Empathy and sensitivity: a new approach for no-fault divorce

Many lawyers have campaigned hard for no-fault divorce. As a result, we see and understand the obvious benefits, but this may not always be the same for our clients.

To them, divorce will be a painful and stressful process, regardless of the legislation involved. A sanctimonious lecture on how no-fault law is the best thing since sliced bread is unlikely to offer much comfort.

The removal of the necessity to allocate blame is certainly long overdue, but it does bring its own set of challenges. This includes the lack of opportunity for a party who is aggrieved to tell their side of their story in divorce particulars. Neither can they place blame on their partner when they feel wronged.

We know as practitioners that an emotive divorce petition allocating blame and detailing the reasons for the marriage breakdown will not change our client’s financial settlement.

It can often increase acrimony significantly and waste legal costs in the process. However, moving your client to see things that way may be challenging.

Emotional toll on clients

As a family lawyer, I see the emotional toll divorce can take on parents and spouses in almost every case I take on.

Divorce stirs up a bubbling cauldron of heartache, sadness, worry, anger and frustration, only partially tempered by a sense of release and relief. It is a life changing event.

In many cases, the allocation of blame gave the truly aggrieved an ‘official’ outlet and opportunity to have their voice heard.

That opportunity perhaps brought a degree of closure, allowing both sides to move on with renewed self-esteem (or at least with their pride a little less dented).

No outlet for emotions

Under no-fault divorce, separating parties will not necessarily have an outlet for all those pent-up feelings.

No-fault divorce is a highly standardised process.

It will inevitably seem cold and impersonal to many of our clients, especially when they may be served notice by email, be party to filing in an application online.

Clients may feel the impact of having no opportunity to contest a divorce they may not agree with, despite how rare these actually are.

They may view the court process as clinical when it has such a real and obvious effect on their lives.

There are other considerations too:

• no-fault divorce may end the ‘blame game’, but it doesn’t mean that all couples will suddenly stop blaming each other
• whilst joint applications are available, that alone won’t ensure that all couples will agree and be amicable all the time
• and just because one party can’t contest a divorce, it doesn’t mean they will roll over and accept it without deep feelings of hurt and upset

Those feelings will transcend into how they deal with their financial settlement and make arrangements for their children. These feelings won’t magically disappear.

The personal face of divorce

As their family lawyer, my clients need and want to tell me all about their relationship, finances, family, children, and their hopes and dreams for the future.

Often, clients are voicing and sharing this level of emotional information for the first time with anyone, let alone someone they have never met before.

They want to be assured that I have all the information before I advise them on making life changing decisions. It is genuinely difficult for them and tears frequently flow.

That’s why as family lawyers, I believe we need to reinforce our position as the personal face of divorce, with all the challenges that brings.

Helping clients through a no-fault divorce will require a huge amount of sensitivity.

We need to really tune in to what clients are saying with the new process, and not make it a tick box exercise.

Practitioners need to strike a delicate balance between listening with empathy and being sympathetic. We do not want to be perceived as their counsellor.

However, we do need to ensure that we are not dismissive of their feelings about allocating blame and feeling wronged, despite the new law.

Family, friends and fuelling the fire

At my family law firm, we’re conscious of the key roles that friends, family and social networks can have in offering support for clients, but also in stoking the fires of resentment and frustration.

We’ve frequently had to deal with the fallout from digital ‘slanging matches’ via email and social media, where a small comment can blow up into a major issue.

No-fault divorce could increase your client’s desire (and perceived requirement) to have their side heard via whatever means available.

A marathon not a sprint

Divorce can be mentally challenging and emotionally draining for a sustained period of time. Whilst the new 20 week waiting period in no-fault divorce is a welcome cooling off period, for some clients it could be seen as five months of being in limbo.

It offers time for brooding resentment and frustration to potentially build, just as much as time for passions and anger to cool.

In reality, family lawyers will know that with recent delays, many divorces aren’t dealt with quicker than this anyway, due to financial settlements. Again, however, a client may perceive this as a much longer process.

At LGFL, we’ll be partnering with mental health specialists to offer ways for clients to receive emotional and psychological support during this period, and after their divorce is finalised.

Not our job

As family lawyers, we need to acknowledge that it is not our job to offer this level of emotional support. We are family lawyers, not trained counsellors.

Now is the time for us to encourage clients to get support through therapy, counselling, mindfulness, or whatever works for them to reduce their anxiety level during what is an immensely difficult period for them.

I consider helping clients seek this appropriate professional help elsewhere as part of the personal and empathetic service we offer as divorce lawyers.

As I said at the start, for many practitioners, no-fault divorce is a long-sought change in legislation that we passionately believe in.

However, we can’t be judgmental or dismissive of the client who disagrees or views it differently.

As family lawyers, now more than ever, we need to tailor our approach to ensure no-fault makes positive changes for both clients and practitioners.