Separation and divorce are said to be amongst the most stressful life experiences one can go through. Alongside the emotional impact, there are a lot of significant issues that need to be considered, such as what is going to happen to the family home, and where the children are going to live.
In these circumstances, spouses can often fall into ‘fight’ mode. Perhaps encouraged by friends and family to be strong, or perhaps simply concerned about ensuring their wishes are heard and interests protected, some spouses can adopt an aggressive approach, with or without a solicitor.
This approach may be understandable, but it is not always called for, and can do the family more harm than good.
There are circumstances where a spouse, or solicitor, needs to be ‘tough’ – such as where the other spouse has hidden assets, refuses to negotiate fairly, making outrageous demands, or is putting the children at risk of harm, etc.
Not all cases will warrant a robust stance. However, unfounded allegations in correspondence, and threats of suspended child contact or the risk of mammoth legal costs through court proceedings if no quick settlement is agreed, can easily result in a ‘tit for tat’ approach. This will often result in increasing legal fees and reduce the chances of an amicable compromise being reached.
An unreasonable approach may backfire at court – if no agreement can be reached, and the matter goes in front of a Judge, they may not condone aggressive litigation, and this could be reflected in orders for the payment of the other’s legal costs or in the childcare arrangements.
Spouses and parents can get so caught up in a ‘fight’ that they forget that there will be a life once the case has finished. For example, if there are children, it will be necessary to co-parent for several more years, and insults and allegations may be hard to forget when arranging birthday plans and how Christmas Day will be planned.
Perspective is needed. Legal costs have to be paid from the ‘marital pot’, and so the more money that is spent sending long, aggressive letters back and forth, the less money there will be for moving on and securing new housing afterwards. Focus on the children – do not refuse requests for foreign holidays etc., simply to spite the other and be difficult, if it is clear the children would enjoy a week at Disneyland with the other parent.
Spouses and parents could discuss issues at mediation. The mediator should act as a ‘referee’ and help to foster a compromise – if the thought of discussing money face-to-face is too daunting, the mediator may be able to ‘shuttle’ between the two separately. There is still a role for solicitors in mediation – providing advice before mediation is attempted to give the spouse/parent an idea of what they may be entitled to, and then afterwards on any compromise that has been reached, on the workability and reasonableness, but this approach can sometimes ‘take the heat’ out of a separation.
At Fraser Dawbarns, the Family department tries to help spouses and parents take a reasonable approach, whether it is making realistic financial proposals with solid grounding, based on housing needs and the available assets, or focusing minds on the best interests of the children. A firm approach and defence of interests can be assured, but it is worth remembering that sometimes, ‘you catch more flies with honey than with vinegar’.
This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP are always happy to provide such advice.
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