How To Have A Happy Divorce
When my ex-wife and I decided our marriage wasn’t going to make it, I was terrified. I’d had a dissolute twenties and becoming a father had given me a sense of purpose. I was scared that if I became a weekend dad, I’d lose my way again.
We’d been the first of our social circle to get married and now we were the first to get divorced. I had no one to ask for advice. In the end, I phoned a legal firm and spoke to a woman called Ms Sue Nash, who told me, “I will make sure that you and your ex-wife dance together at your daughter’s wedding.”
My ex and I did our level best to stay friendly, although we had our moments, and when the dust had settled, we were living within walking distance and swapping information about the girl’s homework. And then it came to the final stage of the divorce, dividing the money and submitting the petition where we put down for the record whose fault the whole thing was.
Until April, British law – unlike the US – didn’t allow for a “no fault” divorce. One had to sue the other for divorce, citing unreasonable behaviour, adultery or desertion. If both agreed, there was the option of a two-year separation. If only one wanted out, that extended to five years. The separation meant picking up the bill for two properties before financial arrangements had been made, so blaming one of us was the cheapest option.
By dint of tossing a coin, we decided I would sue her – and suddenly she was officially responsible for our split thanks to her unreasonable behaviour. If the girls, just 10 and eight at the time, ever checked, the court would say their mother did it. That felt wrong – we were friends and partners in raising our children, just not romantic partners anymore. It was no one’s fault. So it felt wrong to put down one of us on the legal record as the guilty party. We nearly derailed and things almost got nasty. We weren’t alone – there are around 100,000 divorces every year in England and Wales. It’s estimated that 42 per cent of marriages end in divorce. For something so common, the process has been complicated, drawn-out and painful – not least for family and friends caught in the crossfire.
“The problem is our divorce law system has always been adversarial,” says Ms Samantha Woodham, family law barrister at 4 Paper Buildings and co-founder of The Divorce Surgery, a pioneering “one couple, one lawyer” legal advice service that helps couples wanting a collaborative divorce. “People go to solicitors who won’t see them together and head towards that 1980s War Of The Roses narrative almost by accident. There’s been a growing understanding among lawyers and judges that relationship change involves issues of relationships with some financial and legal elements. We view it as legal process but it’s an emotional process. The law is there to ensure fairness, but isn’t equipped to provide the support people need through relationship change.”
“The new law removes the ‘blame game’ by allowing one spouse, or the couple jointly, to make a statement of irretrievable breakdown”
But the law changed this month. The new law removes the “blame game” by allowing one spouse, or the couple jointly, to make a statement of irretrievable breakdown. It will also stop one partner contesting a divorce if the other wants out – which in some cases has allowed domestic abusers to either prevent their victims leaving or extended their suffering through a nasty legal battle.
The old law was challenged in 2015 when Ms Tini Owens – married to Mr Hugh Owens since 1978 with two grown-up kids – listed a kindly selection of examples of unreasonableness to avoid offending Mr Owens. He opposed, Ms Owens lost and, despite the judges expressing “uneasy feelings” about the result, they were denied a divorce. It’s Ms Owens’ unhappiness that prompted the change in the law.
No-fault divorce would have worked beautifully for Mr Alan Davidson and Ms Helena Skillern from Brighton, whose 12-year marriage came to a slow, gentle end five years ago. “We were the best mates in the world, but we weren’t lovers anymore,” Davidson explains. “And that was starting to make things a little tense. We agreed that I’d move out and rent a flat nearby, Helena would live in the family home with the two kids – both teenagers – and we’d swap in and out when I was visiting.”
This process, known as bird’s nesting, may be emotionally helpful, but it does provoke legal questions. Has Davidson abandoned the family? Could Skillern take control of the property, sell it and take all the money for herself? Davidson and Skillern didn’t consult lawyers as they “didn’t want things to get nasty”. But where did that leave them legally?
“It will save you so much money and avoid so much conflict if you resolve emotional issues outside the courts”
Woodham and her Divorce Surgery co-founder Mr Harry Gates’ book The Divorce Surgery, the publication of which is neatly timed to coincide with the change in the law, aims to give as much information as possible to the likes of Davidson and Skillern in a bid to help them create a Good Divorce. They map out the emotional, financial and most importantly the legal aspects of what lies ahead – laced with spine-chilling examples of real-world divorces where everything has gone so far south it’s hard to finish the paragraph.
It’s exactly the kind of book my friend Nick needed. He works in the back office of an investment bank and made the mistake of telling his boss, who had been through the family courts a couple of years ago, that he was splitting up with his wife. His boss introduced him to his own lawyer who was well-known, his boss assured him, for looking after every penny. By which, Nick later told me, he must have meant “for himself”.
“The guy practically went in punching,” Nick says. “His letters were really aggressive. He managed to make what started off as quite a gentle parting into something really nasty. About halfway through, I was talking to my boss about it all and it turned out he wasn’t speaking to his ex, he hardly saw his kids, but he’d managed to keep almost half the house money. I thought, ‘why did I take advice from this man?’ He’s ruined his life.”
“The problem is that many couples like the idea of working together, but there’s this fear in the back of their minds that they’re going to be somehow manipulated or done over or lose out because there’s this great strategic game of chess that they should be playing,” Gates says. “In fact, it’s important to say, ‘No, listen, you’re not missing out on anything – it’s the vast minority of cases that need to go to court, the majority should be working together and, actually, this is how you do it.’ Crucially, lawyers aren’t the first people you should be calling.”
Woodham and Gates suggest consulting specialists in the emotional impact of divorce first – listing separation counsellors, therapists, divorce coaches, co-parenting advisers and financial advisers as options. “It will save you so much money and avoid so much conflict if you resolve emotional issues outside the courts, and have an honest picture of your joint finances rather than having judges get involved,” says Woodham.
For Davidson and Skillern, taking time and not reaching for the lawyer’s phone number worked out in a surprising way. Over lockdown, Skillern was ill. With both kids away at uni, Davidson was over helping her out almost every day. In the end, he started sleeping on the couch. Eventually one night, after they’d been drinking, laughing and playing music all evening, he returned to the marital bed. Now they’re back together. “I don’t think I can really explain it,” he says. “It just seemed to make sense. I think we mellowed – the bits about each other that irritated us… When you have time away to think about it, you find you’re not so wedded to your attitudes, and you’re not so bothered by theirs. It may only work for the two of us, but almost getting divorced was the most romantic thing that happened to us.”
The good divorce guide
01. Set your goals
Make sure divorce is what you want rather than separation or some other way of remedying your problems. Try to remove blame and guilt. Accept that both of you had a part to play in this situation and that you’ll end up happier – and richer, with the Money Advice Service estimating that an average divorce going to trial costs £30,000 plus VAT – if you work together.
02. Work out what you agree on
Even if it’s only “we don’t want to spend loads of money on lawyers”. Work out how you plan to do this together. Around a third of couples who are subject to an order go back to court to try and change it so tension causes tension.
Decide what professional support you or your kids, if you have them, need. Often these are counsellors and financial advisors rather than barristers.
04. Make short-term plans
Is it feasible for one of you to move out? Can you afford the extra housing costs? Where might you want to live? What will the kids do over holidays?
05. Do it your way
Try not to let friends and family’s opinions knock you off course. Remember it’s you going through this.
06. If you have children, talk to them
Work out a co-parenting agreement that you can agree on. The courts really don’t like getting involved in parenting arrangements. Judges have started to penalise parents bringing frivolous arguments – such as which motorway junction to exchange the kids at. Don’t be rude about your ex to your kids – remember, they know they’re 50/50 you and your ex. They hate you hating half of them.
07. Tell the truth
Be honest about your financial picture and reach a financial arrangement. Lying about your money is a no-no. In that it’s illegal.
08. Manage friends and family
Tell friends and family what you need. Tell them what matters. Tell them you don’t mind them being friends with both of you.
09. Make your reshaped family a lifelong reality
I mean, good luck with that. It’s working out my end, but I couldn’t tell you exactly how. We like each other, I guess, and want the best for our kids. In the end, we were once the people we loved most in the world. That has to mean something. Cut each other some slack.
Illustration by Mr Frank Moth