Separation and divorce: when attack isn’t the best form of defence

For many individuals starting divorce or children related proceedings, it is no doubt, at times, an intimidating experience.  Clients are thrown into a world of legal jargon, where the court has wide powers to impose a decision on them that can have far reaching consequences on their life.  Given this it is not surprising that some clients enter fight or flight mode.  For those who adopt “fight”, taking an aggressive stance can feel like the safest approach, particularly if the other party is adopting an aggressive approach too.  Seeking out a solicitor with a “Rottweiler approach” can feel like the best way to protect their interests.  Whilst there can be occasions where a robust approach is justifiable and necessary, it is not necessarily a solution to long term litigation or negotiations.

Sending a cutting, aggressive response to a difficult letter or in response to a trying situation can, for some, feel good in the moment.  We are all human, and there can be a feeling of satisfaction at having your say.  The satisfaction, however, is often short lived.  It can very easily descend into tit for tat correspondence and a cycle of bitterness can ensue with legal fees increasing as a result; instructions need to be taken on lengthy correspondence; it needs to be reviewed and then discussed with the client; a draft response needs to be considered…that short term feeling of satisfaction can see an increase in legal costs..  Where the duration of court proceedings is accompanied by lengthy, back and forth correspondence, the costs can start to rise. The prospects of negotiations and compromise can diminish, as the case is driven to a final hearing.

Legal costs cannot be put back into the matrimonial pot, which will inevitably diminish as solicitors’ fees are paid.  Cost orders can be sought, but the money has been spent; all a costs order does is move a debt from one side to the other.  Higher legal costs can be the difference between achieving your preferred outcome in the proceedings.  For example, in some cases, one party may wish to retain the family home.  If the other resources in the case (i.e. cash savings and investments) have been exhausted on legal fees, the family home may be the only resource from which to meet both parties’ needs, and a sale order may prove to be inevitable.

In the 2020 case of RM v TM [2020] EWFC 21 Mr Robert Peel QC, sitting as a Deputy High Court Judge, despaired of the parties’ approach to litigation, commenting “This self-defeating litigation is now over. It is scarcely credible that at the end of it all, they emerge with about £5,000 each of liquid assets, having incurred nearly £600,000 of costs, but such is the reality. There may be worse examples of disproportionate and ill-judged litigation, but none spring readily to mind.”

There can be a time and a place for a firmer approach, but it should be used sparingly and when necessary. Before considering putting pen to paper (or fingers to keys), consider where the correspondence will take your case; will it move matters forward and will it make a positive difference to your case?  Sometimes, a robust response needs to be sent, but taking the higher ground can have many benefits both in terms of costs and tactics.  An unnecessarily aggressive approach rarely finds favour with judges.  Taking a measured approach can have cost benefits, benefits to your emotional wellbeing (combative correspondence can take its toll) and have tactical advantages.  Calm and measured does not mean weak.  Indeed, if you have a difficult relationship with your ex, moving forward with your life positively will give you freedom from negative emotional ties far more quickly than snapping back ever will.  Often, the correspondence may not even be seen by the judge.

That being said, we are but human and taking the higher ground, particularly when faced with what can feel like personal attacks can be difficult to maintain long term, even for the most self-assured individual.

There are things that you can do to take that higher ground:

• Imagine yourself looking back in 1 year/5 years’ time.  Ask yourself how you want to feel when you look back.  How do you want to feel about what you do and say now?  What do you want your relationship with your ex to look like?  This is especially important if you have children.  Before you do or say anything now, ask yourself whether it will take you nearer to, or further away from, that vision.
• Stop, breathe, think, act – when you feel your emotions rising, pause.  Take a deep breath.  Getting oxygen into your brain will help to calm the fight, flight, freeze response.  Remember that you have a choice about how you respond, what you say, how you act.
• Have an exit line prepared, for those moments when you need a break, to gather your thoughts.  Practice it in front of a mirror, so that when you actually have to use it, you can remember what to say.  For example, “I need a 5 minute break so I am going to walk away for a moment”, or “I need to take some advice on this, and I will get back to you once I have done that”.

When considering the approach you wish your solicitor to take on your behalf, thinking past the conclusion of their involvement is important.  Your life will continue after the legal dispute has ended, and where there are children involved, your relationship with your ex can too.  Even with difficult cases, it is possible to separate or divorce well.  Knowing you conducted matters with respect and dignity can be valuable.

Not only that, holding onto anger, bitterness or resentment, and using them to fuel your legal journey through your divorce can be damaging to YOU.  Anger might give you energy, but it can also be a fog that prevents you seeing the picture clearly, and it can mean that your priorities become skewed.

There is an old analogy that holding onto anger is like drinking poison and expecting someone else to die, or that it is like holding hot coals in your hand and expecting not to get burnt.  It can eat you up inside, and keep you tied to old feelings and old relationships that no longer serve you.  It can prevent you from creating a new life that brings you joy.  There is, after all, life after divorce or separation.