Marital separation is a process, not an event. It has legal and psychological aspects and involves practical and emotional tasks. The impact is felt rippling out through family and friends. It is crucial for the general wellbeing of society that the process is managed as well as possible.
The legal step of ending a marriage in divorce is of great significance. Paradoxically, it is rarely a matter that requires a significant amount of court time as, by the stage a divorce is granted, in most cases both parties have accepted that the marriage is over. Arrangements for children and financial provision which, if remaining in dispute, are dealt with at the same time as the granting of divorce do require a lot of court time. This can be an emotional and financial drain on the former couple.
The sheriff courts already deal with proceedings for divorce (or dissolution of a civil partnership). The legal framework regulating the consequences of separation sets out to achieve fairness in matters financial and provide for the best interests of children. In both aspects, decisions are informed by a combination of facts and attitudes. Family lawyers fully appreciate this. They have worked to enable separating couples to have a choice of ways of sorting things out - mediation, collaborative family law and negotiation, as well as litigation - and to be able to assist clients to select and use the most appropriate route.
Only a minority of cases require a decision by a judge or sheriff. Even so, it was wise for The Herald leader (September 26) to sound a note of warning about potentially overstretching resources.
The current task for family lawyers is to continue their efforts to enable clients to identify and make good use of the legal process best suited to them. Cases being decided in court should only involve extremes of legal complexity or behaviour. The remaining task is to ensure that, for those cases, the court process is effective.
At present, family actions sit within an adversarial system that can be a satisfactory way of resolving disputes when based on evidence about a specific occurrence in the past. The adversarial process is couched in the language and reality of a contest with winners and losers. Family actions have to take into account not only factual information from the past but also attitudes and future plans which may also require a degree of co-operation, taking into account the views of the young people involved.
In view of these factors, an inquisitorial approach may be more productive. Some might say that an approach such as this exists to an extent in family cases but that is only where individual sheriffs are using the already flexible rules about family cases on an inquisitorial basis. There is no consistency.
The key ingredient for all professionals assisting families through separation is to have knowledge and training to match the needs of the process. This should lead to decisions that will not only be fair but which parties are more likely to perceive as fair.
Anne H Dick, 63 Carlton Place, Glasgow.
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