Divorce should not be an unfair legal process. It ought to be a process of un-coupling and physical separation with among others, a legal component.
What happens to us when we get divorced? We feel sad, disappointed, disillusioned, angry and afraid of what lies ahead. Our biggest concerns are about being able to afford a divorce and we feel anxious about losing everyone we hold dear and everything we regard as valuable. We have generations of people who cannot get over the devastation of their divorce and are unable to recover from the impoverished position in which they ended up as a result.
Everything I described above are feelings (emotions) based on our worst fears and that’s where our focus ought to be when getting divorced – not to exploit them but rather to address them with compassion.
Let’s consider this for a moment: If I decide to take the traditional legal route to divorce, I start by accusing my spouse of some things and make my own subjective claims to validate my accusations. Then, I challenge my partner to either defend himself or admit that he was wrong, in court. Who in this world is not going to get angry and defend themselves vehemently? So in defence, he accuses me of certain things and adds his own subjective claims to validate his accusations.
We declare war. Litigation…
The only way to end any war is either for one party to annihilate, ruin or kill the opponent or for both parties to declare a ceasefire and agree to negotiate reasonable terms that both would be willing and able to adhere to. The cost of war is tremendous and is never without casualties and great loss on both sides.
Litigation is acrimonious by nature, because it is based on the principle of arguing and winning disputes at all cost. Mediation, however, is based on the principle of evaluating and reconciling disputes in the best interest of all parties.
We know what is best for ourselves. Therefore, the starting point ought to be mediation, where the needs (and fears) of everyone involved or affected by the divorce are determined first and foremost. This way, we can maintain control of the situation ourselves and manage it accordingly in a collaborative process. There is no need to hand everything over to third parties who will have to make decisions and take actions about me and my family’s life, without my participation or consent.
When analysing those needs, it becomes apparent what advice, support and services are required for our unique situation. Someone might be in need of therapy or emotional support to come to terms with the situation or parental guidance to learn how to support children through these life-changing events. We might require financial advice about re-structuring our assets and liabilities to secure our acquired wealth and survive on a daily basis. Input to ensure that our ideas and plans are legally compliant is also necessary. A variety of services will be required to deal with the immediate practical aspects of relocation, splitting households, sharing responsibilities, co-parenting where children are involved etc.
It becomes a learning curve as we discover each other’s boundaries and expectations. We consult and collaborate with various experts, as we negotiate the best possible scenario for the way forward.
All that is generally needed to formalise a divorce, is a settlement agreement and a parenting plan if we have children. Once the relevant documents are in the correct legal format, they may be submitted to court for approval and then its official.
However, the divorce process is not finished until all the terms of the settlement agreement have been executed to the satisfaction of all parties involved. The experts who were called upon during the collaborative process will continue to be involved until everything is finalised. Only then, have the needs of everyone involved in the divorce been fully met and fear will subside.
Although we’ve had to make several changes to our lifestyle and circumstances, we feel happy, content, secure and excited about the future.
Fair Divorce is not a process controlled by the legal system – it is the Ownership and Collaborative Management of the dissolution of a marriage, by the Parties themselves.
This post was originally published on FairDivorce.co.za and is republished here with permission.
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