The reasons behind relentless litigation

Family Law|April 5th 2016

An Australian divorce lawyer who I follow on Twitter tweeted yesterday that a matter he had been dealing with since 2005 had finally settled. Now, I know that that is nothing like a record for the longest family litigation (in fact, I may have had the odd case myself that lasted longer), but it does serve as a reminder of just how long divorce and family litigation can last.

Some couples will simply argue over everything: the divorce, arrangements for children, property and finances, topped off for good measure with cross-allegations of domestic violence. Everything is heavily contested, with applications being constantly issued, arguments at every step of the way and adverse decisions challenged by appeals. There are some family cases where the litigation only finally abates when the children have grown up and there is therefore quite literally nothing left to argue about (although some couples even find things to argue about after that). These cases can smoulder on and off for fifteen or more years, draining both finances and spirits (not to mention the effect upon the children). What a terrible waste of a life.

What are the reasons behind such relentless litigation? Well, there are probably many, but there are three that I came across regularly during the twenty-five-odd years that I was practising, all of which can be intertwined.

Firstly, there is simple animosity. Obviously, the breakdown of a relationship can give rise to very strong feelings, with each party blaming the other for what has happened. It does not of course help in the slightest that we still have a divorce system that requires the attribution of fault for the breakdown of a marriage, unless the parties have been separated for two years. How many times do couples waste precious time and resources on contested divorce proceedings?

Such animosity is not of course limited to the divorce proceedings. A desire for revenge can spread to all other aspects of the case, oblivious of the fact that it is only in very rare and exceptional cases that it is the duty of the court to punish one of the parties for their conduct. In children proceedings the court is concerned with the welfare of the children, rather than the rights of the parents, and in financial remedy proceedings needs and fairness are the court’s primary considerations. Of course, some litigants are aware of this, their aim being only to cause the other party further aggravation and expense.

The second reason is a sense of grievance on the part of one or both of the parties. They feel that they have suffered a wrong and that it is the duty of the law to put that right. There is, I suppose, a sense in which this generalisation is true – the law is there to right wrongs. However, in family proceedings it is very rarely as clear-cut as that and, as I have already indicated, the children take precedence over the parties, which can result in outcomes that have nothing to do with rights or wrongs between the parties.

Along similar lines, the third reason is a misplaced sense of right and wrong, where one of the parties refuses to accept the view of the matter taken by the court. We see this especially (but not exclusively) in children disputes, where each party has a very clear view as to what is right for their children and refuses to accept the possibility that anyone else can take a different view. Quite literally as I was writing this post I came across a new judgment in the long-running ancillary relief dispute Welch v Welch, in which His Honour Judge Hess had this to say about the wife:

“The wife is the most indefatigable of litigants. Defeat just seems to spur her on to further action with a fixed and obsessive view that she is right and that she will in due course be proved right in the courts.”

Of course, it is rarely the case that such a litigant will ultimately be proved right, and even if an appeal court should disagree with the decision of a lower court, it will not interfere with that decision unless it was clearly wrong – a point that I think is often misunderstood by litigants.

What can be done to put an end to relentless litigation? I’m afraid I don’t have the answer, and I’m not even sure if there is one, short of the court taking steps to stop further litigation, for example by use of section 91(14) of the Children Act, or a civil restraint order.. Otherwise, the only hope is that the litigant should receive and heed good counsel, for example from the judge, from a court welfare officer, a good friend, or even from their lawyer (assuming, in these post-legal aid days, that they have one).

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  1. Andrew says:

    I was in a case which began in 1928 and ends on 1989 and alas, I can say no more about it!

  2. Andrew says:

    Damn autocorrect. It “ended in” 1989.

  3. lavinia says:

    Try settling finances with someone who is mentally unstable drinking amd refuses even low offers to settle!

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