I’ve made my bed and now I must lie on it..

Many people still feel that parents should stay together for the sake of their children putting them first and their own needs second.  A growing body of research, however, indicates that the opposite may well be true.  A recent study conducted by the University of York has found that the children of divorced parents are more damaged by the arguments that occurred in the marriage itself than by the split afterwords.  Having disagreements is perceived and is, of course, normal but it is when those disagreements remain unresolved that the children tend to have long term problems. You would be astonished by the number of divorcing or separating parents who believe or convince themselves, that their children have no true idea of what is going on.  Children are like aerials when it comes to their parents, they are completely attuned to how the parents are relating to one another and highly perceptive.   Even when the parents do acknowledge that the children must have sensed the atmosphere or overheard the arguments, they still think that they can contain any damage to the relationship between them as parents and their children.  However, that is not true.  A Dad who is having frequent difficulties in his relationship is more likely to filter this into how he relates to his children and how he parents than the mother of the children.  Mums seems to be better at insulating their children from this kind of spill over effect which does not, however, exempt Mums as every lawyer knows Mums can and do consciously and usually unconsciously alienate their children from the other parent.
Parents need help to change behavioural patterns to enable them to stop conflict.   It is unlikely they can do this by themselves particularly as in my experience, so few of them want to accept that their children are affected by their behaviour.  It is true that all human relationships have disagreements and conflicts but if those conflicts are frequent, hostile and heated, this is a problem and if there is withdrawal and silence between the couple, or verbal insults, raised voices and physical aggression, we have major issues.
Among other things, children need love and a safe environment.   In order for children to feel safe they must know what conditions to expect from their living arrangements and the significant adults caring for them.  Where there is constant arguing, periodical withdrawal, unbearable silences, or physical abuse to name a few, children will feel entirely unsafe and such feelings will impact on their physical and mental health significantly.  As well as potentially suffering from depression, hostility and acting out, they can also take on the role of the super good child who becomes parent to the parents.  Parents will often overlook unusual behaviour particularly, if it assists them in their lifestyle e.g., the saint like child.  Children need their time to be children so being saint like or having an overdeveloped sense of responsibility is not good and is not a sign that your child or children are doing well quite the contrary in fact.
The simple truth is that children find unresolved marital conflict deeply disturbing.  Study after study has shown that children react to parental arguments physiologically as well as mentally by showing increased heart rate and blood pressure.  Such physiological reactions have been detected in children as young as 6 months.
Parents who are in the process of separating seldom have good communication.   Some do, but it is rare.  Most parents need help with their communication as parents since their communication as spouses/partners has broken down.  The first step is recognizing that civilised communication will make for less stressful and ultimately good parenting.  Good communication will go a long way to ensure that your children have good outcomes long term.   The good news is that with willingness and work on both sides, it is possible to have a very civilised post relationship parenting relationship.  Once you have recognized the communication issue the next step is to look for a civilized and resolution orientated way of sorting out your separation or divorce.  Not only will this take your children out of the centre of the battlefield, it will also reduce conflict between you and your ex, demonstrate new ways of communicating and also model good conflict resolution for your children.  It takes time, commitment, focus and work but it is absolutely worth it if you place a high value on your children’s welfare.
Uniquely, the collaboration process as a one stop shop can offer most of what you will need to achieve the above.   The process works by combining a number of different professionals in one location to advise the team rather than any particular person in the team. In addition, there are two aligned professional namely the lawyers.  One or two of those professionals depending on the couple’s specific needs are what we loosely call mental health professionals, meaning counsellors, psychotherapists etc., whose specific job it is to help the separating couple to establish a new pattern of communication by helping them to become aware of their patterns of communication and to practise and demonstrate other ways to re-communicate given their stated goals. We call such people collaborative coaches.  Lawyers, as I said, also form part of the professional team and their job is to represent their individual client in this process which means they operate only within the integrity of the process to seek resolution because you have opted for this process and that is what honours your instructions.  Within that context and only within that context, you will be independently legally advised at all times should you request same.  Within the process it is the lawyers job to advise on legal issues, create options for you, and generally help you to reach agreement while feeling safe and protected.  The lawyers will also draft your agreement and rule it in court as a consent agreement when that time comes. The process also allows for other professionals such as accountants and child specialists.  It is important to note, however, that everyone in the room must have, as well as their personal professional training, collaborative training and mediation training.  No one is equipped to do this work unless they have training.

Protection for abused spouses and partners.

Have you been told not to sign things without reading them?  Have you signed documents without reading them despite this advice?  Were any of those documents legal documents or forms or documents with a Harp on top or the name of a well-known establishment or Bank emblazoned at the head on the top of what you are signing?  Were they presented to you by your partner/spouse with another document covering them or half his or her arm obscuring the document from your view or did you even look or check to see if there was another piece of paper sitting on top of what you were signing? Were you told what they were, did you ask or did you just sign? Were you told that your signature was required immediately as they had to go in the post straight away?  You would not be alone if you did sign in such circumstances and, of course, as a general rule, we should be able to trust our partners and spouses.  Experience, however, teaches otherwise.  Few people would have much sympathy for you if you did sign in those circumstances.  The above kind of situations happens more to women than men in my experience since men usually do the business side of a couple’s affairs and are the ones engaging with banks, solicitors, and revenue.  Not always but generally speaking.  Those people with little or no sympathy are generally the same people who discourage prenups or any form of financial inquiry prior to marriage and would argue that there should be complete trust in those relationships.  Double standards? You betcha.  Cosmetically, this is a brave new world of equality and fairness but many of the old double standards lie underneath. In some ways, we were better off when we knew they were there because the term political correctness had not been invented and so people articulated their prejudices freely.   In short, we knew the enemy then for what they were.

Why would a woman, in particular, sign forms without asking questions in a marriage or relationship?  It depends on what the marriage is like, in that many women are bullied within marriages or relationships, suffer domestic violence or cruelty and often live with depressed and mentally ill partners as well as alcoholics, drug addicts etc.  Of course, all of this could apply to men too and I am not denying that.  It just so happens, however, that it mainly applies to women and the statistics bear that out.  When women live in those circumstances and many do for quite some time, they have usually hit rock bottom in the self-esteem stakes or are completely cowed or both.  Many of these relationships have settled into a survival mode which is quite often based on “I won’t ask any questions and I won’t rock the boat”.  Such women know from long experience the outcome of asking too many questions or thwarting their partner or spouse in any way.

The question is – what, if anything, can be done to help such women i.e., the kind of woman that consents to the sale of property or to a re-mortgage of a house or family home without knowing what she is signing or why? Where should the onus lie to ensure that such women are fully informed and independently advised of their rights?  The current legislation governing some of these situations is The Family Home Protection Act 1976 and that Act says that a spouse cannot convey i.e., transfer (that includes a mortgage) a family home without the prior written consent of the spouse even if that spouse is not an owner.  A family home is defined as a house in which a married couple ordinarily reside and can include a residence in which they previously resided. It does not include a marital asset in which they never resided and which is in one party’s sole name.  It is also important to note that while a bank or building society giving a mortgage is obliged to seek your consent prior to granting the mortgage, they have no obligation to meet with you or to ensure that you get independent legal advice.  In addition, people to whom your partner or spouse owes money and who as a result of not being paid the full or any of the amount owing, seek to register a judgment debt against your home, do not have to have your prior consent and can register without your knowledge.  Assuming for the purposes of this discussion that the property in question is a family home then your prior written consent is required but you now know that it can be given on the kitchen table, it does not have to be given in a formal setting.  Should such an important signature only be given in a proper and formal setting?  Absolutely.  It should also be given privately in as congenial but formal circumstances as possible to ensure that you really are in agreement and know what you are doing.  There should be a legal obligation on the Mortgagor to ensure that he or she not only had that interview with the spouse or partner but furthermore, that advice was given and rejected to seek independent legal advice.   The consequences of these requirements should be sufficiently onerous to ensure compliance and not just lip service to providing more elbow blocking documents to be signed. Who should cover the cost of independent legal advice to the non- owning partner or spouse – the person seeking the mortgage and it should form part of the application for the mortgage?  The Application for the mortgage should be kept on file and be available to a spouse or partner or request from their solicitor.  The Application should ask if the person applying is married or in a cohabiting or civil partnership relationship?  The Application should ask the Respondent to consent to an independent interview with spouse or partner in the context of this application and to agree to discharge cost of legal consultation.

We are paying a lot of lip service to domestic violence and it is about time that discussion became serious and real but we need to think outside the box on these matters.  In practice, I have come across far too many situations where I genuinely feel that the Banks, in particular, are way too casual in these matters.

What happens if one spouse is in charge of paying the mortgage on the family home or one spouse is responsible for monitoring the banking finances and cancels a standing order without the knowledge of the other.  Again, is the Bank’s obligation in this matter satisfied if they simply write a letter to the two of them sending it to the husband/wife’s business address without asking any questions or to the family home without knowing if the wife might see such correspondence or the husband as the case may be?  Is it even satisfied if they write to both of them separately at the home address but it is obvious from the envelopes that it is the same letter?  In common with all family law solicitors, I have been told by wives, husbands, and partners of never seeing any such letters or being told about them and not knowing about failures to pay and arrears on the mortgage as well as debts being run up.  Here again, we need to think outside the box and ensure that the Banks have obligations which go beyond just writing letters without thinking about what might be going on.  God Knows they make enough money so giving them some responsibility is hardly out of the question.  Of course, they will resist it, everyone resists new responsibilities but they will adapt.  Fear not.  Even if their only obligation was to ensure that the wife or husband in such situations had to take legal advice and that they could not give the loan, the mortgage, cancel direct debits or clear joint accounts (regardless of the terms on which the said account was held) without the consent in writing from the spouse or partner accompanied by a letter from a solicitor on headed notepaper confirming having met the party and been satisfied that the person wanted to consent or knew what was going on or as the case may be.  Some people will feel that is going too far, I am wondering if it is far enough.

For the rest of you, not bullied, not abused in any way, whose husbands or wives have no known addictions and who can check everything financial and property wise with no difficulties, and who still sign without knowing what they are signing – what can I say?  There is one born every minute.