The Crises of Marriage Breakdown and Processes for Dealing with Them

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 129-175

129129

Chapter 6

e Crises of Marriage Breakdown

and Processes for Dealing with em

A. THE CRISES OF MAR RIAGE BREAKDOWN

For most families, mar riage breakdown provokes three cr ises: an emotional

crisis; an economic crisis; and a parenting crisis. Both of t he spouses and

their child ren suer severe emotional upheaval when the un ity of the family

disintegrates. Failu re in the most basic of life’s commitments is not lightly

shrugged o by its v ictims. Marriage breakdow n, whether or not accompan-

ied by divorce, is a painful exper ience. Furthermore, relat ively few families

encounter separation or divorce without encounter ing nanci al setbacks.

e emotional and economic crises resulting from m arriage brea kdown are

compounded by the co-parenta l divorce when there are dependent children.

Bonding between children and thei r absent parent is inevitably t hreatened

by spousal sepa ration and divorce.1

Paul Bohannan identi ed six “stations” in the highly complex human

process of mar riage breakdown:

• the emotional divorce;

1 See Julien D Pay ne, “Family Conic t Resolution: Deal ing with the Consequ ences of

Marri age Breakdown roug h Counsellin g, Negotiation, Medi ation and Arbitrat ion”

ResearchGate (Februar y 1997) online: Resea rchGate https://www.researchgate. net/

publication/306953 629_Family_Con ict_Re solution_Deal ing_wit h_the_Conse quences_

of_Marr iage_Brea kdown_th rough_Couns elling _Negotiation _Mediation _and_

Arbitrat ion; Julien D Pay ne, “Various Ar ticles on the Mana gement of Family Conic t

and Altern ative Dispute Resolut ion Processes” Resea rchGate (Februar y 2017), online

Julien David Pay ne-Research gate. See also Joanne J Paet sch, Lorne Ber trand, & John-

Paul Boyd, “An Eva luation of the Cost of Fami ly Law Disputes: Measu ring the Cost

Implication of Var ious Dispute Resolution M ethods,” Canadian Research I nstitute for

Law and the Family (December 2017).

Canadi an family law130

• the legal divorce;

• the economic divorce;

• the co-parenta l divorce;

• the community divorce; and

• the psychic divorce.2

Each of these stations of divorce involves an evolutionary process a nd

there is substantia l interaction among them. e dynamics of ma rriage

breakdown, whic h are multi-faceted, cannot be addressed in is olation.

History demonstrates a pred isposition to seek the solution to the crises

of marriage breakdown in ex ternal systems. During t he past 150 years, the

church, law, and medicine h ave each been called upon to deal wit h the crises

of marriage breakdown. Understand ably, each system has been found want-

ing in its search for solutions. People are averse to losing control over t heir

own lives. Decrees a nd “expert” r ulings th at exclude aected par ties from

the decision-making process do not pass unch allenged. Omn iscience is not

the prerogative of any profession. Nor should the fami ly’s right to self-deter-

mination be light ly ignored.

B. THE EMOTIONAL DIVORCE

For many people, there are two cr iteria of self-f ulllment. One is satisfac-

tion on the job. e second, and more important one, is sat isfaction with

one’s marriage or fami ly. When marriage breakdow n occurs, the spouses and

their child ren experience a g rieving process. e devastating eect of mar-

riage breakdow n is particu larly evident w ith the displaced long-term home-

making spou se whose united family has crumbled a nd who is ill equipped ,

psychological ly and otherwi se, to convert homemaking skills i nto gainful

employment.

Most legal divorces in Can ada are uncontested. Issues rel ating to the

economic and parenting consequences of ma rriage breakdown are usua lly

resolved by negotiation between the spouses, who are often represented

by independent lawyers. Because the overwhel ming majority of a ll divor-

ces are uncontested, it might be assumed that the legal system works well

in resolving the economic and pa renting consequences of mar riage break-

down. at assumption c annot pass uncha llenged. In the t ypical divorce

scenario, spouses negoti ate a settlement, often with the aid of lawyers, at

a time when one or both are stil l experiencing the emotional t rauma of

2 Paul Bohanna n, “e Six Stations of D ivorce” in Divorce and After (New York: Doubl eday

& Co, 1971) c 2.

Chapter 6: The Cris es of Marriage Breakdown a nd Processes for Dealing with Them 13 1

marria ge breakdown. Spouses who have not come to terms with the death

of their marr iage or who feel guilty, depressed, or angry i n consequence of

the marri age breakdown are i ll-equipped to for m decisions of a perma nent

and legally binding nature.3 Psychiatri sts and psychologists agree that thi s

“emotional divorce” passes throug h a variety of states, including denial, hos-

tility, and depression, to the u ltimate acceptance of the deat h of the mar-

riage. Working through the spousal emotiona l divorce is a slow process. In

the meantime, permanent and legally bind ing decisions are often made to

regulate the economic and pa renting consequences of the mar riage break-

down. From a legal perspec tive, the economic and parenting consequences

of the marri age breakdown are interdependent. Decisions respecting any

continued occupation of the matri monial home, the amount of ch ild sup-

port, and the amount of spous al support, if any, are often conditioned on the

arrangements made for the f uture upbringing of the chi ldren. e perceived

legal interdependence of propert y rights, support rights, and pa rental rights

after divorce naturally aords oppor tunities for abuse by law yers and their

clients. e lawye r who has been imbued with the “wil l to win” from the out-

set of his or her career, coupled with the c lient who negotiates a settlement

when his or her emotional divorce is u nresolved, can wreak future havoc on

the spouses and on their c hildren. Far too often, when settlements are nego -

tiated, children become pawns or weapons in the hands of game-pl aying or

warring adu lts and the battles do not cease with the judic ial divorce.

e interplay between t he emotional dyna mics of marr iage breakdown

and regulation of the economic consequences of marri age breakdown may

be demonstrated by the following examples. A needy spou se who insists

that no claim for spou sal support should be pu rsued may be manifest ing a

hope for reconciliation or a state of depression. A spou se who makes exces-

sive demands is often m anifesting hostilit y. A spouse who proers an unduly

generous nancia l settlement may be ex piating gui lt. Denial, de pression,

hostility, and gui lt are all ty pical man ifestations of the emotiona l divorce

that elicit inappropr iate responses to dealing with the pract ical economic

and parenting consequences of ma rriage breakdown. Fur thermore, like most

emotional states, they c hange with the pa ssage of time. Separated spouses,

lawyers, and mediators should be aware of the dangers of prem ature settle-

ments when one or both of the spouses are sti ll going through emot ional

turmoil. Indeed, the notion of a “cooling-o ” period, though u nsuccessful

as a means of divorce avoidance, mig ht have signicant advantages with

respect to negotiated spousa l settlements upon mar riage breakdow n. Cer-

tainly, spouses and the ir lawyers should more frequently assess the st rategic

3 Bamford v Bamf ord, 2017 NBCA 35 at para 25 , citing Miglin v Miglin, [2003] 1 SCR 303.