Reports from the audit trail ... Number 4

In May 2009, as part of the Access to Justice Audit, LAG hosted an event nicknamed the ‘divorce law summit’. It was a roundtable discussion involving a dozen people - half were ‘ordinary people’ and half were divorce ‘professionals’, including representatives from the family lawyers group Resolution, a barrister, a mediator and even a self-styled ‘passion coach’.

The session was chaired by Suzy Miller, the founder of the Starting Over Show, who organised Britain’s first divorce fair at a Brighton hotel earlier in the year. The event (which aimed to ‘help people bounce back from relationship break ups and life crises’) made Radio 4’s Thought for the Day and every newspaper in the UK (as well as the Timaru Herald in New Zealand and the Lebanon Daily News).

The idea for the LAG seminar was, with over 140,000 UK couples divorcing each year, to talk to people about a legal process that all too often leaves ex-spouses aggrieved, unhappy and considerably poorer.

When LAG invited Resolution there were some (understandable) concerns that lawyers would become the scapegoats for people’s wider dissatisfaction with the system. As an icebreaker, Suzy asked: ‘Is there ever such a thing as a "healthy divorce"’? It was interesting that participants’ first response wasn’t to engage in a bout of lawyer-bashing.

‘I think there’s such a thing as “a healthy divorce” but I don’t think it has anything to do with the law. It is all down to the people and their attitude towards it,’ began Lesley, a writer who has been ‘divorced twice and married three times … the last time we never got round to it’. Next up was Andrew. ‘I waited until I was 42 years old before I got married for the first time and then after I’d been in a relationship for eight years,’ he recounted. ‘We made it through a grand total of 18 months.’ He agreed there was ‘such a thing as a healthy divorce - probably achievable in direct proportion to the health of one’s relationship with oneself and one’s partner’. Fiona thought it was ‘down to emotional intelligence. But, frankly, that tends to drop down the list of priorities.’ During her divorce she found that the father of her three children (all under 12 years old) had been previously married. ‘That was a surprise,’ she added with understatement.

Next Suzy asked: ‘Does the legal framework increase acrimony?’ 'Yes', replied one of the lawyers, Nicholas Longford, chair of Resolution. ‘One of the problems is having a fault-based system.’ He offered a solicitor’s perspective on the uncomfortable experience of having to explain to clients that anyone who did not want to wait two years or more for a divorce has to prove ‘unreasonable behaviour’ or adultery on the part of his/her husband or wife. This ‘blame culture’ infects the process from the start, he argued.

Andrew described the deadening impact of the legal process on the relationship with his ex. He is a former social worker in child protection and has spent ‘decades instructing lawyers and barristers’. ‘It was an extreme shock to be on the receiving end, like wrestling a cloud,’ he said. ‘I went down the path of least resistance, waited two years and acquiesced for the most part.’

There was agreement over the damaging absence of reliable information in the public domain to help ex-couples navigate divorce. It was argued that this information vacuum meant couples came to rely on lawyers as ‘gatekeepers’ to the process. ‘A lot of people go to their high street lawyer thinking they’re going to take care of everything – not realising that the lawyer should only be looking out for the legal side,’ said Jane Robey, chief executive of National Family Mediation. She reckoned that ‘some 80 per cent of the divorcing population’ go straight to a lawyer, often latching on to them ‘as a white knight’, despite legal aid having been available for mediation for ten years. ‘In mediation you can deal with all the emotions as well as the practicalities,’ she said. ‘It should be mediation first with a lawyer coming along later to look after the respective interests of individuals.’

Suzy also asked if there was a two-tier system with a superior level of service available for those private-paying, well-heeled clients and a lesser service for the legally-aided, full-time mums. David Emmerson of Resolution pointed out the contrast between the City divorce lawyer charging £400 an hour and the legal aid firm making £50 an hour.

Nicholas Longford insisted that his firm tried to give legally-aided clients the same level of service (‘they get more work done than paid for under the scheme’). ‘There’s a difficulty in that the government and the Legal Services Commission espouse a one-tier system verbally,’ he said. But the way that they ‘handle it, pay the lawyers and try to convince firms that the lowest level staff should be doing the work’ creates ‘a two-tier service’.