It’s Over But We Cannot Afford to Divorce

Access to Justice, Self-Representation and the Non-Divorced

During November, NSRLP is focusing on the social impact of self-representation. Action Step #9 calls for new and better efforts to “measure the social cost of self-representation”.

What do we know so far?

Personal consequences of self-representation

We are right at the very beginning of really understanding – thinking about even – the myriad consequences of the large and growing numbers of people representing themselves in family and civil court. The National Self-Represented Litigants Study described an alarming range of serious impacts on individual SRLs, that commonly included health problems, long-term anxiety and depression, social isolation and difficulty maintaining employment.

When I began interviewing SRLs in British Columbia, Ontario and Alberta in December 2011, I was ready to hear stories of frustration and confusion, bewilderment even, with the complexity of the legal system. What I was less prepared for was hearing about the consequences of carrying this much stress at what is already a difficult time for SRLs.

Multi-layered impacts

SRLs are almost always experiencing multiple layers of stress: whatever has brought them to court (divorce, separation, continuing conflict with an ex-spouse, loss of employment, a terrible consumer experience, problems with tenants/ problems with a landlord…the list goes on) – plus the anxiety, demands, exhaustion and isolation associated with representing themselves.

And that is not counting the financial implications. Many SRLs are carrying debts from previous legal services, or are financially vulnerable in other ways due to the unresolved nature of their case. For example one woman who was unable to keep a well-paid professional position while she was working on her high-conflict custody case, described how as a direct consequence of her inability to afford a lawyer and being forced to self-represent “my son and I are being pushed into poverty.”

The societal consequences of self-representation

As significant as the costs to the individual of the self-representation experience, the wider social impact is also immense. So today I want to open up a related but different question – what is the cost of this amount of personal suffering, unresolved conflict, and financial insecurity on our wider public culture?

A fall in the divorce rate

I have been struck by recent reporting on the downturn in the divorce rates in the US and the UK.

In the UK, figures for divorcing couples in 2012 showed a 19% decrease from ten years earlier. (Divorces in England and Wales, 2012).

In the US, a report from the U.S. Census Bureau finds divorce rates for most age groups have been dropping since 1996 by an average of about 5 percentage points (Number, Timing, and Duration of Marriages and Divorces: 2009)

Is this because people are getting along better in their marriages all of a sudden? Probably not…

Some of the reporting on the downturn in divorce links the divorce rate to the economic climate. This argument is bolstered by a slight reported upturn in business by divorce lawyers – and small rise in divorce rates – as the worst of the present recession eased in 2012.

It seems obvious that in worse economic times, people might opt to avoid or at least delay the negative financial consequences of a divorce. Even an uncontentious divorce will probably leave you somewhat or significantly less well off than before as you divide up matrimonial property, move from one household to two, perhaps relocate or go back to school or look for a new job. A recent study in Australia (conducted for a financial sector firm) concluded that divorce can add 10 years to your working life (Sun Corp Untying the Knot (2013).

For those who find that divorce becomes a quagmire of conflict (and let’s be honest, that is many of us), and therefore face the prospect of the long-term involvement of lawyers, you can multiple those financial consequences many times over. The Canadian Lawyer “Going Rate Survey” 2013 says that contested divorces cost on average just under $10,000. Family litigants in the original SRL study reported spending $20,000, $30,000 and even $75,000, $100,000 on legal services before becoming a SRL.

Given these negative financial consequences – to say nothing of the emotional, social and health consequences of representing yourself in family court – should it surprise us that the divorce rate is falling? Is it possible that divorce is just too expensive, and the family justice system just too overwhelming and difficult to navigate alone? And that some people – who were not of course part of my SRL sample – voted with their feet by moving out of the matrimonial home, or perhaps moving to the guest room or sleeping on the couch, but giving the whole legal divorce thing a pass, at least for now?

Does it matter that people are not getting divorced?

If this hunch – and without a study that correlates access to justice barriers with the decline in divorce this is all this can be – turns out to be correct, what are the consequences for our society, and does it matter? If there are growing numbers of couples and families whose lives together have fragmented but who continue to be legally connected to one another as a married couple, is this a problem?

It might be. For families with children, the absence of divorce when the marriage is over may make it difficult – not impossible, but challenging – to establish a secure and stable set of norms regarding child support, custody and access. For couples without children, continuing to live in a shared space may not be easy. If there was domestic violence in the marriage, it may not be safe. Without divorce there are fewer financial protections for the less secure person, usually the woman. For the individuals involved, it is certainly less than ideal.

I cannot claim any expertise in relation to family social policy. Nor am I making an argument that marriage and divorce ought to be the primary model for the construction and deconstruction of families. But the fact is, they are. This means that a significant change in patterns around divorce raises some red flags – the lack of closure in marital conflicts, the impact on children who are most vulnerable to instability, and the number of couples who may continue to share space when their best interests and even their personal safety lie elsewhere.

Is the extreme stress of being a self-represented litigant – and the unaffordability of competent counsel for so many Canadians going through a conflictual divorce – one of the factors that might explain the decline in divorce rates?