A different type of Divorce Day in 2023

As Divorce Day looms family law specialists are used to seeing an increase in enquiries from potential clients looking to discuss their personal situation. This is how we reflected on Divorce Day a few years ago.

This year has however been slightly different from the past few years in that more people have made contact immediately when our offices re-opened after Christmas. Rather than wait until the New Year, which is typically a time for reflection and new beginnings, more people have been in touch as soon as Christmas Day is over.

The cost of living crisis has led to people feeling generally more stressed and anxious, which has an impact on personal relationships but also makes it more difficult for people to pursue divorce.

In Scotland divorce is the last stage in the process of disentangling child-related and financial arrangements. Commonly people resolve those issues without the need for orders to be made by a judge or sheriff, with the court becoming involved in granting the divorce only.  Those cases in which the court does need to make orders can be managed efficiently to try to make sure that costs don’t spiral, though there can be issues with that where the process depends in part on how the other spouse conducts their case.

In this climate individuals don’t just have to consider how to manage their legal costs. Preferred outcomes are more difficult to achieve, too.

The common outcomes of selling a property to purchase two homes or having the family home transferred to the sole name of one partner or spouse are more difficult to achieve in an economic climate in which interest rates are rising steadily, and the ability to secure an affordable mortgage offer is hampered. The property market is difficult to predict just now. Rental properties are few and far between, with rents at a high. Making two households work where once there was one to fund is hard without then also factoring in legal fees.

Nesting

More and more people are considering a temporary outcome known as “nesting”, in which couples agree to live separately but in the same property until such time as they can manage a more permanent financial separation. In that scenario it is really important to consider the day-to-day aspects – what will life actually look like, as well as who will pay for what? Most people don’t want life to continue as it was before the decision was made to separate; that is the point of ending a relationship – but tricky and unexpected issues can crop up around who uses which rooms, when, and who will be responsible for looking after children. Boundaries are important, and require careful navigation. It is also essential to consider how not only the fact of the separation but also the new arrangements will be explained to children to minimise the potential of any negative consequences in terms of their level of understanding or wellbeing.

Research tells us that it is not the fact of separation that can harm children’s emotional wellbeing, but rather how parents deal with the process. Family lawyers can help guide parents through that, so it is worth investing in legal advice.

Sometimes preferred outcomes just aren’t achievable because of financial or practical constraints, and people need to be pragmatic about that. Staying together out of financial necessity or for the sake of ensuring children continue to have a stable home and a good standard of living is not ideal from the perspective of individual happiness and wellbeing, but it is sadly happening more and more because of the economic climate.

Mediation can be more cost effective

What we solicitors can do is take time to explain the spectrum of resolution processes to help make sure that individuals end up in the right process for their circumstances. Mediation can be a more cost effective and constructive way to resolve issues rather than litigation in court. Collaborative practice can work well for people who wish to adopt a problem solving or needs based approach in which both consider the needs of the separated family unit as a whole. It is really important that family law specialists offer a more strategic overview to clients to help get them to where they need to be, rather than necessarily supporting them in pursuing an agenda which might ultimately be costly in terms of not just finances but wellbeing, too. Shopping around for the right fit at a sensible hourly rate can help people feel more in control and reassured.

Having honest conversations

Doing that sometimes involves quite difficult and direct dialogue about the financial realities, and what is realistic in terms of outcomes. There is work that individuals can do to help their family lawyer collect necessary information and understanding about preferred outcomes, too. That requires a good, honest working relationship and an ability to be direct with each other about any concerns about the conduct of a case or payment of fees. The economics of separation and divorce are complex, but there is a lot that we can do together to try to ensure positive futures.