“[…] Access to justice is a human right and divorce is a basic exercise in access to justice. For many women, divorce is the only means by which to escape domestic violence or financial subjugation at the hands of a spouse.
“[…] Adjournments or no shows of judges prolong the psychological and financial nightmare that is divorce since legal fees are still incurred and the delays exacerbate the stress, due to the uncertainty of when an outcome is likely.
“[…] Court delays and the unnecessary costs that arise can take a huge emotional and psychological toll on the primary caregiver, usually women, severely undermining the care of the children…”
The following guest column on the issues that women, in particular, face during divorce proceedings was submitted to Wired868 by the Caribbean Centre for Human Rights (CCHR) based on the testimony of a Trinidad and Tobago divorcee:
The end of 2022 was marked by 16 days of activism as annual global efforts to end violence against women culminated with Human Rights Day on December 10th. Violence against women remains the number one human rights violation around the world. That this is the reality in 2023 is shocking.
Women account for almost 50% of the world’s population, yet despite efforts to increase women’s rights and the participation of women in all areas of society—the workplace, education, academia, voting, politics—the harsh reality is that an accessible justice system remains elusive for many women who need protection.
In the context of divorce and dependent spouses, the majority of whom are women, accessing justice and protection comes with a distinct set of challenges, which is compounded by our inefficient justice system—and which, in some instances, place women at risk for various forms of violence.
The following account is the story of a woman who shared her divorce journey with us:
My own divorce journey has been traumatising. I felt compelled to share my story to highlight the areas where the justice system fails to protect dependent spouses—who are mostly women—and families and also to recommend feasible solutions the state can undertake to empower women and protect families.
The process of divorce is often emotionally stressful. The trauma and grief associated with the divorce process has been described as akin to the death of a loved one and can leave one in a particularly vulnerable state.
Family law emphasises the preservation of and minimising harm to the family. However many, like myself, who go through the divorce process experience a justice system that exacerbates the emotional, psychological and financial burdens and in some cases exposes dependent spouses and children to further trauma and abuse.
Access to justice is a human right and divorce is a basic exercise in access to justice. For many women, divorce is the only means by which to escape domestic violence or financial subjugation at the hands of a spouse.
The justice system, in the context of divorce, does little to provide equitable access to justice and effectively protect dependent spouses. It also lacks an awareness of the particular vulnerabilities women face, both as dependent spouses and primary caregivers.
The attitudes that I have encountered have been callous and devoid of sensitivity, professionalism and humanity, in an environment that is supposed to protect and uphold family values.
The challenges begin with finding competent and affordable representation you can trust to seek your interest. The main barrier to access to justice is legal costs, which are prohibitive for most and even more challenging for dependent spouses—especially those who are cut off from marital finances like I was.
Legal Aid exists; however, its overstretched resources means a timely resolution of one’s court matter is unlikely. Thus the reality is that many women who would like to get a divorce simply cannot.
Divorce can leave persons emotionally fragile, mentally exhausted and barely able to cope with navigating the process, thus finding a competent attorney is critical to protect oneself during these turbulent times.
Attorneys have an obligation to encourage parties to settle out of court and reach a peaceful resolution. However, where the client is completely ignorant of one’s rights and has limited knowledge of how the system works or where emotions run high, this can be exploited by unscrupulous attorneys—sometimes resulting in unnecessary legal costs.
My experience with attorneys has been nothing short of horrific. My first attorney padded legal fees, billing me for lengthy phone calls that lasted mere minutes or did not occur and disregarded explicit instructions multiple times that threatened my interests.
After the sale of a property, a single cheque was to be issued for deposit in a joint account to meet joint expenses. My attorney, without my knowledge or consent, told the law firm to issue separate cheques. Had I not promptly deposited the cheque in the joint account, I would have faced retaliatory actions from my ex-husband for actions that contravened the terms of the settlement agreement.
I strongly suspect that she wanted to ensure that I had access to funds so that she could get paid. I was forced to let her go.
At a court-ordered all-party meeting, where parties to the matter and their attorneys work to seek a resolution, I was harassed and taunted by my ex-husband’s attorneys, which only served to inflame the situation and delay a resolution: the complete opposite of the court’s goal in ordering the meeting.
This is not an exceptional situation and is more common than anyone intimately familiar with the justice system is willing to publicly acknowledge.
Attorneys are to conduct themselves in a manner that is beyond reproach and not engage in actions that place the profession into disrepute or undermine the public’s confidence in the legal profession. It is cruel and unconscionable for lawyers to exploit the unfortunate and vulnerable circumstances of women seeking assistance for example by inflating legal costs.
Recourse for these types of incidents can be addressed via the Disciplinary Committee, however the penalties are minimal.
Delays and adjournments are another feature of our broken justice system that impose additional burdens. Adjournments or no shows of judges prolong the psychological and financial nightmare that is divorce since legal fees are still incurred and the delays exacerbate the stress, due to the uncertainty of when an outcome is likely.
Women with already limited resources may not be able to withstand the costs due to these inefficiencies and opt to settle for disadvantageous outcomes because of sheer frustration with the pace of the justice system.
For financially dependent spouses or for spouses seeking to escape an abusive situation, a resolution of their matter is a matter of urgency. The lack of timely judicial procedures places vulnerable women at risk for financial exploitation and other violent forms of abuse and needs more attention when we talk about domestic and gender-based violence.
Judicial officers face no real oversight of their performance and any enforceable penalty would need to be sought through legal action.
It can be argued that the justice system jeopardises the best interest of the child by compromising the care and welfare of children of the marriage.
Court delays and the unnecessary costs that arise can take a huge emotional and psychological toll on the primary caregiver, usually women, severely undermining the care of the children.
The impact of inefficiencies of the courts on the mental health of the primary caregiver warrants attention, if preservation of the family is a priority of the courts.
When it comes to matters related to dependent spouses who are the primary caregivers, every effort should be taken to resolve it expeditiously. Delays in the justice system can be considered tantamount to abuse by state institutions on its citizens.
The callous attitudes of some judges is yet another layer of stress during this ordeal. During my appearance in court, after multiple adjournments no less, I had to endure a lecture from a female judge about parental sacrifices because she was frustrated that we were unable to settle the matter amicably.
She had an incomplete understanding of the matter and failed to do her due diligence and ask the necessary questions. She spent the greater part of the time—on my dime courtesy of the hourly rate of my attorney—waxing philosophical with irrelevant musings, rather than addressing the matter at hand.
I felt unprotected and, as a woman who sacrificed her adult life and career aspirations for the sake of her children and whose individual identity was subsumed in the role of mother, attacked and insulted.
Considering the challenges highlighted above, there are measures that the state can undertake to create an enabling environment for women’s access to justice.
Short-term measures include waiving court fees for dependent spouses, establishing a fund to address the urgent financial needs of dependent spouses—especially those who are cut off from finances and in abusive situations—and holding gender-sensitive training for attorneys and judges who practise family law.
Longer-term measures include amending the Matrimonial Proceedings and Property Act to include specific provisions that allow for the equitable division of marital assets upon separation or divorce. It is absurd that one has to litigate for what was already legally one’s own during the marriage.
This ensures that dependent spouses have access to resources and reduces the emotional toll on families. This would free up time and resources expended by the courts on these matters, which could be used to strengthen other areas of the justice system.
Legal Aid should be expanded to offer legal advice and engage in alternative dispute resolution mechanisms, such as mediation to increase access to justice for women who cannot afford attorneys and allow for a more expeditious resolution.
Legislation or policies should also be established to recognize the value of unpaid care performed by women during the marriage, which supports the establishment of the husband’s career and his skill development and without which economies would be unable to function.
According to the United Nations: “unpaid care and domestic work is valued to be 10 and 39 per cent of the Gross Domestic Product and can contribute more to the economy than the manufacturing, commerce or transportation sectors.”
Recognition of unpaid care would inform judicial sensitivities and decisions in divorce matters and protect other women from condescending lectures about “sacrifices”.
According to data from the Central Statistical Office (2018), one in three marriages end in divorce. It is unclear how this rate was calculated but nonetheless we can agree that the divorce rate is high, which means a sizable proportion of the population will face this upheaval at some point in their lifetime.
As primary caregivers, women play a critical role in the development of a society thus the economic and social well-being of a country demands that more efforts be devoted to ensuring the economic interests of women are protected during and post-divorce.
If the preservation of the family is a priority of the justice system, then matters related to the family ought to be dealt with expeditiously.
Policies should be implemented to reduce gender inequality when it comes to unpaid care of the family and accountability mechanisms should be established in order to protect the family from any abuses by the justice system.