Is an Amicable Divorce Really Possible?

Should you aim for an amicable divorce?  Is an amicable divorce best?

James Pirrie considers whether being “amicable” is really the best approach and if the focus should be on achieving an amicable divorce. As a family solicitor, mediator, arbitrator and practitioner of collaborative divorce, James specialises in non-adversarial and cost-effective approaches to achieve fair outcomes. 

“Make it amicable” the passing bus tells me.

Well yes – but there is a lot more to it than that.

“Make it amicable” is the sort of thing the smiling spouse (with all of the knowledge about all of the assets) says in defence of their outlandish proposal about care for your children or sharing out the finances and maintenance.  “Make it amicable” taken at face value is next door to “don’t talk to the lawyers – they will only stir up a fight where we already have agreement,” the stock in trade of the coercive spouse with a crocodile smile, intent on isolating their ex from securing the right outcome.

Those lovely folks at amicable have a lot to say and some of it is profoundly sensible.  Being amicable is definitely to be preferred over fights over minutiae:

• the paradox of spending the time of childhood bickering over parenting time; or
• swallowing up in court costs more than the difference between you.

But the trouble with reducing professional guidance to what can be fitted in large letters on the side of a bus is that it carries a whole lot of risk that people start to think that separating out years of integration is simple, when in fact it is nuanced, complex, individual.

Where “make it amicable” becomes the watch-word for a solution, it risks being ‘open season’ against those who have a sense that they are being unsupported, whilst:

• Their children are being sold short
• Pensions are being left out of the reckoning
• Assets are being valued on assumptions
• Somewhere along the way, the goals of respect and independence went to the wall.

In short they are required to trust the very person who ended their marriage to guide them on the terms on which everything is now settled up, because they must have an amicable divorce.

The thing is that some people just don’t think their spouses are worthy or entitled to anything much.  It is some people’s natural reaction to the fracture at the end of a relationship.  Society may not agree and just being amicable about it is not the first principle for ensuring the generation of great and fair outcomes.

If you gave me only 3 words, I would be much more comfortable with the Clash from the 1980’s, whose slogan was “know your rights”, because:

• Knowing your rights means having that anchor of entitlement against which you may be able to talk through your options
• Knowing your rights means that you have that sense of what your society says are your – and your children’s – entitlements to safety and to provision
• It probably means seeing a lawyer – perhaps just once and (if the situation is simple enough and your briefing good enough) perhaps just for 90 minutes or so.  You will not know it all at the end, but you will at least have a buttress against the only solution on the table that you may otherwise feel you should take for the sake of being amicable.

Or you could just stick with watching the buses and run with something that looks promising “Just Do It” … “Lift and Separate” … “Have it your way” … “Every Little Helps”?

Personally, whilst I would encourage being amicable as in “friendly”, I would shy away from being “without disagreement or dispute”* if it were at the expense of fairness.

*Oxford English Dictionary definition of amicable.

FAQs

Can I have an amicable divorce with a lawyer involved?

Yes.  At the heart of FLiP’s values is our commitment to working in partnership with you.  This means that your goals are our goals and we will help you to select the best process to achieve them, whilst providing first rate legal guidance and clarity around your rights and responsibilities. Amicable divorce process options include Collaborative Divorce, One Couple, One Lawyer, and Family Mediation.  We can also support you with divorce consultancy, which can help you to identify and process the emotional triggers that can sometimes hinder the ability to remain amicable in divorce or separation.

If “fairness” is a priority for you, the independent findings of the Nuffield Foundation’s 2023 Fair Shares Report, found that divorcees who used a lawyer were more likely to understand their rights, know about assets and to get fairer outcomes.

What is Collaborative Divorce?

The collaborative approach is one in which you and your partner, and lawyers for both of you, commit to resolving the matters between you without involving the Court (other than to deal with the legal formalities of the divorce and to approve the financial settlement you reach). This is also referred to as collaborative practice and can be a good option for couples seeking a fair and amicable divorce. It is the “no Court commitment” which for many offers the prospect of delivering a solution for the long-term benefit of you and your family.  You can learn more about collaborative divorce here: flip.co.uk/collaborative-practice

What is One Couple, One Lawyer?

At Family Law in Partnership, we offer the FLiP Together process, in which you and your former partner both appoint FLiP to advise you and help you to find an agreed outcome. The process has similarities to mediation but with the benefit of specific legal advice, which can help couples seeking an amicable divorce to ensure they achieve a fair outcome. We also draw up the agreed order and file it at court.  At FLiP we have handled some of the most complex and high value One Couple, One Lawyer cases.  You can read more about whether FLiP Together is suitable for you here: flip.co.uk/flip-together-one-couple-one-lawyer

What is Family Mediation?

Family mediation creates a safe space to help you reach agreement with the support of trained family mediators.  It is a voluntary process which the Courts actively encourage. You and your partner meet with a neutral mediator or mediators to discuss the issues between you.  The family mediator encourages dialogue, helping to clarify issues, explore options and test which will work in practice. If firm proposals are reached, these are recorded in a document which, although not legally binding, can be made into a legally binding agreement if you wish.  Family mediation is a flexible process and you can be supported by other relevant professionals to help you reach an agreement that feels fair to both of you. You can learn more about our mediation offering here: flip.co.uk/family-mediation

What is Divorce Consultancy?

Divorce and separation are notoriously difficult to navigate emotionally. That’s why we have in-house divorce consultants and relationship therapists who are highly experienced and clinically trained to support you before, during and after separation.  They offer a place to reflect on relationship issues in a confidential and stigma-free way. Our specialists have a depth and breadth of experience in helping individuals and couples to improve their relationships and move forward amicably, whether they are together, separating or separated.  You needn’t tackle this alone. Navigate every turn with us, in partnership.  You can learn more about divorce consultancy here: flip.co.uk/divorce-consultancy