Eight Steps To Avoid The Cautionary Tale of Crowther v Crowther

Another sad story rolls into our inboxes this week about the high cost of divorce.

Mr & Mrs Crowther seem to have spent around £2.35m to reduce their net assets  to a sum of £740k for division. Or put it another way, if they had been able to agree the pot and split it in half at the start, they would have been able to give themselves £1.175m each. In your early/mid fifties how do you come back from that and what is the legacy that it leaves your three children who have lived through it all?

Mr Justice Peel carried out a really careful analysis of the arguments and numbers, to reach his conclusions but the 16,000 words of the judgment really boiled down to this:

• The only beneficiaries of this litigation have been the specialist and high-quality lawyers. The main losers are probably the children who, quite apart from the emotional pain of seeing their parents involved in such bitter proceedings, will be deprived of monies which I am sure their parents would otherwise have wanted them to benefit from in due course.

The Crowthers were not bad people and certainly not stupid people. They had significant earnings between them and had accumulated significant wealth. What lessons are there to learn for those now following on to ensure that they can avoid converting the careful accumulations of a lifetime (including in this case the work of twenty-three years of marriage) into a set of resources just 16% of the value of their family home (£4.5m).

1. Avoid complacency: The first suggestion is to realise that this is not a unique story. Very few people starting out ever guess that this is what is going to happen to them and no-one intends it. The Crowthers will have had no intention at all of becoming the tragedy that is now laid out in terrible personal detail found here. However, all of us who separate have the capacity to allow the issues that separate us to become conflicted and by imperceptible steps we find ourselves in litigation, which, whilst resolving the questions posed also has the capacity to devastate. I think of parties as skating across a pond: the surface looks solid and the journey over looks easy … we can little guess how thin the ice may be in parts and can overlook how cold and muddy it is beneath. We then remember (or if we are unlucky, come to realise) how, once you are in, it can be very hard to get out again back onto the solid ice. Don’t be blasé about how you start out and assume that there are limitless opportunities to re-run if you don’t get it right the first time.
2. Think pragmatism rather than truth and justice: The family courts have no special ability to discern truth and no capacity to deliver solutions that leave us all gasping at their wisdom. The system is run by ordinary people by and large doing their decent best. You may not like the court’s approach – it is often about just finding ordinary ways forward with a slightly “make do and mend” mindset. It may be disappointing (particularly against the cost) but if this is what is on offer then the wise message to adopt is likely to be “get in, find an outcome, get out and get on with your life.”
3. Think longer-term: So many of the challenging issues in the Crowther case had boiled away to nothing by the time of the hearing. We often ask our clients to become the ‘three year older them’ looking back to help them now:  if these are issues that are going to matter then we are going to want to engage with the aspects, because they are clearly important … but otherwise … so many things that can capture thousands of pounds of lawyer attention don’t really matter three months down the road let alone three years or longer.
4. Give respect: We know – a hard ask – what drives us apart and then the reactions that are triggered at the end of relationships are unlikely to make us feel particularly warmly towards our ex … but our ex has their story too.  Descend into the analysis of fault, failure, blame and stain and your ex will follow suit. You are the person who knows them best – how can they possibly leave your charges unanswered. It is a game that is intoxicating, demanding and self-sustaining. A good friend made the decision at separation to try to connect to the person he was when he and his spouse married and had children. Whenever he felt himself straying off course, he would stop the conversation until he could manage himself back on track. Your future is now yours to shape; no-one has ever managed to batter sense out of their predicament via the court process.
5. Get support: This is all far easier to do if you are properly supported. Our friends and family will often give support by supporting our view, when the support that we really need is likely to be more challenging of our own perspectives. We will need help  a) to understand how we got to this place but also make sense of our contribution to it  b) to gather how we can help our children through the transition  c) to grasp where our ex is in all of it (the better we understand them, the better we can communicate and bring matters to a conclusion) and  d) to get support for the upset and disappointment that we are bound to feel in what the court system is able to deliver to us.
6. Give permission: We might all feel a warm glow from seeing our lawyer stride confidently out centre stage and with some rousing speech address witheringly the arguments put out against you, also commanding the vindication that it is so easy to come to crave at separation. But back in the real world all that such an approach will generate is the same coming back at us. When however, we give our paid help permission to create dialogue and find the early solution, we give ourselves our best chance at avoiding following Mr and Mrs Crowther in their tragic fall through the ice. Where we have selected our paid help for their capacity to create dialogue and find solutions our chances are all the greater.
7. Find the right forum: In particular giving instructions to our lawyer to find the right forum for dialogue will pay the highest dividends. Time and time again the best available outcome is not hammered out in the limelight of court proceedings by brilliant performers (as the Crowther case shows us). They are found because separating parties were able to find their way to the right people offering the right process and to make use of it at the right time. There is no one best process option – but speaking together, your advisors on each side are likely to find you the best way forward.
8. Think of your children: Where there are children, parties can be anchored by them to try to do well. Children should remind us that this is not a zero sum game; that we continue to have interests in common – and those common interests are more than just getting to a good outcome in a good timeframe at controlled cost. Separating parties each need to get through this transition well and each can contribute to their children doing so and their ex doing so, which should mean that the chances of toxic separations affecting children’s lives are reduced and all being perhaps well no-one else needs to fall through the ice again.

Last words to Mr Justice Peel:  “there appears to have been an almost complete breakdown of constructive communication … Each party thinks the other is, to use their own words, “out to destroy” them … I asked myself on a number of occasions whether the aggressive approach adopted by each side has achieved anything; it seems to me that it has led to vast costs and reduced scope for settlement. The toll on each party is incalculable (W was visibly distressed during the hearing) and, from what I have heard, the impact on the children has been highly detrimental”  – a route none of us would want to follow.