The reality of the law

For the last 24 years, teaching law has been my bread and butter. Before that, I had 5 years of studying law and so, it is all I have ever really been involved in - or known - or so I thought. In my many years of teaching, I have lost count of the amount of times I have said to students - "oh you have a case" or "you can definitely sue for that" or "please see a solicitor". Easier said than done and I now have some personal experience in dealing with the reality of the law. Please note what I am about to say is not a criticism of the legal profession or solicitors I have been dealing with - this is more to do with being confronted with the reality of how the law actually works - which is different from the text books and the law of the lecture theatre where I have taught and expounded the law since my career started in 1996. I was never naive enough to think that seeking legal advice or pursuing an action would be easy or like the text books suggest - but seeing the law "in action" has been a little bit of an eye-opener.

I often tell my students that very rarely do you see a solicitor when something good is happening. Instead we usually resort to legal advice when we are hit with the "not so good" and need "someone on your side". This was my situation which is currently on-going and delayed as a result of the lockdown situation caused by Covid-19.

At this time, sadly, I am dealing with the breakdown of my marriage. It is distressing and deeply sad, especially since there are 2 young children involved and, for me personally, it is a real sense of failure. As someone who totally believes in marriage and the oaths and commitments involved, separation is even more painful. The separation was not my choice and the way forward is not my preference but when you have been told that "this is it" and "there is no way back", then, despite the emotions and feelings - you have to start facing reality.

My wife and I have been living apart for some time now. This is not a Covid-19 situation where we realised we were incompatible being in lockdown with each other 24 hours a day ??. No! This happened well before that but it is just fairly recently that the lawyers got involved. During our separation, until fairly recently, my wife and I spoke often. It started off every day where we would check in on each other, I would check and speak to the kids and my wife and I would discuss our situation. Over time that contact was reduced to a few times a week till presently, where, sadly, there is not a great deal of conversation going on at all. Since the separation I have seen my kids every week for dinner mid-week and they spend the weekend with me. During these summer holidays the kids have stayed at my home 3 days a week every week and just two weeks ago they spent a whole week with me. They have a mummy and daddy who love them dearly and, despite other issues, will always work together for what is in their best interests. Lawyers and agreements were not mentioned for some time since we separated and indeed we sat down and worked out our own "agreement". Money and finances were discussed and agreed to, contact time and holiday arrangements for me and the kids were agreed to and adhered to - and there have been absolutely no major issues at all. It was an arrangement that worked and, if I am honest, I always hoped that we may be able to reconcile and therefore this agreement would work in the meantime - no matter how long that would be. At this point I can hear the legal profession cringing and perhaps shaking their head in dismay and disagreement. I agree - and despite knowing this was never a good idea and being told many times by friends and colleagues - and lawyers - the truth is - it worked!! Despite separation, I was involved in the lives of my kids, property and financial issues were resolved and it meant we could live our lives as best we could despite the broken relationship. However, as time was going on, I did realise this arrangement could not continue indefinitely. Both my wife and I only had each other's word that we would stick to the agreement. We always did and we always consulted each other if we needed to make a minor change at certain times - "can dinner with the kids be Monday next week instead of Wednesday?" or "Can I pick them up at 4 this week instead of 5?" We had the interests of the kids at all times and, as I say - it worked! Hence the delay in seeking proper advice and assistance. Even in the quieter moments when thinking and realising that something more permanent was needed - I hesitated and delayed. I didn't want to "rock the boat", I didn't want to face the reality of admitting that my marriage was over and, for me, "once the law got involved" - that would be it! Result - more delay! I came to realise, however, that for the protection of everyone involved, something more permanent was needed. We were relying too much on good will and there was nothing in the agreement to stop either of us reneging on the terms and conditions. We were vulnerable legally and therefore, it was time to move to seeking proper legal advice. Yes, it was time to involve the profession and the people which had been part of my life for so long. I had enough offers of help from lawyer friends and others who had "contacts" etc. If I wanted, I could have had access to a "dream team" to assist me in any action I wished to pursue but this was not what I wanted. I wanted to build on the trust, respect and civility which my wife and I had shown thus far. I would like to say it was a "lightbulb moment", a moment where common sense spurred me into lifting the phone to make an appointment. I am afraid not! This is obviously not the place to reveal such information, suffice to say I felt that things were changing and - I had no choice! To protect us all, but mainly me in this situation which had arisen, I made an appointment with a solicitor.

My experiences from this point on have been fairly positive. I have no complaints at all regarding the advice I have received or the progress of the case thus far but all I will say is is - if you wanted or needed something done quickly - you are going to be disappointed ??. The law does not offer immediate solutions. There are instructions to give and take, these need to be sent to the "other side". More time passes as you wait for counter-proposals, these need to be discussed and before you know it - months have passed and you still do not have a "simple" agreement agreed and signed by both parties. Whilst all this has been going on, my wife and I have continued with the terms we have agreed between ourselves and, in fact, those terms mainly form the basis of the legal separation agreement we are currently seeking to draft and have endorsed by the courts. In fact, my solicitor, said at the initial meeting that we had done most of the work and was just a case of making sure that this was done properly for the protection of all. Legal separation agreements are not that common it seems (they barely get a mention in law books) and yet here I am currently pursuing this route rather than divorce. There are many reasons for this route which I will not go into suffice to say, for now, this is the solution that suits the needs of my wife and I and, most importantly, our two young kids who are coping well overall despite their young lives being disrupted. Good progress was being made in finalising the agreement but lockdown has delayed this which has meant my wife and I are currently continuing to operate under our "own" agreement. We no longer speak regularly, there are probably more bumps in the road now than previously and there is increasing distance. All very sad. Despite the slow workings of the law, the expense and the distance that is created between a couple in such situations, I look forward to when I can finally sign off on the agreement and have this endorsed by the courts.

The purpose of this testimony has not been to disparage the legal profession - a profession which I admire and have been involved in all my working life, albeit teaching it from the front of a classroom. Rather it has been to point out the "shock" (perhaps too strong a word) at how the law actually works in reality. It can be slow, expensive and it can confront you with reality as soon you see how easily things can change "once the lawyers get involved". However, I recognise, of course, that both lawyers and firms are looking out for the interests of their respective clients. It is wise to not take the tone of the letter personally - both sides are just making sure that all the relevant information is revealed in order to advise their clients. It is also a shock and probably the subject for a different article, as to how the law is very much in favour of the mother in such situations. Fear not, this is not going to turn into a "Fathers for Justice" type rant although I can now see how some fathers feel the law is not on their side - and have a fight on their hands. Again, I am reminded of the many times I have told my students that mothers obtain parental rights automatically and fathers have to go to court and pursue court orders etc. I was confronted with this, of course, during the course of conversations with my solicitor, but thankfully, up until now, I have not had the pain of being denied access to my two children. Given how slow things operate in reality, I cannot imagine not seeing my kids for months at a time. Thankfully, since week one when my wife and I separated, the kids have been with their dad mid week for dinner and every weekend unless, with mutual agreement, alternatives were arranged. Holidays are also well taken care of. I see and speak to my kids every week and they are doing fine. They have adjusted remarkably well and I am amazed at how they have coped. Nothing will convince me though that separation and/or divorce does not have some effect on the children. It absolutely does. I know this also as my parents split when I was young and it does affect you. Although my kids are doing well at school and my wife is doing an amazing job, they often say little things or share memories of times when we were all together and you see that in their quieter moments or when reminiscing, there is a sadness and pain there. All I can do is reassure them but it is a deep regret that they even have to go through this.

The positives of all this are that I have a solicitor who is looking after my interests and who has been very honest with me and taking the time to explain the pros and cons of our preferred solution. Her advice has been helpful ("I think that is a reasonable proposal from your wife" or "I think you are being too generous here - are you sure you do not wish to pursue this?). I am confident that the final agreement will be one which both my wife and I will be comfortable with and I hope with the easing of the lockdown, we may be able to soon pick up where we left off and finalise the agreement. This is necessary for the protection of us both and, most importantly, for our two little kids who deserve their lives to be as stable as possible and to see their parents, if they cannot or choose not to live together, to respect each other and still both be parents despite the sadness that separation inevitably brings.