Crime and Punishment – Part 1 of 3

We grow up understanding that when we do wrong we must face the consequences, pay the price, take our medicine. We know if we commit serious crimes we will go to prison and that less serious crimes are also punished with fines, suspended sentences, community service orders and tagging. People don’t believe you should be able to do wrong and get away with it. However, what about ‘wrongs’ that are not crimes, not illegal but which hurt very much? What about abandoning your partner? What about committing adultery, desertion, cruelty and other unreasonable behaviour?

Crime and Punishment Part 1 of a 3 part blog focus mediation

There is quite rightly a movement to take the blame out of divorce and make it into an administrative process where no allegations of fault can be made. This has to be right as it is well settled law that the reasons a marriage ended does not affect arrangements for time with the children (unless the behaviour distresses them) or the financial settlement. The only exceptions are if it falls into a vanishingly rare category of cases where the behaviour is so unreasonable it would be inequitable to disregard it. For most purposes that means forget it, ordinary unreasonable behaviour won’t suffice. You probably need fraudulent financial conduct, forged signatures, and making off with the money – most ordinary divorces come nowhere near the level of conduct required. Having a secret affair and even a hidden child is not relevant conduct. Emotional ‘crimes’ are less likely to count than financial crimes, where there is room for the view that the person who reduces the matrimonial pot should pay the price for that.

An Ex Getting Away with Murder

There is no doubt that some people faced with the end of their relationship get very stuck on the reasons it ended. They may find it impossible to accept that their ex had an affair and that’s just what happens. They may strongly believe their ex must suffer a penalty, albeit not a true crime in the sense of behaviour that is charged, proven then punished through the criminal courts. We do not stone people to death for adultery. For the ‘innocent party’ this can feel hugely wrong and unfair. They see their ex ‘Getting away with murder’ so to speak. They believe s/he should suffer, pay the price and that price is that they should have less money or time with the children and they as the innocent party should have more money, an exclusive relationship with their children. . whatever. Of course this is not how it works. Children need a relationship with both parents and should not have to choose. Also, you are not rewarded with a more generous divorce settlement because your ex had an affair or was in some other way ‘at fault’. Yet still that feeling of injustice persists – not your fault – their fault – they should suffer you should not. Retribution is required.

The truth is the person who suffers the most in these situations is the person who cannot detach emotionally from the situation and let the relationship go, who cannot soothe their anger and move on with their life. There has been no crime and there will be no punishment. It’s not a criminal offence for a relationship to end – and most marriages die quietly when no one’s looking. So what should society offer as an alternative to adapting the principles of crime and punishment to family break-down?

Truth & Reconciliation

I’d like to propose a family version of Africa’s Truth and Reconciliation Commission, now the Institute for Justice and Reconciliation, which has been copied world-wide it is so successful. This is not with a view to saving the relationship, but with a view to constructing a forum in which things that need to be said can be said and heard and people can be helped to come to terms with divorce. We know that this type of process works and allows healing to take place and people to move on. How and why?

When people have been hurt and wronged they often feel upset, angry and outraged. They want this understood and acknowledged by their oppressor and they may want revenge and punishment. They need to be heard, this need is huge and there is currently no forum for it in family break-down where it is badly needed – otherwise it will continue to burst out inappropriately.  So we should set up a process for helping people to come to terms with the end of their relationship and where children want to be included this should be facilitated. We might call this The Acknowledgment and Acceptance Forum (AAF) and it would be informally facilitated by someone trained to run it. I’m not a therapist but as a mediator I have had to help people with a version of this many times – in order to start the work of mediation. This is what might happen:

  • Each person explains their pain and their ex’s effect on them
  • They must listen to each other and acknowledge each other’s pain and any responsibility they have for this
  • Things that people need to say can be said, heard and acknowledged
  • The facilitator helps understanding with explanations and interpretation, normalising and summarising. They reality check assertions and try to establish some sort of shared understanding about events if such is possible
  • The couple may realise they may never agree on the ‘truth,’ they have their own beliefs about what happened, this is normal and they need to let it go anyway
  • The parties are helped to come to terms with the end of the relationship, there may be forgiveness but it isn’t necessary – acceptance is enough
  • There may be apologies, acknowledgment of wrongs done so rage can subside along with any sense of injustice, so people can move on

The problem we have at the moment is there is no way for this emotional journey to be facilitated and without it the angst breaks out inappropriately in other forums such as court proceedings, solicitor’s letters, fights about children and the money. We need a Rite of Passage for broken families – next week see part two of this blog The Right Rites.

Author: Mary Banham-Hall, Family Mediator, Milton Keynes & Bedford

Call us on 01908 231132 or Email: info@focus-mediation.co.uk for further information or to book a Mediation Information & Assessment Meeting (MIAM) (11 Locations: Milton Keynes, Bedford, Broxbourne, Hemel Hempstead, London, Northampton, Oxford, Potters Bar, St Albans, Harrow and Watford).

Read more about family mediation at:  www.focus-mediation.co.uk

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