Rethinking no fault divorce. Or thinking about blame and forgiveness?

In 1975 Australians decided to move away from the bad old days when divorce was all about whose fault it was.
Back in those days, one spouse or the other had to be guilty of adultery, cruelty or neglect, before a divorce could be granted.
For the couple involved, this was painful, insulting, embarrassing and sometimes just ludicrous. For the trashy newspapers, for TV, movies and story writing, tales from the divorce courts generated lots of material.

It’s hard to imagine now, only 43 years on, that private detectives made a living taking photos of what they saw peeking through windows, and snooping around for lipstick on collars, hotel receipts, secret bank accounts and houses, and sometimes the existence of a second crop of children.

This all sounds cinematic to us now, but there were real kickers delivered by the law in those days. Most horribly, children were used as weapons to punish the “guilty” party, by being removed from them, sometimes literally kicking and screaming in the precincts of the Court. To this day, the Supreme Court of Victoria has photos of kids with their little suitcases being dragged away from a distressed parent, usually a mother. Property orders also reflected fault, which made no sense at all when what was needed were homes and incomes for two households. These were not good times for families, even if one spouse had the satisfaction of their hurt being publicly vindicated.

To be clear, we never want the clock turned back to these attitudes. We don’t need the law to get involved in the personal dynamics of divorce. But increasingly, I wonder if the insistence that the law and lawyers not talk about the place of blame, hurt, fault and guilt is entirely a good thing. I’m not suggesting that divorce settlements exact a price from either spouse based on conduct or perceived conduct. But I do wonder if conversations about relationships and their end or transition, should be structured into all settlement talks or litigation, not just in collaborative work.

You may ask, “Why would we do that”? My experience tells me that to acknowledge and respond to the human experience of separation is important. In not responding to the emotional fall out of separation, “the system” denies people’s reality, but still demands of them that they make agreements or accept court orders as though their emotional experience has been resolved.

Many couples and individuals connect with counselling and therapeutic support when relationships are challenged or when they end. But many more do not, and it’s not surprising that for some of these people the path to the practical decisions they need to make is much harder as a result.
Some of the saddest conversations I’ve had with clients are with people whose spouse has refused to talk about the end of the relationship, or who haven’t felt able to ask for that conversation, and are absolutely stuck in not knowing how they ended up in my office. It seems unnecessary for either or both spouses to have this pain added to their separation.
Sometimes it’s nearly impossible for ex-spouses to co-operate, co-exist as parents or two people in the same satellite, when they’ve had no chance to talk through the end of their relationship, or to get to any real perspective on it, let alone accept their new situation.

My colleague Dr Tina Sinclair points out that this work offers the opportunity not only for understanding about what happened in the relationship, but for people to develop insights into themselves, not just their former partner. It’s also important to allow people to benefit from the opportunity to seek education about avoiding the same mistakes in future. We know that divorce rates are higher for second and subsequent marriages and relationships, which raises the question about learning from the past, and why that often doesn’t happen.

One of the many great things about working with psychologists on collaborative teams, is the opportunity it offers to couples to look at the question of how they got to where they are. This is consistent with the view of collaborative practitioners in the teams I work with, that divorce is an emotional crisis long before it is a legal event. If divorce was actually a legal event, legal settlements would be a cure. They are not.

Talking with the collaborative psychologist/family consultant isn’t offered as a cure either, but in acknowledgment, and as a step towards healing. Collaboration creates a space for these conversations and the time to process them, rather than insisting that the time to settle is when one spouse says so.

One day the legal system will take its hands off separating families, I hope. But until it does so, it would be both kind and sensible for the law to make it normal for people to get answers for themselves about the end of their relationship. In Australia, parents are mandated to talk to each other about parenting, outside the court system. End of relationship conversations need to acknowledge individual needs and experiences. They probably can’t be mandatory, but they can be normal. Surely?