Divorcing Responsibly

Simon Calhaem, Barrister of 29 Bedford Row Chambers, London and Lydia Jackson, Solicitor of Charles Gomez & Co

When married couples separate the ensuing warfare can sometimes resemble the Great Siege (1779-1783) where for three years seven months and twelve days the opposing forces harassed and bombarded each other in every conceivable way. Must it be so in divorce? In enacting the Matrimonial Causes Ordinance of 1982 divorce was permitted by the Courts (having previously been restricted to a process initiated by Private Members Bill in the House of Assembly). Even then the Gibraltarian legislature wished to emphasise the duty of barrister or solicitor to advise their clients on the availability of conciliators for the parties and on the prospects of reconciliation; similarly in a UK government paper Looking to the Future: Mediation and the ground for divorce (1995), it was recognised that the lawmakers had “a heavy responsibility to ensure that our law recognises the importance of the institution of marriage and also to ensure that it does not impose unnecessary damage on the personal relationships with which it deals, particularly those of parents with their children”.

Whilst many of the reforms proposed by this sentiment never actually came into force there has been an increasing recognition in England that the decent into immediate and intractable warfare can be avoided in certain circumstances and that a responsible and effective settlement can be achieved without years of expensive and unwieldy litigation.

Unfortunately instances of all-out warfare are rife. When Michelle Young recently ended her divorce battle against her ex husband Scot, Mr Justice Moor described the case as “quite extraordinary even by the standards of the most bitter of matrimonial breakdowns”, Mrs Young had spent over £6m in legal and litigation fees, there had been 65 court hearings and Mr Young had even been committed to prison for 6 months during the proceedings for failure to produce documentation. Mrs Young’s award (£20m) is reported to have been described by her as “disgraceful”. 7 years after commencing proceedings she vowed on Radio 4’s Woman’s Hour on 15th December 2013 to “fight on”

In an older but no less pertinent case the now President of the Family Division (Lord Justice Munby) likened the proceedings to the Dickensian Jarndice v Jarndice . . .”speaking of a case which had been conducted at “vast expense”, the Deputy Judge lamented that the late Mr Charles Dickens was no longer alive to write a 21st century sequel to Bleak House. The simile, if we may say so, is all too apt. The accusatory finger which in the 19th century was appropriately pointed at the High Court of Chancery is, in the modern world, more appropriately pointed at the Family Division.”

But what are the alternatives to this level of hostility? There are two important practical ways in which this responsibility has been expanded in England and Wales, the first is the rise of “collaborative law”, various methods of lawyer-led negotiation on a non-adversarial basis. The second is a more aggressive, but no less effective method of dispute resolution under the Financial Dispute Resolution procedure (FDR), this allows the parties to attend court and be guided by a judge as to the appropriate outcome at an off the record or “without prejudice” hearing.

At a hearing listed for,  normally 1 hour, the parties’ set out their respective arguments in brief and without anybody giving evidence the court can see the respective positions and suggest a way forward (normally by commenting on the quality of the offers which have been made)

Whilst the availability of the FDR is limited outside England and Wales, it is possible to ask the court to give some guidance at the first appointment of the parties financial claims at court or even to hold a “private FDR”, essentially by paying for a judge from England to act as the mediator, (these are now commonplace in the Channel Islands and the Cayman Islands) and can be made available in Gibraltar.

Reference to the “family law protocol” in the 2009 Children Act (Gibraltar) is a clear invitation for the parties and their representatives to heed the guidance set out within which includes, amongst other matters, a requirement to consider mediation or other alternative methods of dispute resolution.

There will of course be cases where no amount of sensible negotiations will give rise to offer which is capable of being accepted. In an adversarial system, at the end, there is no alternative but to “take off the gloves” as the litigation moves into it’s final phase (trial).

We live in an adversarial system. The natural consequence, if the parties don’t focus, will be a combative engagement where a judge will impose the outcome. In many respects, both psychologically and financially this can be less rewarding than a negotiated settlement or one reached after the judicial assistance of a private FDR.

Properly representing your clients is not always a matter of total war. Optimum settlements can be often achieved by taking a more pragmatic view and ensuring that a costs/benefit analysis is carried out early and frequently. Sometimes the best course to steer does not end at the Grand Assault.