When people ask about their Divorce Rights, they tend to be asking about a narrow range of information; for example, how much time will they spend with their children, what percentage of the asset pool will they receive, how much child support will they need to pay, or how much spousal maintenance will they receive? These are important questions, but are only about strictly legal rights.
We wonder if these feel like the only important rights, when all is said and done and a family has gone on to their life as a “two-houses” family.
Maybe the right to be heard is right up there with legal rights when it comes to deeper agreements and recovery from divorce?
We humans have a fundamental need to tell our story, and to feel fully listened to. This need or right is one that often goes missing in separation and divorce, when people are asked to live with agreements or decisions that are not created within the context of their story. In other words, the story has been ignored or its importance has been downplayed, and that’s a problem when every separating person has a big and important story to tell. Without the opportunity to tell that story in some way, no settlement or court order is ever satisfying or satisfactory because the cornerstone is missing.
In our family law system, we say that every case is decided on its facts and the law. It is a separate debate about whether any marriage produces facts rather than perceptions, but whichever is more accurate, to each of us, our beliefs are the facts. Our court process deals in “facts” within a limited range of what is relevant to the law.
Our system does not tolerate, much less encourage, the telling of peoples’ emotional story; their grief, anger, fear and loss, the narrative of the past that has helped them to survive and make sense of the present. For most people, this is another loss in the experience of separation. That loss can be partly filled by therapy, the ears of friends, family and colleagues, but that is separate from experiencing separation in a more whole way. What is missing for most people is the integration of their need to tell their story within the legal process. The great power in having a personal narrative valued and acknowledged for its own sake, does not form any part of the divorce system.
For separating people to have their personal emotional story heard, they must turn to places outside the traditional legal system, and be prepared to ignore fundamental parts of what they are in the system to fix. Many people report a de-personalisation of their life and relationship in the system, making them feel like nobody was actually interested in them as a person, or in understanding what the separation meant to them. And this is because what is important to the law and lawyers is usually different from what is important to the people whose lives are undergoing change.
Collaborative practice, interest-based mediation and other restorative processes give a much better opportunity for the expression of a person’s whole story, because those processes see separation as being about emotion as much as law.
Can we re-define family law rights to include the right to tell one’s own story, not for harvesting material for the fight, but to have that story met with compassion and understanding, because it is important and because it is normal?