In the spirit of family mediation week, we wanted to discuss the more emotional element to divorce proceedings, specifically the potential for (sometimes failed) reconciliation attempts and how mediation can be genuinely beneficial to so many going through the ups and downs of divorce. Though mediation is not the same as counselling or couples therapy, it can provide a space to figure out the details of a separation that can sometimes lead to potential attempts to reconcile.
For many having issues in their marriage, divorce will be a considered option that is final, and we understand the decision to proceed with the separation is not one taken lightly. Often, however, going through the actual process of divorce can ignite renewed efforts to reconcile as the reality of the separation sets in. Couples may find that, through the use of counselling or mediation, or simply talking more openly with one another, they believe the relationship is salvageable and decide to reconcile, with inevitably varying outcomes. The nature of the process means that there is time to change your mind, but what is the actual guidance as to how potential reconciliation can change the outcome of your divorce? Can you attempt a reconciliation and still decide to go ahead with the final order if you change your mind?
Can I change my mind about my divorce?
In this line of work, we often see couples reconcile in the process of separation or divorce. We believe that giving couples the space they may need to really consider their choices, and not pressuring them to adhere to strictly imposed timetables, is an absolutely vital part of our work. The incredibly special thing about working in family law is the close connection you have to people’s lives and the way in which you can ensure the outcome is actually best for everyone involved. This does not always mean simply ploughing ahead with divorce proceedings where a couple may be unsure; rather, we prefer to adopt an approach that factors in the individual circumstances of everyone we work with.
A divorce becomes formalised upon the issuing of a final divorce order (previously known as a decree absolute). But at any point up until the dissolving of the marriage, it is absolutely possible to change your decision. The nature of family law means that decisions are often not set in stone and rely heavily upon the specific circumstances each family finds themselves in. If both parties in question decide to attempt reconciliation, this will be respected no matter the eventual outcome. However, do note that one party wishing for a reconciliation that is not reciprocated will not be taken into consideration in the same way, as it must be a mutual reconciliation in order to halt the process, and any attempts to derail the process or stop it from going ahead will simply be considered as disruptive.
What is the legal guidance?
We were really interested to see this issue brought before a court by a national judge. In HK v SS, His Honour Judge Simmonds, the national lead judge on divorce, outlined guidance on whether a final order should be made after the parties involved have reconciled for over a year. The case was referred to the national lead judge due to there being a lack of guidance ‘as to how the court should exercise its discretion when the parties had reconciled for a significant period’ under the Divorce, Dissolution and Separation Act 2020 (DDSA). In this specific case, the couple in question had applied for a conditional order in 2022 and then did not apply for the final order. The couple then reconciled in 2023 but separated a year later. The issue then arose when the applicant applied for the conditional order to be made final, with both parties agreeing they wished the final order to be made.
This case perfectly illustrates the realities of divorce and separation- it is not always smooth sailing, nor does it always come from a place of each party hating one another and choosing divorce in a snap judgement. Relationships can be up and down, so we think it is great to have some guidance as to how the nature of human relationships should be interpreted in a legal setting.
In the judgment, His Honour Judge Simmonds outlined the need for such guidance, stating that ‘parties need time to reflect…they should not feel the pressure of an artificially imposed court timetable.’ Specifically, the court recognised that ‘reconciliation may be gradual, and time should be allowed, adopting the words of Wood J, to allow any attempted reconciliation to “cement in”’. The guidance is now, therefore, that any period of reconciliation under two years ‘should be seen as an attempt at reconciliation but not a bar to the court allowing a final order to be made’, a guideline we think encapsulates the often indecisive process of separating.
How can we help?
As divorce specialists, we recognise that the nature of our work means we will inevitably see lots of ups and downs. We are here to support you through the process without any judgement, whether this ends in reconciliation or a finalised divorce. We always work sensitively and ensure that every client is treated based on their individual needs, as we know a one-size-fits-all approach does not work, especially as divorce can be so emotional. Though we do not offer specific mediation services, we work closely with those that do, and would encourage couples who are struggling with sorting the specifics of their divorce due to the inherently stressful nature of separation to consider it. If you are going through a separation and need some support, please don’t hesitate to get in touch with us – we offer free 30 minute consultations if you just need a chat about your options.
