Happily never after: how to have a 'good divorce'

Gwyneth Paltrow and Chris Martin’s decision to consciously uncouple hopes to prove that splitting up doesn’t have to mean a hostile courtroom showdown and the lasting stigma of a broken home. So how is London, the divorce capital of the world where settlements regularly run into seven figures, adapting to the change? Hermione Eyre asks the experts

Hermione Eyre

10 April 2014

A change is coming. It’s been a long time coming, and many families have suffered as a consequence, but with new attitudes and new transparency, we are reimagining what it means to get divorced. Or rather, to consciously uncouple.

Where did Gwyneth Paltrow and Chris Martin find that magnificently benign euphemism? The American relationship therapist Katherine Woodward Thomas has done more than anyone to popularise the phrase, although she doesn’t claim credit for inventing it. ‘It’s all around us,’ she told me. ‘This is an idea whose time has come.’ Since 2011 she has been holding online teleseminars in how to have a good divorce or, as she calls it, ‘the art of conscious completion’. Meanwhile, here in London, currently the divorce capital of the world — and likely to remain so after a recent survey of 15 other jurisdictions found English courts granted the largest payouts to spouses — there is a fierce battle over how we should do divorce differently, to minimise pain for all concerned.

‘Language is powerful,’ Woodward Thomas ex-plained to me over Skype from LA in a gentle voice. ‘Let’s choose our words carefully. “Ex” is an angry prefix. It sounds like “axe”. I prefer “former”. My former sister-in-law is still my sister, but she’s now my sister-out-of-law. Let’s call it an “expanded” family, not a “broken” family. And my former husband? I call him my “was-band”.’

She’s laughing, but she’s sincere about the need for change: ‘My parents had a hateful divorce. Like many people of my generation I know first-hand what that’s like. I struggled to find a sense of self in my teens and early adulthood.’ This is exactly the outcome that parents such as Paltrow and Martin wish to avoid, and Woodward Thomas helps couples like them understand the deeper, often unconscious motivations that lie behind going to court.

‘A struggle over money seems rational, but often it isn’t. It’s the expression of rage. Having a long wrangle in court can actually be a way of staying bonded with the person you can’t bear to lose. There can be a lot of self-deception in the process. People go into court expecting the judge to be a therapist, that he or she is going to put things right. When this doesn’t happen they feel double beat.’

Woodward Thomas advises avoiding court action if possible: ‘I ask that you do not pick up the phone and instruct your lawyer to pursue more money. Instead, you press pause. Go to the gym, breathe, take time out. You need to use that intense, hot energy to catalyse positive change in your life. It’s a new beginning and you want to seize that. You’re broken open — the structures of your life are wide open —everything is up for grabs.’

It’s touchy-feely stuff, but we need it. According to a new study of 1,000 divorced UK couples by law firm Slater & Gordon, 46 per cent felt that others were ‘judging them every day’ because their marriages had failed. A further 33 per cent said that they had no contact whatsoever with their former spouses, while 28 per cent of mothers reported that, after the divorce, their children weren’t as close to their fathers. The stigma and hurt are still monumental, and some say lawyers are profiteering from the process.

Chris Grayling, the Justice Secretary, told the Standard in an interview last month, ‘There’s nothing worse than a prolonged, expensive divorce case where the only winners are the lawyers.’ In the same vein, Mr Justice Holman criticised the £1.6m legal fees incurred by one divorcing couple as ‘eye-watering’ and ‘mind-boggling’. The former Miss Malaysia Pauline Chai and her husband of 44 years, Malaysian retail tycoon Khoo Kay Peng, have spent this much money and yet they have still not even agreed in which country their divorce hearing should be held. Ayesha Vardag, the top London lawyer with premises overlooking St Paul’s, represents the wife in this case. Speaking over the phone, she defended her fees as proportionate, since Ms Chai is pursing £500m. ‘And we obtained an award of £170,000 for seven weeks [maintenance and legal fees], which should put it into perspective.’

Rupi Rai, a senior solicitor at Slater & Gordon, says ‘a court is a whirlwind, it’s emotive and people get sucked into it. Divorce costs can run away. With children in the courts there are CAFCASS (Children and Family Court Advisory and Support Service) officers and they can be very good at negotiating settlements for children. We don’t have any financial officers to try to regulate that side of court, but it might help.’ She also believes that people entering into the process are given a false sense of what they might obtain, and she has written a book, Family Law Made Simple, in order to help people know their rights. ‘You can’t sugar-coat advice as some do. I take my job advising people very seriously. You have to be pretty firm about not building up their expectations. Many people come in thinking they have rights due to living together or as common-law spouses and I have to tell them: you’ve got no rights whatsoever.’

Some believe mediation is the answer. Resolution, the family law body with 6,500 members, is a big supporter of mediation, which means both parties sitting down together with a trained professional to work out the best solution. Since April 2011 it has been enshrined in law as necessary for every divorce case (except those ineligible on the grounds of abuse or complicated finances) and court proceedings cannot begin without a mediator first signing off a case.

I’m a huge advocate of mediation in cases where children are involved,’ says Rai, a Resolution member. ‘Mediation often works so much better than going straight to court where both parties can become very entrenched.’ On the minus side, both mediation and collaborative divorce (where both parties commit to not going to court) can add to the cost of divorce, because if they fail, new professionals need to be hired to start all over again.

‘I don’t find mediation is helpful for a lot of couples who’ve gone so far as to use solicitors,’ Vardag told me. ‘It’s great for couples who have transparency and are approaching it in a fair manner. But where there’s a lack of trust, it can waste a lot of time and money. I think there’s a role for mediation, but I don’t see it as the future of family law. Prenuptial agreements, on the other hand, if agreed in an informed way while things are good between a couple, can really help avoid grisly heartache.’

She is set to marry for a second time in June and she is most definitely having a prenup herself, describing it in her blog as the stitch in time that ‘saves nine, or indeed 99, in the fees on a dispute’. She invokes Bleak House’s Tom Jarndyce, saying, ‘do anything, give up anything’ to avoid being dragged through the courts.

Vardag won a triumphant landmark case in 2010 when she represented the German heiress Katrin Radmacher in the Supreme Court, which upheld their prenuptial agreement, defending her fortune from her estranged husband. I sat in on the case for a day, watching while these two people who used to be in love sat stonefaced, refusing to look at one another. In the portion of the trial I witnessed it was being argued that the prenuptial agreement was not binding as Radmacher’s former husband had not realised the extent of his future wife’s wealth. Her inconspicuous accommodation was debated — I seem to remember that the shabbiness of her light fittings was laboured as a point. It was a very long way from conscious uncoupling.

But the outcome in favour of the prenuptial agreement was good news for divorce in this country. Vardag has become a star of the profession, and prenuptial agreements are becoming big business.

‘I used to find that about five per cent of my clients were looking for prenuptial agreements,’ says Rai. ‘Now it’s about 25 per cent. But there are still misconceptions flying about, and we need firmer guidance that these are going to be binding. Yesterday a couple came to me two days before their wedding. It’s too late by then to make a legally binding agreement because a judge would view that as undue pressure. So we agreed a post-nuptial agreement signed three weeks after the honeymoon — that’s plain sailing.’ If the marriage lasts that long, of course, says a cynical voice in my head. It’s going to take effort to realign our thinking and our cultural expectations so that we recognise that these are good ways of protecting a marriage, rather than acts of bad faith.

Vardag may be known as the diva of divorce, but she says she has also saved marriages in her time. ‘A husband came to me saying he felt he had to have a divorce because his wife had been unfaithful and he didn’t want to keep building up his fortune in case she walked away with it. I was able to broker a post-nuptial agreement, which reflected where the marriage was and where it might be heading — and at the last count that marriage was still going strong.’ Conscious recoupling, as practised by a divorce lawyer: who knew?

Happily never after: how to have a 'good divorce'

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