables, both are unlikely to require you to attend court unless you either cannot agree, or the financial settlement you have reached is considered to be unfair to one party (in which case the court may ask written questions about the settlement or require you to attend court to explain / justify the rationale of the deal).
This is a myth that Hollywood seems to propagate – that committing adultery means you will do worse in the outcome of your finances case. Our courts have been clear that “financial remedy court is no longer a court of morals” and that bad behaviour will not be taken into account in determining the outcome of the finances case unless it would be “inequitable to disregard it [and also] where its impact is financially measurable” (OG v AG  EWFC 52). As such, cheating is not something a court would consider relevant to the case. Even other types of conduct, which would be appropriate to take into consideration because of its nature has to be measurable (because the court’s only way of remedying the wrong is really to compensate the other party financially).
The law in England and Wales is that England and Wales is that there is only one ground for divorce, which is that has to have been an ‘irretrievable breakdown’ of the marriage under Section 1 of the Matrimonial Causes Act 1973. There is more information in our blog on grounds for divorce here.
Again, the media messaging around divorce is very antagonistic and it doesn’t help that the court system in England and Wales is adversarial (i.e. one party against the other) and cases are described as x versus (v.) y. There is no need for divorce to be a battle and it is in both spouses’ interest to deal with matters amicably, as this will likely result in a cheaper and faster divorce. Even if you feel that lines of communication have broken down intractably with your partner, you can turn to alternative dispute resolution methods to help you, such as shuttle mediation (where you sit in a separate room to your spouse and a mediator goes between your rooms making different settlement proposals). Usually matters can be resolved in one or two sessions, which is far cheaper than going to court. You can also instruct a private judge if your case is more complex or you want a binding decision so that neither of you can go back on your agreement. This is actually much cheaper and quicker than using the normal court channels (even though you have to pay a higher fee at the outset of the case).
Another common representation of divorce is where the children are terribly unhappy and not involved or consulted as part of the separation process. We’ve all seen movies with children listening at the top of the landing to their parents arguing, or not wanting to go to one parent’s house, or not liking the ‘new step mother or father’…. the list goes on. There’s no doubt that changes to the family unit can be distressing but it is absolutely possible – and of course preferable -to minimise the impact a divorce may have on the children involved. Keeping communication frequent and age-appropriate is important, as is allowing the children to spend quality time with both parents and encouraging them to express the emotions they are experiencing. Making use of other family members for support, whether cousins, grandparents or uncles and aunts, is also a great way of providing support. Dispute resolution processes, including mediation, not only help to keep conflict during divorce or separation to a minimum but also allow children – when appropriate to be a part of the process – ensuring that their voices and wishes are heard.
Hattie Gibson is a specialist family solicitor in our Brighton team.
If you would like any further information on how the court treats business assets on divorce, then please do not hesitate to contact a member of the team for a confidential discussion about your personal circumstances.
We are committed to advising you of all the options available to you, and (unlike other family lawyers) will support you with solutions that avoid the traditional court process.Get in touch