The Irish Times
‘BREAKING UP is hard to do. . .” We can all sing along with feeling to the Neil Sedaka song. Separation or divorce is often likened to a bereavement – only worse, some say, because there is not the same sense of closure that a coffin lid brings.
But while we tend to hear about the horror stories, involving personal acts of revenge and gigantic legal bills, couples can and do dismantle their relationships in a civilised manner. And where children are involved, it is, perhaps, the least they can do.
Barrister and family mediator Rachel Fehily believes more people could save themselves time, money and heartache if they were better informed about options and resources before embarking on the painful journey of disengaging as a couple.
She has written a holistic “positive plan” for separation or divorce in Ireland, called Break Up, Don’t Crack Up , that is out this month. It comes not long after the publication of her previous book, Split: True Stories of Relationship Breakdown in Ireland , last November.
As a barrister who went on to specialise in family mediation, did she become disillusioned with the adversarial legal system?
“You begin to notice that the legal system isn’t really solving people’s problems – in all areas of law, not just family law,” she explains. “But it is necessary – there has to be a final arbiter of fact or conflict.”
However, at the pre-legal stage, it is very important that people have other options, says Fehily, who did a one-year course in conflict resolution at UCD and now works solely in mediation.
Intense and articulate, she balances a no-nonsense attitude with compassion for the difficulties humans find themselves in when love grows cold.
“You have a huge duty to your children to resolve things as amicably as possible,” says Fehily, a separated mother of two boys, Harvey (13) and Jack (11). “I feel really strongly about this.”
Couples breaking up tend to link parenting of their children with the division of assets, she explains. “They will say, ‘You are not paying maintenance, so I am not going to let you see our child’, which is so wrong.
“Those two things have to be kept separately and not used as a weapon; the sooner people start to separate those two things in their mind the better.”
Every couple’s separation or divorce is unique to their relationship. “The grounds for battle or conflict fall in different areas for different people. That is why everybody’s conflict resolution mechanism almost needs to be tailor-made for them.”
She would like to see something like the Australian system, where couples have to make a “genuine effort” at mediation to find a solution to their disputes over parenting before going to court, introduced here.
Currently in Ireland, solicitors have to give clients seeking judicial separation or divorce a list of conflict resolution experts. She, and many others working within the legal system, don’t think that’s enough. But the Dolphin House pilot project (see panel, right) seems to be a step in the right direction.
However, when using mediation for issues such as parenting and assets, “it is of utmost importance that people have independent legal advice before they sign up to anything”, says Fehily.
Ask her about the most common mistakes people make when breaking up, and she hardly knows where to start, “there are so many”. She outlines five:
1. Trying to make decisions when they are in huge distress
It is impossible for people to deal with parenting, financial and other long-term issues if emotionally they are not ready. So the first port of call for professional help might be a GP, who can refer you for counselling.
2. Fighting in front of the children
“That is a big mistake,” she stresses. Conflict can sometimes be driven by engaging with the legal process, she acknowledges, but children need to be shielded from this.
3. Automatically going to law and not looking for an alternative
Litigation can be a very long, drawn out and costly process, “and not necessarily give them the solutions they are looking for”, says Fehily.
She advises that it is always in people’s own interests to use peaceful rather than high-conflict means to resolve relationship disputes, such as mediation, counselling or collaborative law – unless there really is no alternative.
4. Neglecting their finances or having an unrealistic view of how their financial situation is going to be resolved
Fehily points out that you are trying to set up two houses, there are children involved and everybody’s living standards are going to be diminished.
“This is a really hard thing for people to get their head around.”
People often think if their ex behaved badly during the marriage, they will do better in court financially.
But Fehily does not believe judges divide assets up on this basis; decisions are based on needs of the family and legal aspects.
“Unless behaviour is abhorrent, I don’t think it is a significant factor,” she says.
5. Failing to move on after the separation agreement is finalised
When people keep revisiting the same conflicts, as if they are on a loop, they are not doing themselves nor their children any good.
They need to go and talk to a professional after a certain period of time if they can’t move on, she suggests.
Not surprisingly, considering the fall-out from messed-up relationships that Fehily encounters in her work, she says people need to think very carefully before they get married – even before they live together.
“I think more people should do pre-marriage courses.”
With increased global mobility, relationships and marriages between people of different nationalities and cultures are becoming much more common, but people need to be aware of the potential pitfalls.
“The big problem is when the relationship breaks down and both parties want to go their separate ways, back to their family and friends, or they want to educate their children in their own language and culture.”
The “nightmare scenario” is where you have married somebody from a country that is not a signatory to the Hague Convention and a child is parentally abducted, she says.
“If you marry somebody and that person’s country is a signatory, it gives you some protection, as that country will enforce custody and access orders made in another signatory country.”
After a break-up, many people, understandably, feel very strongly that they want to go back to their own country.
“It is such a high-conflict decision, that it can be non-negotiable and end up in court and you have to live with the decision that a judge makes,” she says.
“This is why it is so important the legal system gets involved in cases like this. It is almost like the judgment of Solomon, cutting a child in two.
“If your child goes to live in America and you are living in Ireland, that is going to irrevocably change the nature of your relationship with your child forever.”
Break Up, Don’t Crack Up by Rachel Fehily is published by Orpen Press, €14.99
6 steps to get you through break-up
1. I will look after myself.
2. I will put my children first.
3. If possible, I will try alternative dispute resolution.
4. If I have to litigate, I will litigate well.
5. I will not neglect my finances.
6. I will move on to my new life without bitterness and regret.
For more information, see Rachel Fehily’s website, familylawmediator.ie
Together alone; When couples are forced to share a home
Increasingly, couples in relationship difficulties feel they cannot afford to separate during these tough economic times.
“I think it is really dangerous to be forced to live with somebody when you are in a high-conflict situation,” says Rachel Fehily.
“Most murders are domestic – and you wonder how much of it is caused by people who are living in a very high-conflict situation.”
People living like this need to get help. Women’s refuges would be a last resort, she suggests, and the fact that there is no equivalent sanctuary for men is “terrible”.
Relationships Ireland sees many clients in this situation; some attend to find out if the relationship is beyond redemption or if it can be repaired, says counsellor Lisa O’Hara. Others, if they have decided they are no longer a couple, want to see how they can continue to live in the same house.
It is very tricky, “when their internal reality and their external reality is at odds with each other”, says O’Hara, who dedicated a chapter of her recent book, When a Relationship Ends, to this scenario.
Couples need to see where they can draw boundaries within the four walls, starting with the bedroom. “Many couples who are separated will continue to share the same bed,” she explains. “It confuses things a bit.”
If they have children together, they need to look at what stays the same and what’s different. The same applies to their finances. It is almost like the relationship becomes more one of “housemates”.
It is easier to work out if a couple is civilised with each other, keep their children as their main focus and also have a healthy respect for their changed relationship.
However, often the problems that caused the separation in the first place are heightened when they are forced to continue to live together.
Sometimes it is simply not possible, O’Hara adds, and somebody has to move out.
Conflict resolution: Taking the mediation route
More than 260 separating couples have reached agreement on family issues through mediation rather than fighting it out in court, during a year-long pilot project making mediation services available at the District Court complex in Dublin’s Dolphin House.
Tomorrow marks the first anniversary of the project, whereby people going into Dolphin House to lodge an application for custody, access and guardianship are encouraged by courts service staff to consider mediation as an alternative to court. They are directed to the fourth floor from where the Family Mediation Service (FMS) operates, free of charge to all.
If the first party is prepared to try mediation and thinks that the other party might be willing too, the FMS invites the other party in for an information session.
If they both agree to try mediation, they are offered a mediation session at Dolphin House without delay. (If legal advice is required, Legal Aid Board personnel are available on the third floor.)
Figures for the Dolphin House project show that between March 21st, 2011, and February 29th, 2012:
First contact information sessions attended:1,144
Second contact information sessions attended: 686
Mediation sessions attended: 740
Agreements reached: 264, plus a substantial number of mediations in progress.
“In addition to the obvious advantages of 264 couples not entering the adversarial system,” says FMS service director Polly Phillimore, “there are many advantages for couples who, by having an opportunity to mediate, may have developed more effective communication and consequentially a less stressful parenting relationship both for themselves but, more importantly, for their children.”
The project is set to continue and it is hoped to extend it to other major centres. She says there has been very positive feedback from clients, many of whom were surprised to be told that there was an alternative to going to court.
The FMS, which is operating on a budget of €2.8 million for 2012, compared with an annual budget of €3.9 million five years ago, sees about 1,500 couples a year.
While the numbers of clients attending its 16 full-time and part-time mediation centres around the State have remained fairly static over the past five years, “the issues and circumstances brought on by the recession have become increasingly complex”, says Phillimore.
Waiting times are generally about two to three months, although they range from one month in Cork and Castlebar, Co Mayo, to six months in Blanchardstown, Co Dublin, and eight months in Wexford.
However, the FMS says that the use of additional, private mediators in recent months is helping to reduce waiting times.