Divorce Day: Think before you rush to court

Family Law | 5 Jan 2015 0

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So today* is ‘Divorce Day’, the first working day of the New Year, when more people instruct solicitors to commence divorce proceedings than any other day. Or so we are told.

Over the festive period newspapers up and down the country have been merrily proclaiming that divorce lawyers in every town have been bracing themselves for today (it is remarkable how consistently the word ‘bracing’ has been used – clearly, other words do not sufficiently convey the idea of preparing for the impact of all those new clients hammering on solicitors’ doors). Like Black Friday and Blue Monday, ‘Divorce Day’ has become a regular (and equally depressing) feature on the calendar at this time of year, at least for those interested in selling newspapers and/or divorce services.

Personally, in the twenty five-odd years that I was practising, I never found that there was a particular increase in the number of divorce instructions I received in January, although many family lawyers swear that it is a real phenomenon. Perhaps it has only really materialised in the five years since I stopped practising, spurred on by the media interest.

The classic image is of yuletide matrimonial disharmony being the straw that broke the camel’s back of a marriage already on the brink. Christmas is, of course, the time when we are all supposed to be enjoying ourselves, and the realisation that our lives are not meeting the ideal portrayed by all those nauseating TV adverts showing happy families gathered around the Christmas dinner table can be particularly depressing. Clearly, in such circumstances, the answer is to rid yourself of that failed family (or at least that part of the family you can jettison: your spouse) and find yourself a new one in time for next year’s festivities.

OK, I may be trivialising things a little there. For example, I’m sure that there are many instances of domestic violence over the Christmas period, often no doubt linked to the consumption of copious amounts of alcohol. It is also true that New Year is a time when people determine to resolve problems in their lives, one of which may of course be a failing marriage.

However, I think it would be quite wrong to promote the image of thousands of solicitors immediately issuing divorce proceedings on the first working day of the New Year on the instructions of their unhappy clients. There are two reasons why I say this:

Firstly, the solicitor should ascertain from their client whether there is any possibility of reconciliation and, if so, suggest that they might seek marriage guidance. The solicitor does not have a duty to do this, and often it will be obvious that there is no possibility of reconciliation without actually raising the issue, but where it seems that there may be, then the matter ought to be discussed. After all, it is not the business of lawyers to bring to an end marriages that a capable of being saved.

Secondly, unless there is some reason for urgency, divorce proceedings should not normally be issued without first notifying the other party, and giving that party an opportunity to seek legal advice. Issuing divorce proceedings without warning is likely to unnecessarily antagonise the other party, jeopardising any possibility of resolving matters amicably, including such important issues as finances and arrangements for any children, and could therefore substantially increase the duration, cost and stress involved in the divorce. In fact, in some cases it is even possible to agree all issues before the divorce proceedings are even begun.

So, whether or not a spike in the number of people wanting a divorce in January is a real phenomenon, if you are contemplating taking that step take a moment to consider: is it really what I want? And if the answer to that is ‘yes’, remember: there may be a better way than simply rushing straight to court.

*Or was it last Friday, 2 January? After all, that was technically the first working day of the year. Some, however, argue that Divorce Day is the first working Monday of the New Year. Does it really matter? Something tells me that it probably does not.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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