Divorce – the other side of the law court – the couple and family

The recent publicity generated by the Supreme Court judgment in the Owens v Owens case; where Mrs Owens was not permitted the divorce from her husband that she had been hoping for (the couple had not been living together for six years and Mrs Owens had developed a new relationship), following a gruelling contest trying to establish fault and unreasonable behaviour; moved the discussion about what to do when married couples can’t agree on legal separation into the wider spectrum of society. In the resulting media coverage, the idea of the introduction of ‘No Fault’ divorce in England became a major point of societal debate, beyond even the legal and technical arguments, as a point of principle.

My own organisation was asked by several members of the media about how common such a disagreement between two partners is. We appeared on the BBC news channel on the subject. The truth is there isn’t an answer to that. We see couples every day coming through our doors, as a counselling and psychotherapy organisation, a high number of whom are unhappy or estranged, trying to work out their own particular disagreements in order to either reconcile things or work on separating, in most cases trying to limit the emotional damage.

The Owens case has become a clarion call from many quarters for ‘no fault’ divorce because many of the more distressing personal details at the centre of the argument between the two parties were aired because by law, in order to get a decree absolute, Mrs Owens needed to prove a pattern of behaviour on the part of Mr Owens that could be deemed as unreasonable. This proof was aimed at rendering him the party ‘at fault’ in order to fulfil the requirement of having one half of the couple recorded as behaving in such a manner for divorce to then be permissible. This process invariably requires the use of personal and potentially disputed incidents and relationship patterns that means ‘airing dirty laundry’ and creating an adversarial set piece.

It seems with the Supreme Court’s ruling in favour of the current status quo, that the issue moves away from the courts and legal system and into the hands of lobbyists and politicians to decide if this is the right way for the system to work. But why might campaigners for ‘no fault’ divorce be making all this effort?

One of the criticisms of the concept of a ‘quickie’ divorce, is that it makes things too easy for the couple. It is certainly true that there are studies that show that couples that marry and commit tend to stay together for longer and in greater numbers than those who opt for cohabiting. However the discussion of this and the wider impact of cases like this, while touching on the distress both parties can face in the adversarial court atmosphere, may not be emphasising another vitally important reason to defuse couple conflict, namely to keep both parties out of the courts. This can be achieved by allowing them to separate in a ‘better’ way. By doing this, critically we can tend the often neglected needs of the ‘silent partners’ in any separation where there are more than just a couple involved, namely  children or dependents, . It sounds ridiculously obvious but there is strong evidence that legal battles create damaging repercussions for the next generation and that with the focus on the adults, this problem is ‘hiding in plain sight’.

The impact of couple conflict on children

It has been proved that couple conflict, often an overwhelming feature of difficult divorces, has an extremely damaging effect of children, in terms of mental health, educational attainment and development. Tavistock Relationships’ wrote a paper in 2016 summarising all the historical research by way of evidence.

While periodic conflict between couples is natural, and something which most children will be exposed to at some point in their lives without necessarily experiencing adverse effects, research indicates that couple conflict which is frequent, intense and poorly resolved is very harmful.

This concept was brought into even sharper focus, with the frame of reference of high conflict couples, who spend a long time in the court systems. In 2016, Cafcass (Children and Family Court Advisory and Support Service) worked in tandem with the DWP and Tavistock Relationships to put on a special counselling service for ‘entrenched’ parents going through the legal process and deemed to be in a high conflict situation and unable to agree on parenting or their relationships. Parents were offered between 6–12 sessions of joint therapy or, where they were unwilling to work together in joint therapy, or for other reasons this was not possible, they were offered up to six individual sessions of therapy.

The results showed that, as a result of undertaking therapy in this project, many parents demonstrate a significant improvement in their parenting alliance, notably more so amongst parents who attended the session together.

Although the programme was a finite exercise, the legal community were notably taken aback by the rate of engagement from previously very antagonistic parents to the sessions. District Court judge Harper remarked of the work: ‘The project is an invaluable and scarce resource in comparison to the court process which can be a blunt instrument.’

With programmes like this providing valuable evidence, it may be seen as surprising that the idea of extra support for parents separating isn’t higher on the political agenda. Cost of course is one consideration, though one might think of the money saved in litigation. But another is challenge is focus. Relationships are still seen as very much private affairs and the way the state intervenes is still a question that provokes many different opinions. So while we may hear about the rights and wrongs of the Owens’s case from various viewpoints relating the individuals involved, to think about a relationship and the impact on the inner workings of the family, is often a step many of us find hard to make.

However, there are signs that the message is getting through. Recently, Cafcass launched the High Conflict Practice Pathway, a practice framework being developed to help their practitioners systematically assess cases which feature adult behaviours associated with high conflict. The description of the pathway adds:

‘This includes but is not limited to parental alienation, which is best seen as a broad spectrum of behaviours with varying impact. As with all of our work, the framework keeps the child’s needs, wishes and feelings central to the recommendations we make to the court on who they should live with or spend time with.’

The framework specifically acknowledged the well-known highly damaging effects of inter-parental conflict it is this kind of thinking, namely that it is never too late to help parents who may not relate well to each other, but have the best interest of their children at heart. In fact, strengthening the relationship between separated parents is of particular importance given the growing body of evidence which suggests that the quality of co-parenting has both direct and indirect effects on child outcomes, via associations with parents’ psychological wellbeing and parenting capacity.

It is this way of looking at things that might one day enable the headlines to focus on the complete family system and a more harmonious societal approach to thinking about separating parents and the families behind the headlines.

Written by Ellie MacKenzie

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