Separation and divorce is never easy. Emotions generally run high, blame and regret are a heady mix and the practical problems seem immense and at times insuperable.

It is easy for the 'innocent' party to want to seek retribution. A good solicitor will invariably advise against such a course. As hard as it is for some to accept, the reality is that if one party is determined on a divorce, however much the other party does not want it, the relationship is almost certainly doomed.

Having reached that stage, in dealing with the practical consequences of the breakdown of the marriage, the law is framed to achieve fairness between the parties and not to produce 'winners' or 'losers'. The modern approach is to regard divorce as a problem that affects both parties.

Grounds for divorce

There is considerable pressure for the law to be changed so that a divorce can be granted without specific grounds but rather on proof that the marriage has broken down. However, that is not yet the case. Currently, a divorce can only be granted if one of five 'grounds' is set out in the divorce petition and then proved.

Approach to divorce proceedings

The approach to divorce proceedings has changed enormously in the last 20 years or so. It is now recognised that divorce is an emotionally bruising process and can have lasting effects on the parties involved, particularly children. Therefore, much greater emphasis is now placed on completing the process with minimal confrontation and rather trying to agree fair solutions.

Of course, for such an approach to succeed, both parties must be prepared to cooperate and adopt realistic attitudes. This is not to say that either party should refrain from arguing fair and relevant points. However, retribution or 'punishment' virtually never plays a part in dealing with problems of that sort.

A good solicitor will always advise clients to adopt a reasonable attitude.

'Resolution' approach to divorce and separation

Many solicitors who advise that a constructive, cooperative and non-confrontational approach to divorce proceedings should be adopted, belong to an organisation called 'Resolution'. At Michelmores, we strongly advocate the Resolution approach to divorce and separation.

Our lawyers form a view as early as possible about the various problems arising in each case: we then advise clients on the best way to approach the situation. We will frame an approach and work hard to achieve a solution with minimum confrontation, delay, distress and cost. Court 'battles' are avoided where possible.

Of course, there are cases where it is necessary to go to court, particularly where the other party is unwilling or unable to adopt a realistic approach to problems. In addition, there are cases where the outcome is finely balanced and a decision is needed by a judge. We will help a client through that process when it is required.

The Resolution guide to good process

Resolution has recently published a guide on the best approach for parties and their lawyers to adopt when faced with resolving the intricacies of divorce and separation.

The main features of the Resolution guide

In relation to divorce proceedings, the Resolution guide has five core recommendations to the party bringing the divorce proceedings and his/her solicitor. These are:

  1. A draft copy of the divorce petition should be sent to the other party except in cases of extreme emergency
  2. Where the divorce is sought on the grounds of unreasonable behaviour, the allegations should be kept as benign as possible to ensure that the divorce will be granted
  3. During the proceedings, provocative steps should be avoided unless necessary to protect the interest of the client
  4. From a legal point of view, naming the third party in a petition where divorce is sought on the grounds of adultery is rarely necessary
  5. Express regret that the divorce has arisen

The intention behind all these recommendations is to prevent a reaction in the other party which might slow down the proceedings or cause additional animosity and cost. Failing to observe these simple but sensible recommendations, on the other hand, will do nothing to improve the position of either party.

The most common comment we receive from our clients when divorce proceedings appear inevitable is that they want them concluded with minimum animosity and cost. There is enough anxiety, uncertainty and distress without adding to the problems by adopting an approach which will, in legal terms at least, do nothing to help the resolution of the problems.