A new spin on divorce terms

Kanisa George

Very few things in life could be as gruelling and soul-sucking as an acrimonious divorce. When an affair of the heart goes kaput, the parties involved frequently experience extreme emotional turmoil caused by the breakdown of their relationship.

Even the very process of getting a divorce can be somewhat off-putting, for, at least in our jurisdiction, with the exception of separation and desertion, an application for divorce requires us to play the blame game. Unlike in the US, "irreconcilable differences" is not a ground upon which an application for divorce could be made – which means that in Trinidad and Tobago at least one of the parties to the proceeding has to prove that their partner is to blame for the breakdown of the relationship. As far as blame goes, there is a new trend that suggests that some couples aren't in the business of blaming and would prefer to end this chapter of their life without unnecessary conflict.

Historically, the UK employed a divorce system based significantly on fault, similar to our current structure. Fortunately, over the last decade or so, there has been a shift in attitudes toward divorce. For example, one survey revealed that couples, particularly when basing their divorce on unreasonable behaviour, neither really want to blame the other. Instead, they tried to rely on allegations that were as mild and least upsetting as possible but still strong enough to get over the unreasonable behaviour hurdle.

Behavioural psychologists believe this, and other notable changes in attitudes towards divorce, has reinvented the concept of divorce, inspiring a wave of new perspectives and out-of-the-box divorce conditions and clauses. These new approaches focus not on the broad brush position that some believe divorce laws apply, but seek to make it specific to the needs of each family unit. Recently, the UK introduced what many regarded as its long overdue blame-free divorce legislation. The Divorce, Dissolution and Separation Act (2020) which came into effect in 2022, allows unhappy couples in England and Wales to end their marriages without using fault as the basis for the application. According to a statement by the government at the time, these changes were implemented to help "separating couples" focus on key practical decisions involving, for example, their children or finances. One interesting feature of the new enactment is the option for a couple to apply for a divorce jointly.

Although opponents raise concerns that the changes would make divorce too easy to obtain and undermine the sanctity of marriage, supporters believe that this modern take on divorce eradicates the unnecessary finger-pointing and acrimony at a time when emotions are already running high and spare children from witnessing their parents mudslinging. Several other trends have evolved over the last few years geared at eradicating what can only be described as a sometimes cumbersome, emotionally taxing system.

One trend of particular interest is the use of divorce hotels that double as a breakup "mini-break "and a non-acrimonious way to bring a marriage to an end. Currently, in both the Netherlands and New York, divorce hotels offers soon-to-be-former couples a space to discuss issues and finalise their divorce over a weekend away from external parties like partisan in-laws or friends. The stay includes a Saturday morning sit down with a specially trained mediator and talks throughout the weekend to address finances and other issues. Details of custody do not form part of the proceedings, so a parenting plan must be in place for couples with children to qualify.

Naturally, divorce can be an emotional rollercoaster. And unfortunately, some of us are ill-equipped to manage potential fallout. As a result, in some jurisdictions, the parties to a divorce are required by law to undertake mandatory divorce education. These programmes are geared towards helping parents become aware of their separation's impact on their children and ensuring very few disputes throughout the process. Interestingly, some divorce agreements require a fixed waiting period before either party can enter a new relationship. Restrictions can also be placed on parties introducing children to new partners unless the parties are engaged.

Perhaps the most inventive divorce arrangement of them all is the bird-nesting parenting clause contained in numerous divorce settlements in the US and recently popularised in the UK. It follows the principle that the family home is the nest, and instead of the children being forced to move around between parents, children remain in the home while each parent takes it, in turn, to move in for a few days every week, while the other one stays at another location. Many researchers highly endorse this model, as it allows children to maintain stability and continuity during a disruptive period in their lives. Research into this model also reveals that, in some cases, this approach is better for the family's financial needs and emotional well-being.

Divorce is rarely an easy situation. Yet, from all appearances, our ever-changing lifestyles might have evolved how we approach the discontinuation of a marriage. But can the same be said about our laws? Have divorce laws shape-shifted to keep up with our evolution, or does it continue unknowingly to perpetuate an air of acrimony?