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Comment on divorce & family law 

USA moves to take the blame out of divorce

2 Comments

The States has to be applauded for moves to take the blame out of divorce. It will never work though. Blame starts in a divorce long before you get to the nuts and bolts of how the divorce process works. A rule change is unlikely to change that.

A law package of bills was signed last week, including one that makes New York one of the last states to allow couple sot dissolve marriages by mutual consent. The no-fault divorce bill allows a couple to dissolve the marriage by mutual consent and without requiring one spouse to accuse the other of adultery, cruelty, imprisonment or abandonment.

In theory, the no fault divorce is a good idea. It removes the need to point the finger in official documents and dream up a reason for wanting to split, something that can often enflame an already volatile situation. This can lead recriminations to escalate along with legal bills and the need to spend time in court.

However, blame happens in every relationship breakdown, well before people find out they need to list a reason in the divorce proceedings. Let’s not confuse blame with fault. For some people it is a cathartic moment to be able to put down in official papers how appallingly badly treated they have been by the other—take battered or emotionally battered wives or husbands for example.

In the UK, our focus should be on making divorce procedures easier and less expensive, but don’t think that “social worker wishy washy” “let’s keep it all nice and no nasty blame” is either realistic or maybe even desirable in all cases.

The skill in those is having a lawyer who helps people see what are the important aspects of the case and helps direct the understandable powerful feelings towards a constructive solution to the problem.

As part of our campaign to improve the divorce process, we want to see less animosity caused by the legal procedure - and unscrupulous or ill-advised lawyers. For a long time I have advocated a no fault divorce and I stand by that. But to think that that will get away from people blaming each other for the breakdown of their marriage is not realistic. A no fault divorce simply helps things along. It won’t change human nature.

Comments

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I agree that merely removing “fault” from the divorce proceedure won’t remove “blame” from most couples who separate, whether they are married or not married.

I think that there should be a change of Matrimonial Causes Act 1973, but not quite in the way envisaged by Family Law Act 1996 with what I recall was to be attendance at group information meetings. Removing fault on divorce to allow a quicker, simpler and cheaper system will help a small amount, but I’m sure that there are those who will argue that simplifying divorce will undermine it’s importance for social, moral or religious reasons.

I do also agree that it is often useful for couples to address their emotions which can involves blame and responsiblity for what is happening, but only if this is done in a constructive manner to help overcome those feelings so that true focus can be placed on longer term children and financial issue. So there is the need to grasp the nettle when it is a hostile situation because merely sweeping the problems under the carpet doesn’t necessarily help.

More lawyers need to realise that we only hold some of the answers and work with other professionals, to provide a holistic approach. This can work within the Collaborative Process but just as effectively in the more “traditional” way, but with a more advanced approach which goes beyong the Resolution Code of Practice.

Although funding will always be an issue (even more so at present), I think it would be cost effective in the long term for the MoJ to work together to link services with such organisations as NHS/Counsellors to help provide this non-legal help, which in turn can reduce conflict, save court time and reduce stress of parties which can affect their work/productivity/health.

So rather than CAB offices in some court, how about a consellor’s clinic? ...

By Colin Mitchell on Saturday August 28, 2010

Andrew, I agree with your comments about Lawyers. It is very natural and understandable for clients to seek to blame theri spouse for the breakdown of the marriage. The clients are in the midst of a very painful grieving process hence want to apportion blame. How often have we been involved in divorces where some Solicitors seem to take on the clients quest as their own and become far too entrenched on behalf of their clients. For me my relationship with my client is about helping them to come through the process, providing legal advice, access to parenting information which is provided by us as in-house workshops, access to good financial advice and finally to help them start the healing process. I do think that an awful lot of responsibility lies with us to help the client begin to heal rather than making it worse by entrenching their views for them….

By Linda Jones on Saturday August 28, 2010

What do you think?


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