The Crises of Marriage Breakdown and Processes for Dealing with Them

AuthorJulien D. Payne/Marilyn A. Payne
Pages129-175
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.

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