The Justice of Separation Procedures
Authored by Maurits Barendrecht, Johanna Piest, Martin Gramatikov, published in 2015
Contested divorces – ending in family dramas in extreme cases – get a lot of attention in the media. But each divorce has great impact. A divorce means the end of a main economic and emotional relationship in which people were committed to invest. How do people experience a separation procedure? To what extent do they find the state of affairs and outcomes fair? And does society manage to mitigate the negative effects of a divorce?
Justice is often the subject of heated debate. For the first time, proper research has been done into how Dutch people feel they are treated if things really get tense. Through population screening, HiiL Innovating Justice researched how the Dutch experience justice.
This report focuses on separation procedures. The data shows that these procedures are relatively often associated with mental and physical health problems, and are also accompanied by a relatively large amount of stress. The average rating of all the measured justice aspects of a divorce is low (2.81 on a scale of 1 to 5). This is considerably lower than the scores for procedures for other conflicts of a similar severity. People’s needs and emotions only feel heard in a limited way by the professionals involved in their separation. The results (for example, the amount of child support) are not sufficiently transparent. That is likely to affect the degree to which agreements are met.
There is much reason to assume that the establishment of the legal process and the work method of lawyers play a key role. The separation process is strongly legalistic and puts disputes further on edge through a structure of request against defence or argument against argument. People do not have sufficient information and knowledge and therefore not enough control over their separation process. They have to rely on the professionals who take over. The financing system for judicial power and lawyers still rewards extra procedures, instead of achieving durable solutions. There is some control over the actions of the judges and lawyers. However, citizens experience the entire process, with all participants working in their statutory roles. The correlation is not systematically monitored and evaluated which is – among other things – due to the political sensitivity of the subject. Partly because of this, there is not enough innovation in the legal chain of separation procedures.
The potential for improvement is enormous. Professionals have access to a lot of knowledge about risk factors and methods to better address a separation process. There seems to be room for consensus about the goals of the renewed treatment methods. The sustainable improvement of access to justice, in particular the core of formal legal procedures, however, is always a big challenge. According to recently published suggestions from 24 leading legal experts, providers of new methods should be able to “challenge” existing practices. A so-called IKEA test could increase the manageability of the rules for alimony.
Politics could set social objectives and funding frameworks in the legislation for the procedures; detailed laws that are too often an obstacle to the necessary innovation can then disappear. The industry can then live up to the largely shared ambition to support people better through one of the toughest stages of their lives.