NICHE FEATURE
Separating
smarter
A new bill is going to help soften the blow of divorce. For now, the law will continue with its ‘archaic’ practises. Here’s an alternative option WORDS BY KERRY SMITH
T
he no-fault divorce law is expected to come into play in spring 2022. Currently, a divorce must be based on one of five factors: adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years’ separation. Former lawyer Sushma Kotecha expressed her concerns: “Historically, couples have had to divorce on an archaic legal system set up to create more conflict.” Attitudes towards marriage have changed drastically since the Matrimonial Causes Act 1973. With this in place, if none of the non-contentious factors affect the marriage, applicants have been left with no choice but to file for divorce on the grounds of unreasonable behaviour, which in many cases, the other party is understandably unwilling to accept. The no-fault bill will mean couples can divorce on the grounds of ‘irretrievable breakdown’, proven simply by a statement signed by one or both partners. “It’s embedded in us that when we want a divorce, we need to call a lawyer, but that’s not always the case,” explains Sushma, who set up Holistic Family Mediation this year after 27 years working as a divorce and family lawyer.
There’s a kinder way to separate without taking legal action (litigation).
Litigation versus mediation
Noah Baumbach’s 2019 film Marriage Story shows just how litigation can destroy a couple’s chance at a harmonious separation. Sushma said: “There are pressures of chargeable time and targets on lawyers, so clients are not often encouraged to go down dispute resolution routes like mediation; there are more fees in litigation.” Mediation is a holistic approach for people wanting a smarter, more dignified separation limiting the psychological impact on them and their families. If couples don’t at least try mediation, allowing them to come to their own arrangements on their own terms, it’s likely a judge will impose outcomes on them, determine facts about the past, order Cafcass to investigate welfare issues and determine their children’s wishes and feelings, and decide what’s best for their children and finances. “In the litigation battlefield, the financial and emotional cost is significant, don’t rush into it,” warns Sushma. “I know how toxic and soul-destroying court can be. But people can instead achieve a co-operative future like I did. Our
IN THE LITIGATION BATTLEFIELD, THE FINANCIAL AND EMOTIONAL COST IS SIGNIFICANT, DON’T RUSH INTO IT
children and future generations count for much more than who’s right and wrong.”
Sushma’s story
Sushma realised her marriage no longer served her family after working hard at it. “It was painful, but by approaching the separation and divorce with the lens of a mediator, we managed to look forward without judgements about the past. We divorced in a way that meant we could attend our son’s graduation together, see his new house together, take our daughter to uni together, and spend Christmas together. So many couples cannot even share space. We took responsibility and shelved our adult issues.”
Less pressure for the courts
The no-fault law will support mediation as courts encourage couples to use more productive separation methods, trusting the judgment of the couple. Sushma added: “More regulations will direct people to mediation because courts have a backlog of work that doesn’t need to be there because there are other, more suitable forums for dealing with the fallout of divorce.” For more details, visit holisticfamilymediation.co.uk or call 0330 912 7403. NICHE | 33
