How Soon is Too Soon to Divorce

It’s a tricky one. The two year separation has fallen out of favour. Largely because many separating couples emotionally find it difficult to remain legally bound to a person of their emotional past when they are concentrating on building a future in real and personal terms. But also, because many people find it impossible to leave financial matters unresolved for two years or are not willing to have their agreements potentially reassessed at that point.
The upshot is that, in my experience, the unreasonable behaviour divorce is king, offering the only real option for couples who want to formalise their situation immediately. Now forcing a one eyed post mortem of a failed relationship is something that can test the most amicable of couples who see the unreasonable behaviour petition as a means to an end. For others, it is emotionally catastrophic.
Good practice dictates that lawyers should try to agree the content of petitions and keep them as mild as possible. Having found Judges increasingly willing to reject shorter and milder petitions (with resulting delay and cost for couples) I find it hard now not to keep more in than not. (Personally and professionally I find that unsatisfactory but that is another blog). In addition, I have found that people are willing to use the attempt to agree a draft petition in advance prior to issuing as an opportunity to ‘get in first’ with one of their own. The result is an unhappy client and a lawyer with egg on his or her face (albeit for the right reasons). So people often insist on issuing divorce proceedings without notice (or give notice once the papers have been sent to the Court) to avoid cost and delay. This is, to say the least, usually an unpleasant shock for the other spouse. But is it counter productive?
I saw an interesting comment recently which says that people do not want conflicts or to pay lawyer’s fees. I have to say that is not always true. And it depends on how lawyers and clients define conflict.  Often, I speak with someone who, where I see a conflict to be resolved, sees a marriage that needs to be saved. Conflict resolution is difficult if you do not agree on the conflict. Advice is not sought on a swift and cost effective solution. If anything the desire is to prolong the ‘conflict’ for as long as possible. It is not unusual for one spouse to be determined the marriage should be dissolved immediately whereas the other feels that this should be resisted at all costs to provide a chance for reconciliation.
What does the lawyer advise? Be realistic, save money and cooperate with the divorce. That would be a patronising and cold dismissal of a sincere and genuine desire to keep a young family together. It would mean overstepping the mark quite considerably in my opinion. But it is also quite improper to encourage a defended divorce where considerable (and unnecessary) costs could be ill afforded and the damage to the couple’s future relationship as co parents would be irreparable. Ultimately, the result would be the same: a marriage as dead as a dodo. So I answer the questions put to me honestly, advise on costs and am supportive and respectful during a time of great soul searching and transition. I also sow the seed that is easier to be in control of a process you dislike than be forced to react to it in the hope that time will nurture it quietly.
I point out that a weak petition may fail, a defended divorce will delay the inevitable and suggest a two year separation and a divorce by consent. It allows one spouse the comfort of finality on a risk free (and cost effective) basis whilst the other has breathing space. Maybe to win back a spouse but certainly to reconcile themselves to the breakdown of the relationship and, hopefully, to realise of his or her own accord that it is better to be out of an unhappy marriage than fighting a losing battle.
I am a fervent believer that forcing a divorce at a pace much faster than that of the partner struggling with the decision is usually counterproductive. Sometimes waiting does save costs, ensure both spouses are in a good position to make fair and sensible financial decisions and preserve a parenting relationship.
Unfortunately, it think it is unlikely that the solicitor of the other spouse will agree.

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