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 the spouses and

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

disintegrates. Failure 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 experience. Furthermore, relatively few families

encounter separation or divorce without encountering nancial setbacks.

e emotional and economic crises resulting from marriage breakdown are

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

Bonding between children and their absent parent is inevitably threatened

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/306953629_Family_Conict_Resolution_Dealing_with_the_Consequences_

of_Marriage_Breakdown_through_Counselling_Negotiation_Mediation_and_

Arbitration; 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 and

there is substantial interaction among them. e dynamics of marriage

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 external systems. During the past 150 years, the

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

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

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

own lives. Decrees and “expert” rulings that exclude aected parties from

the decision-making process do not pass unchallenged. Omniscience 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 criteria of self-fulllment. One is satisfac-

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

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

their children experience a grieving process. e devastating eect of mar-

riage breakdown is particularly evident with the displaced long-term home-

making spouse whose united family has crumbled and who is ill equipped,

psychologically and otherwise, to convert homemaking skills into gainful

employment.

Most legal divorces in Canada are uncontested. Issues relating to the

economic and parenting consequences of marriage breakdown are usually

resolved by negotiation between the spouses, who are often represented

by independent lawyers. Because the overwhelming majority of all divor-

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

in resolving the economic and parenting consequences of marriage break-

down. at assumption cannot pass unchallenged. In the typical divorce

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

a time when one or both are still experiencing the emotional trauma 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 Them131

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

of their marriage or who feel guilty, depressed, or angry in consequence of

the marriage breakdown are ill-equipped to form decisions of a permanent

and legally binding nature.3 Psychiatrists and psychologists agree that this

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

tility, and depression, to the ultimate acceptance of the death of the mar-

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

the meantime, permanent and legally binding decisions are often made to

regulate the economic and parenting consequences of the marriage break-

down. From a legal perspective, the economic and parenting consequences

of the marriage breakdown are interdependent. Decisions respecting any

continued occupation of the matrimonial home, the amount of child 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 opportunities 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 client 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-playing or

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

e interplay between the emotional dynamics of marriage breakdown

and regulation of the economic consequences of marriage breakdown may

be demonstrated by the following examples. A needy spouse who insists

that no claim for spousal support should be pursued may be manifesting a

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

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

generous nancial settlement may be expiating guilt. Denial, depression,

hostility, and guilt are all typical manifestations of the emotional divorce

that elicit inappropriate responses to dealing with the practical economic

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

emotional states, they change with the passage of time. Separated spouses,

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

ments when one or both of the spouses are still going through emotional

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

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

respect to negotiated spousal settlements upon marriage breakdown. 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.