Legal
The Language Of Divorce Proceedings – Why It Matters
The author of this article argues that the terms used to describe divorce today often add to a sense of aggression and combat, rather than point to solutions.
The following article on divorce law, as it applies in England and Wales, is from Rachel Chisholm, barrister at 4PB. As regular readers will know, divorce law is a regular subject because significant accumulation of wealth can be put under strain and broken up when, for various reasons, marriages end messily. And while this news service deliberately avoids the salacious aspects of such cases, it wants to explore how cases are managed, new developments in law, arbitration and conduct by courts.
As always, the editors don’t necessarily endorse all views of guest writers. To respond, email tom.burroughes@wealthbriefing.com
“It is blindingly obvious that the language we have been using is not appropriate and only goes to stoke the minds of those in a combative mindset, rather than direct them a different way,” president of the Family Division, Sir Andrew McFarlane.
Divorce is a time of crisis. Separation stirs painful and complex
emotions. For some, it may be easier to blame the other or focus
on anger, rather than process their own feelings of loss, fear or
guilt. Thinking and reasoning become very difficult in such a
heightened state of emotion. Couples and families need the
support of the professionals involved along their separation
journey to reframe their approach into something more solution
focused and less harmful (1).
The far-reaching societal risks become clear when looking at the
number of children impacted. Between April 2023 and April 2024,
86,419 children were the subject of court reports by welfare
officers in court proceedings (2). Research is clear that the
quality of interparental relationship, specifically communication
and how parents relate to each other, is a primary influence on
children’s long-term mental health and future life chances.
Long-term parental conflict and acrimonious court proceedings
negatively impact children’s behaviour and how they parent or
relate to others as they grow up (3).
Why choose your words carefully?
As Freud said, “words have magical powers. They can either
bring you the greatest happiness or the deepest despair.” For
separating families, words can bring adversity or they can bring
co-operation and solution-focused thinking. The language of
family separation shapes the mindsets of those involved and
influences their actions and approach.
The Family Solutions Group called for a re-framing of the language used for separation. Their 2022 report Language Matters (4) highlighted how “language for separating families has evolved out of an adversarial legal system: it is accusatory and divisive. It is also potentially harmful, increasing conflict through battle metaphors while parents compete for justice and control of their children.” (5)
All those working with separating couples and families need to be aware of the impact of their use of language: “appropriate language is needed through every part of a family’s journey of separation: at the school gate, with their wider family and friends, in the media, on government websites, with support services and for those who engage with the legal system, throughout the legal process.” (6) The consensus being that there needs to be a shift from “parental rights, towards thriving childhoods following separation” and “away from adversity and battles, towards wellbeing.” (7).
How to achieve that?
The Family Solutions Group recommended using the “five Ps”
(8):
1. Plain English;
2. Personal, using names rather than legal
labels;
3. Proportionate, language proportionate to the
issues;
4. Problem-solving, using constructive
problem-solving rather than battle language;
5. Positive futures, the emphasis not on past
recriminations but on building positive futures.
What can you say then?
The most common phrases to reframe when working
with a client going through separation are:
1. “Custody,” “access,” “residence”: these words are not used within the legal profession and suggest an outdated idea of control or possession. More appropriate language to use would be to refer to where the child lives and that they spend time with their parents;
2. “Parental rights,” “parental entitlement”: the focus needs to shift towards the responsibilities of the parent to a child and it being the child’s right to a safe relationship with both parents;
3. “Primary carer”: the idea of a primary and secondary carer is outdated and suggests a hierarchy that does not exist. A more useful approach would be to use the language of cooperative parenting (9) or of family time spent together;
4. “Sides” “position” “opposition”: a more helpful reframing would be to use the language of perspectives (10) and interests;
5. “Custody battle”: again, military or battle terminology is divisive;
6. “Your ex,” “the husband” “the children”: using people’s names is important in humanising them and remembering that they are individuals with their own feelings and fears;
7. “50/50” “equal care” “shared custody”: a more helpful approach would be to talk about cooperative parenting and thinking about what arrangements would best work for the children rather than thinking about the children as possessions to which the parents are entitled.
Lastly, what does the language of separation have to do
with wealth managers?
As wealth managers, you will undoubtedly have clients who are
going through or have been through a separation. Your client
relationship is based on trust and responsibility. Clients value
your advice and your outlook. For some clients, they may not have
had a good example of parenting or communication growing up.
Change comes from all professionals modelling attitudes and
approaches that foster respectful communication and a
de-escalation of conflict.
Footnotes:
1, Of course, if there are risks of domestic abuse or abuse
of children then appropriate professional support is needed for
those affected and the appropriate language to be used in these
scenarios is not the subject of this article.
2, Cafcass Our Data
3, Family Solutions Group: ‘What about me? Reframing Support for
Families following Parental Separation’ 2020
4, Family Solutions Group: ‘Language Matters A review of language
for separating families’ 2022
5, Ibid
6, Ibid
7, Ibid
8, Ibid
9, Ibid
10, Ibid