Divorced from reality? How the myth of “divorce day” jeopardises good divorce

Those who have the (mis)fortune to follow me on Twitter, or indeed to know me through having met me (unconventional I know), will be aware that at this time each year I reach peak levels of grumpiness for one particular reason. Yes, I lament the taking down of my Christmas tree and associated festive tat, the dawning realisation that United needn’t make any extra space in their silverware cabinet this season and the rubbish that appears in the winter sales. But my biggest source of irritation? Family lawyers peddling so-called “divorce day” and journalists, anxious to fill column inches and airwaves in the slow period Betwixtmas, falling for (and sometimes even, aiding and abetting) it.

So why does talk of “divorce day” (now as regular at this time of year as the Daily Mail depressing us mere mortals with incessant photos of celebs with ripped abs on far-flung beaches) have me reaching for the Valium? And how, aside from stopping perpetuating the myth that people should be rushing headlong into divorce in January, lemming-like and without consideration of their/their spouse’s emotional readiness, can we ensure that as many as possible achieve the holy grail – a good divorce?

Why are suggestions that tomorrow is “divorce day” anathema to any family lawyers worth their salt?

Borrowing from previous rants on this topic, which I have traced back 13 years (more below) and about which I have been moaning for almost as many, my primary submissions to the court of common sense are fourfold :

1. There is no evidence that more divorce petitions are issued on the first working Monday in January than any other day of the year

Confession. I like a stat. I get excited about the publication of the Family Court Quarterly Stats; and the prospect of the regular ONS bulletins about marriage, divorce, cohabitation and households in the UK has me virtually reaching for the smelling salts.

Now I will accept, having studied the evidence, the more watered-down version of the “divorce day” story, that enquiries to family lawyers go up in January. Searches for “divorce” online surge. Data provided by Google trends shows that Januaries 2012 and 2016 were the two most popular months for divorce searches in the last decade. That no doubt leads to increased enquiries to law firms (who, in their quest for good divorces rather than divorce day statistics/quick profits, will be signposting enquirers to marriage counselling or planning a dignified, child-focused parting of the ways that does not involve pressing the eject button speedily and without regard to fellow passengers). But that does not, in my and others I know experience, translate into the phone ringing off the hook the first working Monday in January. Nor does it mean that family lawyers should be using this as a marketing tool, rubbing their hands with glee. I always wonder, if those family lawyers simpering on the couches of TV breakfast shows or in the studios of radio stations on the day in question are really that busy, or expect to be, how do they have time to be away from the office and why have they not prioritised clients in crisis over a media blitz…?

However, the whole premise of the more extreme “divorce day” story seems to be that after an unhappy Christmas, a spouse not only sees a family lawyer the first Monday back after the festive hols, but also instructs them immediately to issue a petition. Jurisdiction race considerations aside, that never happens. What of the need to prepare the petition, get the marriage certificate and (so we don’t breach the Resolution Code of Practice) share a draft with the other spouse first? The reality is that we’d trigger a flood of complaints (rightly) about breach of the Code, not to mention a raft of defended divorces and (even if undefended) unhappy, protracted discussions about money and children aspects if we behaved in that bull-in-a-china-shop way.

And back to those stats. The most recently available family court quarterly stats are for Q3 2019 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/852097/FCSQ_July_to_September_2019.pdf Amongst other things, the stats show the volume of divorce petitions by quarter (though not, admittedly, by day). An analysis shows the number of petitions being issued recently as follows –

2019 – Q3 – 29,531

2019 – Q2 – 28,144

2019 – Q1 – 29,136

2018 – Q4 – 28,539

2018 – Q3 – 29,971

2018 – Q2 – 32,230

2018 – Q1 – 27,401

In 2018, the last full year for which we have figures, the first quarter of the year was when the LEAST divorce petitions were issued (and there was an 18% increase in the number of petitions issued in the second quarter compared with the first quarter). In the three quarters of 2019 so far published, issuings in Q1 lagged behind Q3. Admittedly in recent years there have been some quirks in the stats to reflect the much-pilloried divorce centres having an exceptionally bad quarter performance-wise (or, paradoxically, an influx of temporary staff to blitz the backlog); but the short point is that none of this (or indeed more historic stats) supports the theory that there is a flood of divorce petitions being issued immediately after the Christmas break.

2. It is distasteful

I hope that this limb of my argument is a “slam dunk” – and the growing revolt, from family lawyers and journalists, suggests that it is – so I don’t propose to expand on it. I have previously likened the behaviour of family lawyers who rush out divorce day press releases on Christmas Eve as they put on their out of office, to undertakers anticipating a rush of deaths in January and having a jolly marketing campaign around it. By engaging in divorce day tittle tattle, we are preying on human misery and hoping that as many couples as possible will have had a rotten Christmas. Rival firms’ PR teams – 99% of the time you’re welcome to do what you want, but perpetuating this topic reflects badly on our whole profession. So stop it.

3. It is irresponsible 

Why “irresponsible”?

Most clients have never divorced before and look to us for guidance. Many (at last count 81% of family cases involved at least one unrepresented litigant) cannot afford much (if any) legal advice and rely on the internet. In both instances they are looking for norms, in uncharted seas and with waves of emotion washing over them. They need to be able to make informed decisions.

Those who come to me can be at different stages in the grief process. Some have had lots of couples counselling and are certain of their decision to divorce, often (but not always) mutual; others are taking very preliminary advice, fearing the worst, hoping for the best, and wanting to be prepared; and then there are those who were standing on the deck of their marriage, thinking that the waters all around were calm and suddenly being hit by a tidal wave, in the form of their spouse announcing a desire to divorce, the leaver having already put on their life jacket and set sail in the life raft, the leavee floundering around under water. Each will need a different type and level of support, but what binds them is a desire for “norms”.

So what signal does it give those contemplating divorce, at their own or their spouse’s behest, if we continue to peddle the story that people are flocking in droves to end their marriages/to see a divorce lawyer on a particular day in January? Does it become a norm that drives people to make what can be a far-too-hasty decision, when my opening line to clients is always that the one thing I will never advise them on or pressurise about is whether and if so when to end their marriage, as that it such a life-changing, personal decision? And wouldn’t it reflect better on our profession, whilst acknowledging how hard Christmas and New Year can be for families in crisis, to point out that ALL marriages go through rocky patches and intensive counselling should precede hasty decisions? Only those who have already had that counselling, or for whom a marriage is in crisis due to domestic abuse, should be encouraged to start a legal process in January.

4. People are more likely to have a “good divorce” if they have taken time to try to work things through

This, for me, is key. Achieving a good divorce for clients should be the goal of every family lawyer. If my cases encounter turbulence, as the pilot I always reflect afterwards and think, could we have identified that storm cloud in advance and avoided a bumpy part of the ride? Or at least warned the passengers to fasten their seatbelts?

When clients ask what are my tips for a “good divorce” (of which, more below), my starting point is always that they should be sure that divorce is what they really want. Generally our experience as practitioners is that if a couple agree that the marriage is over and feel that they have done their best to save it, they are more likely to have an amicable separation.

Sometimes, of course, divorce isn’t a mutual decision. I always advise that if that is the case and my client is driving the divorce, they should be patient with their spouse and not rush the process; and if they are on the receiving end of a request for divorce, they should ask for time to come to terms with it if needed (which often it is). The most acrimonious divorces tend to be those where one or both spouses isn’t emotionally ready. Therapy can be a useful way to discuss, understand and come to terms with why the marriage ended, which tends to make the legal process smoother. That time can also enable them to think about how to prioritise the needs and feelings of any children, road-test arrangements and work with a family consultant or mediator on how they will work as co-parents post-divorce.

Again, perpetuating the myth that it is normal to bring a marriage to an end in a particular month puts all of this in jeopardy. This is a time for sensitivity, not crass marketing.

How to have a good divorce

For both those who are reading this as they contemplate divorce, and family lawyers mulling over how to ignore the divorce day circus and best assist their clients, I conclude with thoughts on how to have a “good divorce”.

This time two years ago I, along with “top family lawyer” Nigel Shepherd and “queen of no fault divorce” Professor Liz Trinder, appeared on an ITV Tonight special, “Divorce Wars” which covered problems with the existing law and the case for no fault divorce. I was in the studio as it went out and then did a live Q&A online for an hour immediately after transmission. The producer commented that she needed several more of me to deal with the deluge of questions, most from people who just didn’t know where to turn. So I produced (and replicate below) my “Top 10 tips for a good divorce”.

1. Be sure that divorce is what you really want

All relationships go through a rocky patch; couples counselling can help. I have cases where couples reconcile; mediation can be a good forum for addressing non-emotional difficulties which may help preserve the marriage (e.g. is there lack of financial transparency and a need for a discussion; does one feel exposed on the other’s death and could a Will help; is one coming into family money which they wish to preserve for future generations, through a post-nup?). If, however, you agree that the marriage is over and that you have tried your best to save it, the parting of the ways is more likely to be amicable if you have worked at it.

2. Timing is key

If you’re the one driving divorce, be patient with your spouse and don’t rush them. If you’re on the receiving end of a request to divorce, don’t be afraid to ask for time to come to terms with it. The most acrimonious divorces tend to be those where one or both spouses isn’t emotionally ready. Therapy can be a useful way to discuss and understand why the relationship ended, which tends to make the legal process smoother. I recall one case years ago where my client had been told by her husband of 40 years that the marriage was over; she was understandably devastated and unable to do anything other than cry throughout our initial meeting, processing nothing I was saying. I phoned her husband’s solicitor, told him to back off talk about issuing a petition, and sent my client off for intensive counselling. A year later she took ownership of the process, issuing divorce proceedings herself and having her say on the finances at a round-table meeting (which soon settled things).

3. Put the children front and centre

Prioritise the needs and feelings of any children, ensuring that they have a relationship with both parents during and after divorce provided that it is safe. However much bad feeling exists, marriage breakdown is never the fault of a child. Exposing them to conflict, and/or forcing them to take sides, risks causing them lasting emotional harm. As family lawyers, we cannot stress this enough.

4. Don’t cut off communication

Ensure a line of communication is kept open with your ex during the divorce and (where there are children) afterwards, only unless there are very good reasons for not doing so. I have many cases where couples will not communicate with each other, which adds significantly to legal costs (we are a very expensive letter box) and is miserable for children. If direct contact isn’t possible at first, perhaps agree a third party through whom you can communicate or a means of communication like WhatsApp or email (keeping the tone respectful at all times). Where I am mediating a couple who are having difficulty communicating in a civilised way/at all, I encourage them to copy me in on their communications for a time (without charging them or engaging at all) as this tends to make them think twice about the language they are using. As parents, you need to be able to work together for a number of years and cannot run back to lawyers whenever there’s a minor disagreement.

5. Be open

Be clear about what you want from the divorce as the sooner you explain where you’re coming from and what you want, the more likely it is that your ex will see your viewpoint. At the same time, be pragmatic and open to compromise – entrenched positions lead to delay, acrimony and cost. The best outcomes are where both spouses leave the table slightly unhappy, rather than having a winner and a loser. And be transparent about your finances.

6. Be realistic

There needs to be a dose of realism brought to every case. You should take advice about what you may be entitled to expect, in terms of money and children (and if you can’t afford full-service advice, invest in a couple of hours of tailored advice and signposting, which some firms offer for free. There is a raft of information available online but it’s worth getting a steer as to how the law may apply to your case). Most cases that end up in court do so either because one person is trying to achieve an unrealistic outcome, or because one has not been fully transparent about their finances.

7. Work together

Going to solicitors, or a mediator, with a measure of mutual understanding about the financial picture, and even an idea of how the finances or children issues may be resolved, is the most cost-effective way forward and likely to lead to the quickest outcome. Many couples come to me as a mediator clear about what they think they want to achieve but wanting me to reality-test their agreement and highlight any points they may not have thought of. Openness to solutions is key.

8. Court isn’t the “norm”

Mediation or collaborative practice are the best processes for achieving a good divorce. You and your ex will be directly involved in discussions and will be able to hear what the other has to say, but in a supported environment. An arrangement agreed between you and your ex will likely be more successful in practice than one imposed by a judge (and cost less).

9. Educate yourself

There is a lot of information available online about divorce. Although it is sensible to have legal advice, you can save on costs if your solicitor does not have to explain process and their involvement is limited to advising how the law may apply to your case. Make sure you understand how your solicitor charges, be clear about the level of involvement you expect and make sure you agree a budget for costs and stick to it.

10. Look after yourself

No matter how amicable it is and whatever the circumstances, divorce can be tough and take its toll. Look after yourself and keep your friends and family close. A support network (and, in most cases, a course of therapy for those more difficult moments as you go through divorce) is very important, so you don’t feel isolated or overwhelmed. I have some clients who have continued with therapy for years after a divorce as they have found it helpful; decide what is best for you.

Hopes for 2021

I say it every year, and the phalanx of “divorce day” conscientious objectors is growing; but next year I hope that

• There is no #DivorceDay referenced on Twitter (except to shout it down, as in this excellent thread)

• There is no more need for journalists to call out this nonsense

• These headlines, and lawyers’ press releases leading to them/simpering TV sofa appearances will be a distant memory

• A more measured narrative, leading naturally to more “good divorces” whatever the time of year, will take hold (as in this New York Times piece https://www.nytimes.com/2020/01/04/style/january-divorce-month.html )

Postscript

Over the festive period, and having seen my many posts on the subject, someone contacted me to confess to being “ground zero” for the divorce day phenomenon, saying they concocted the story back in 2007. For their sake, I shall say no more.