Why Separating Informally May Not Suit You Well: The Soft Separation

Family lawyers’ greatest problems in offering their services lies in the perception about divorce lawyers: we are seen as selfish predators focused on our bottom line rather than on good outcomes for parents.  At the last count, FLiP lawyers have a combined total of about 750 years’ of focusing on good outcomes for separating families, and yet this image remains.

And that is not really surprising.  This is not only because the loudest stories in our news are always the grimmest. There are always grim stories amongst the hundreds of thousands of people separating every year. It is hardly surprising. We have a discretionary system. It does not always work well.  There will be outliers with sad stories to tell. But unlike other systems it is only our failures that are most visible: all the cases where deals cannot be agreed tend to end up in court. Cases that settle are very much private. Increasingly cases that do not settle are very visibly on the public stage.  Cases that have horrible outcomes will usually generate one or more people populating the internet with their experiences of woe and outrage. Their sibling separators who got through it well are quietly getting on with their lives and so are not providing balance to the view of family law that comes from the grim court case.

So it is little wonder that so many people think that family lawyers are in it for themselves and they ignore the fact that we perform a service and can be a force for good: just like the mechanic who provides the MOT on your car, we have a function which is to ensure your safer future.  So often we come across this same phenomenon when we meet our clients for the first time.  People assume that either you “play nice” and “wing it”, expecting to have a whole range of financial risks and losses or you go to lawyers who are only capable of negotiations full of fury and expense.

And that is why we read with a sense of some anxiety about the reluctance of individuals to wrap up their arrangement safely.  These people are likely to be the ones forming our most intractable cases in a year or two. If you like the court-survivors of tomorrow are very often the soft-separators of today.

Because you are “sort of independent but sort of still underwriting each others lives for better for worse” the law is hazy about the impacts when something unexpected comes along. Dale Vince and Kathleen Wyatt lived a carefree lifestyle and separated after a few years.  Twenty years later when Dale was worth an estimated £109m founded on windfarms, Kathleen approached the court for a capital sum to help her with her very real needs.  But why would it be fair that Kathleen should be supported from resources created many years after their separation?

Reading the accounts in the Telegraph (here) it is difficult to avoid the view that a significant element in the choice to soft-separate is the avoidance of a process which everyone is sure will cost vast amounts and generate impossible levels of anger.  But that assumption is based on a misunderstanding of the usual process.  99% of couples will take advice and work out sensible outcomes.  Indeed those who might soft-separate are often the ones with very high level of co-operation so it is very likely indeed that costs will be contained, progress will be fast and outcomes – with the input of a family law professional – will be good.

All families are different – and the range of solutions for those families is very wide.  For some this sort of living in the grey zone will work very well.  For others it may work well for a shorter period as a sort of interim arrangement.  But for most who elect to keep things informal this is avoidance pure and simple and it comes with risk:

• there is a lack of clarity for children who do not really know where they stand
• there is a lack of clarity between the couple who do not know the rules about dating new partners or the level of financial freedom they enjoy and are bewildered by the later levels of fury their actions generate
• Almost always things become more complicated over time – jobs change inheritances come and all too often a couple’s expectations about the implications of those changes do not align and they generate the very conflict that they were hoping to avoid
• And sadly if one member of the couple dies, things become intractably difficult to resolve.