Retributive break-up doesn’t help anyone, says John Stirling
Gwyneth Paltrow and Chris Martin’s recent public “conscious uncoupling” asks whether there can be a good divorce. For most couples the answer is no, but perhaps lawyers could do more to make the process better.
Marriage is designed to aid the nurture of children, so a good divorce should meet their needs. Physical needs are relatively clear; emotional and educational ones far less so.
So, when is it so bad that for the good of the children you should separate? Is contact with both parents to be preferred? There’s lots of research.
Constant stress that increases adrenaline and cortisol release is bad for us and particularly bad for children. It restricts the development of neural branches, which makes learning more difficult and, ultimately, affects mood and skews the ability to regulate the responses to pleasure and reward – hence its link to addiction and impaired behavioural and emotional development, high blood pressure, cardiovascular disease and diabetes.
The good news is that ordinary stress – getting to school on time, being caught in the rain – doesn’t have this effect, at least not in isolation. What the books call “good stress”, mental stimulation, even difficult learning, counteract the damage as does exercise, particularly team sport.
For adults, bad stress is a death, losing one’s job, bullying and violence. For children it’s those things, particularly severe punishments and poor parenting. Poor parenting lies in a lack of time spent, inconsistent boundary setting, physical neglect and, especially at the beginning of life, the absence of loving physical contact and stimulation.
No surprise, then, that there is lots of evidence that using children as pawns in a game of retribution between parents is damaging for them.
It’s often said that couples in conflict have a choice between winning and being happy. Their children, it seems, can neither win nor be happy.
Visible parental conflict is damaging. Is contact with both parents preferable?
Article 9 of the UN Convention on the Rights of the Child asserts that regular contact with both parents is best “except if it is contrary to the child’s best interests”.
I found no objective scale to weigh the pros and cons. It’s a value judgment upon which people may reasonably differ.
I was surprised, therefore, by one recurrent theme. Where there is unreasonable and implacable hostility to contact with one parent from the other, the child should live with that other even if that meant a change.
Slater and Gordon published research in March suggesting that the most common reason people stayed in unhappy marriages was because of concerns over children and money.
Two households lose the economy of scale and the care efficiency of one. Acute poverty is certainly bad for all but it’s clear that many vectors bear on a child’s path to emotional maturity.
One of the most powerful is the extent to which parents can hide their disharmony and be consistent with their children. Staying together for the good of the children is a balance between economic benefit and the risk of long term damage from uncontrolled parental disharmony.
Can you bite your tongue and more?
So what’s a good divorce for the parents? An enforceable prenuptial agreement is part of it. If nothing else, a prenup will reduce the cost of wrangling. They don’t assuage the bitterness that many spouses feel but significantly reduce the bad stress suffered by children. Love and hate are very close. A sense of betrayal catalyses one into the other.
My impression is that 60 per cent of divorce practitioners practice retributive divorce, with agent pugilists slugging it out whilst their clients look on, baying for blood.
This style offers the vicarious joy of a victory won through a champion. Personal settling of scores, so common in my experience, is damaging to all. It’s clearly so for children, but also for the couple because keeping hatred fresh is such a waste of energy. A good divorce would adopt a different approach.
The return of trust within the family is vital if children are to thrive and the couple move on. Only then do actions and reactions become predictable again. That’s for the good of all.
Consistency is core to legal professionalism. It can play a big role in the rebuilding of trust. Solicitors can control the style of a negotiation.
Consistency is a given, style is a choice. Both make a big difference to the quality of a divorce.
• John Stirling is a litigation and dispute resolution partner with Gillespie Macandrew www.gillespiemacandrew.co.uk