“The cost to retain lawyers to fight it out in Court, and the time involved, can destroy a couple financially, emotionally and psychologically” – Christopher J. Clapperton
One of the most important institutions, that like others, has been changing throughout the years. Family. The constitution of it nowadays is not the same as it was some decades ago but besides that, the problems and conflicts continue pretty much the same.
Sooner or later it’s inevitable that a family will go through a legal question, such as a dispute pertaining to inheritance, divorce, child custody and access—the most common ones, according to experts. In most of these cases it’s necessary to search for professional help.
That’s when things can get really ugly. Disputes, fights over money or child custody—public fights. When it comes to famous couples and their visibility in the media, we are used to watching them air their dirty laundry for all to view but we all know this can also be the reality for “ordinary” families.
With this edition of Milénio Stadium centring around family and it’s de-structuring, we interviewed someone dealt with many family law cases and has years of experience pertaining to this topic.
Christopher J. Clapperton is a Barrister & Solicitor of Clapperton Munro Law who talked to us about what he has seen through the years with regard to families and their legal battles. He points out that nowadays couples are more willing to negotiate (although not always in good faith) because they realize the cost to retain lawyers to fight it out in Court, and the time involved, can destroy a couple financially, emotionally and psychologically. That’s one of the reasons that he, as an expert, certainly advises couples to adhere to domestic contracts, like cohabitation and marriage contracts, so once the love is gone it’s easier for them to separate in a peaceful way. Clapperton also speaks to the benefits of the mediation/arbitration process, instead of the Court battles.
Milénio Stadium: How can you evaluate the family’s disputes throughout the years? Are people more willing to negotiate nowadays than in previous years?
Christopher J. Clapperton: The underlying fundamentals of family law disputes have not really changed much over the years: division of property; spousal and child support; child custody and access, remain the major issues to be resolved on the breakdown of a relationship. What has evolved is the concept of a “family”. While there remain disputes on the breakdown of relationships between what some consider the “traditional”, married, husband and wife relationship (with or without children), we are seeing an increasing number of common law relationships breaking down involving men and women of both the same and opposite sex (again, with or without children), and same sex marriages (with or without children). These ever-evolving family relationships often pose additional legal and social challenges which may require the assistance of other third party professional to resolve (with or without Court intervention).As society has matured and developed, we are also seeing a rise in the number of women as the primary, major or sole breadwinner of a family, and in many opposite sex relationships, on the breakdown of these relationships, men seeking spousal support and/or child support (particularly if the man seeks, or the couple agrees, that that the man be or remain at home to raise the children). Aside from the legal issues of spousal and child support on a breakdown of these relationships, lawyers and other third-party professionals are faced with various emotional, psychological and sociological issues which may complicate and add to the negotiation and settlement process. That can ultimately mean additional costs for a couple.
I am seeing fewer couples entering into domestic contracts (ie. cohabitation and marriage contracts) than I did thirty years ago. Younger couples, in particular, often do not see value in these contracts. Many couples, young and old, simply do not want the added expense of retaining lawyers to represent and assist them through the process. That is unfortunate, as these contracts often serve to narrow or eliminate the issues to be resolved on a subsequent breakdown of a relationship…and as we all know, almost half of all relationships fail.
Are couples more willing to negotiate the resolution of a breakdown of their relationship than in the past? The simple answer is that many have no choice. The cost to retain lawyers to fight it out in Court, and the time involved, can destroy a couple financially, emotionally and psychologically. That is why we have seen a dramatic rise in the number of couples who opt to negotiate and resolve their matrimonial dispute with lawyers trained in collaborative family law, or through the mediation/arbitration process. People are much more practical now and value their hard earned money. These non-Court dispute resolution fora often provide an environment for more creative settlements, negotiated by the parties rather than a judge, and can be a more cost effective process for couples. Those couples who can check their emotions at the door, respect one another and value the relationship that they once had, put their children’s needs first, and think in practical terms about how to carve things up and minimize legal and other fees typically resolve their issues more efficiently and fare better as they move forward with their lives.
Regardless, our family law Courts remain backlogged with cases. Sometimes, Court intervention is necessary in the circumstances to resolve all or part or of a matrimonial dispute. The art of negotiation is critical even in a Court fought dispute. The more that can be resolved by the parties through negotiation with the assistance of their lawyers, the more control and certainty the couple will have, and the less uncertainty of how a judge may rule.
MS: What are the most common reasons for conflicts involving families that you as a lawyer must deal with?
C.J.C: Families come in all shapes and sizes; however, people are people, and most family conflicts that I come across are about: money; love; infidelity; loneliness; power; control of the family business; perceived lack of fairness; fear; hatred; jealousy; utter stupidity; arrogance; stubbornness; deep seeded hurt that has been bottled up for years; and lack of effective communication.
MS: What are the benefits of resolving family law issues outside of the courthouse? In most cases, is this possible?
C.J.C: If a couple can resolve their matrimonial issues privately, their dirty laundry is generally not available for public consumption. That may avoid public embarrassment for the couple, their children and/or their extended families. A private settlement, negotiated by a couple, may provide a foundation for mutual respect moving forward, provide a positive example to their children, and foster positive communication going forward (particularly where co-parenting is involved). The Court process can be very expensive, drawn out and emotionally, psychologically and financially draining for a couple.
Most cases may be and are resolved outside of the courthouse, even if the process that is commenced is acrimonious from the start. Once people who are focused on having their day in Court are faced with a few legal bills, they generally become more practical and open to negotiating and resolving their dispute quickly and cost effectively.
MS: We hear a lot about these mediatic cases, involving famous couples, fighting over their children’s custody or patrimony, and end up exposing family issues and their privacy. Can this make the process of separation even harder?
C.J.C: Of course…but that is what makes great soap operas and dramatic television/movies.
In the end, we must all remember….we are all fundamentally the same, whether we are rich, poor, an adult, a child, a celebrity, a successful business person, a regular “Joe”, a pillar of society, a politician, a religious leader, royalty, etc. The process of separation and divorce is terrifying, difficult, embarrassing, a failure one must accept, and it wounds and leaves scars..particularly on children. How one manages the process is ultimately a true reflection of that individual. I am a huge proponent of separating spouses getting counseling, as well as the children. Emotions run high, nerves are raw, and it helps to have a neutral third party to vent to…and help the spouses individually come to accept their part in the failure of the relationship, and to identify how to avoid repeating a similar pattern in one’s next relationship(s).Airing one’s dirty laundry, speaking ill of one’s former partner (to others, and particularly to the children), is not productive. In the end, are we not all looking for the same thing…respect, love, to be understood and be heard, to be valued, and be at peace with oneself.
Redes Sociais - Comentários