Working Through Marriage As An Alternative To Divorce

It was recently reported that Barack and Michelle Obama were on the cusp of divorce in 2000. Since then they have admitted that they went through a rough patch but that after working things through, their marriage is now stronger than ever. 

A recent survey compiled by the EU's Eurostat statistical office revealed that Britain has the highest divorce rates in the European Union. 

This begs the question: why? Do couples leap into marriage without understanding the full implications of the lifetime commitment that it entails? Are couples so swept up in the fairy-tale culture portrayed in the media that when a marriage gets tricky they cast around for the nearest exit and / or for the next romance rather than putting in the effort to work through any problems with their partner? Are couples lacking in the emotional literacy to communicate effectively about their relationships, particularly in times of difficulty? Do some spouses see the “D-word” as a means of exacting revenge on their other half? The divorce market is booming with entrepreneurs cashing in – for example, “divorce hotels” in The Netherlands and US offer quickie divorces over a three day weekend stay. 

However, divorce is not an easy route. It polarises couples, which is particularly difficult when civility and dignity should be preserved as much as possible for the benefit of any children involved. Unless the couple is happy to wait for two years or more to divorce, one party must commence divorce proceedings by "blaming" the other for the marriage breakdown citing instances of their unreasonable behaviour or adultery in the divorce papers. This, unfortunately, is not the most conducive start to amicable negotiations about arrangements for children and/or finances. It is not a matter of simply citing "irreconcilable differences" and leaving it at that as many spouses think.  

Recent data suggests that the average cost of a divorce is £40,000 each side in London and £13,000 elsewhere in the UK. Then, of course, there are the emotional costs involved not only to the divorcing couple themselves, but their children and wider family members who are often reluctantly lined up on either party’s “side” having been enmeshed in the couples lives for the duration of the relationship. 

And yet divorce is often the first option that spouses consider when their relationship breaks down. It should not however, be seen as the only option. 

Alternatives To Divorce 

• Not getting married in the first place. Cohabitation is on the increase as it has become more socially acceptable to live together and parent children outside of marriage. However, people living together should consider the financial implications of the relationship breaking down as these can seem unfair, particularly after a long and committed relationship involving children. The financial consequences of the relationship breakdown can, however, be regulated by a cohabitation agreement. 
  Parties who do marry should consider the financial implications that marriage brings at the outset, however unromantic that may seem, and consider whether a pre-nup is appropriate. 
  
  
• Relationship counselling to salvage the relationship, preferably before positions become entrenched and communication too strained or, at worst, non-existent. Relate provide useful information about the services they can provide on their website www.relate.org.uk. Trained relationship counsellors meet with the parties to find out what they wish to achieve and work with them to achieve the goals. Making the initial contact with the service can be daunting. However, once made, the majority of their clients report that it is one of the best moves they ever made. Even if reconciliation is not possible, Relate can assist the parties in communicating during the relationship breakdown and with any children of the family. It is worth noting that a large percentage of people who separate report that, with hindsight, there were things they could have done to prevent the breakup and wished they had done more to save their marriage. 
  
  
• In addition, spouses may like to consider whether family therapy would be beneficial both to themselves and the wider family. Therapists can work with individuals, the couple and/or the children as well as with third parties such as doctors and teachers to facilitate communication and change. Further information can be found on the website for the Association of Family Therapists and Systemic Practice at www.aft.org.uk. 
  
  
• Separation. Whilst there is no such thing as a “legal separation” – it is a matter of fact as to whether you live together or not – it may be a good idea to live apart not only to preserve civility and to save on legal and emotional costs, but for other reasons. For example, it may give the couple the breathing space required to gain perspective on the difficulties in the relationship and could provide a forum to build better communication between them with a view to reconciling. If a reconciliation is not possible, then it may be of financial benefit for one party to remain a spouse (for example, for pension reasons or for tax reasons). The nuts and bolts of the finances and children-related matters can be resolved by the parties either direct, with the aid of third parties such as mediators, or through solicitors. The agreement reached can then be embodied in a written separation agreement. It should be noted, however, that such agreements are not legally binding and can be set aside by the Court in any subsequent divorce proceedings. 
  
  
• Even if a party considers that they are probably going to go down the divorce route, they may wish to consider whether to ask the Child Maintenance Enforcement Commission (formerly the CSA) to assess and collect child maintenance to alleviate the immediate financial burden upon initial separation. 

Rebecca Dziobon is a Solicitor at Charles Russell LLP.