Divorce litigation appears to be so wasteful. Precious money, time and emotional energy get consumed in battles that could be resolved so much more quickly through negotiation; and processes that promote settlement out of court like collaborative family law seem so obviously to be the better way.
However, while researching a paper on prenuptial agreements I happened upon the trials and tribulations of the Hartshornes. This is an extraordinary story – They disputed a prenuptial agreement all the way to the Supreme Court of Canada then fought about how to apply the decision, who gets the matrimonial home, how much to pay for the other party’s share of the home and finally over costs. All told they went to Court nine times over ten years.
It occurred to me that a collaborative process would have been very dissatisfying to this most combative couple. Although the notion that litigation should be avoided seems like such a reasonable point of view, it could be very patronizing to push this view on someone who is experiencing a painful marital breakdown and genuinely wants to fight.
No doubt lawyers who practice CFL are keenly aware of this, but the Hartshorne story makes the point so abundantly clear. It’s a monument to post-matrimonial melee. And to their credit, the Hartshornes fought with lawyers rather than fists … but I still scratch my head in amazement. Ten years in court to end a twelve-year marriage. Incredible.