Changing the language of divorce: towards a less confrontational vernacular in legal practice

As divorce professionals, we understand that the emotional toll extends far beyond the dissolution of a marriage. Every word in a legal document, every term used in correspondence or court proceedings, shapes the mindset of our clients. Traditionally, divorce law in England and Wales has leaned on adversarial language, reinforcing the idea that separation is a battle. However, with the evolution of family law and societal changes, we have an opportunity to rethink how we communicate—not only in substance but in the language we use. There is growing awareness of this issue within our community. The Family Law Language Project, for example, was created with a mission to make family law easier to understand, less hostile and more accessible by improving understanding around the impact language has.

This article explores how we, as divorce professionals, can adopt less divisive terminology to foster a more amicable, co-operative process. By moving away from language rooted in conflict, we can create an environment where clients feel more at ease, promoting resolution rather than confrontation.

The problem with adversarial language in divorce law

Divorce law in England and Wales has historically used terms that position divorcing spouses as adversaries. Words like “contested”, “petition”, “respondent”, and even “opposing counsel” imply that the parties are in direct conflict, rather than working towards a mutually beneficial resolution. This type of language can aggravate emotions, causing clients to approach the process with a combative mindset. While the introduction of no-fault divorce under the Divorce, Dissolution and Separation Act 2020 has eased some of the inherent adversarial aspects and terms used, there remains significant room for improvement in the vernacular we use as practitioners.

Belinda Moseley, a family lawyer at Geldards and an active member of the Family Law Language Project explains:

“Within the family law arena we are supporting and advising people and their families at a time of crisis and great vulnerability. How the professionals behave and the language they use directly has an immediate and much longer-term impact, not just on our clients and their families but also the professionals involved. I would always urge professionals to think very carefully about what they are saying, trying to say and who is on the receiving end of it.”

Examples of divisive terminology and suggested changes

“Petition” and “Petitioner” v “Application” and “Applicant”

The most prominent example of adversarial language in divorce proceedings was the term “petition”, where the spouse initiating the divorce was known as the “petitioner”. This terminology implied that one party is bringing a grievance or complaint against the other, who was then forced into a defensive role as the “respondent”. While these terms are technically neutral, they unintentionally reinforced the perception that one spouse ws accusing the other of wrongdoing, particularly in the context of historic fault-based divorces.

Replacing “petition” with “application” and “petitioner” with “applicant” provides a more neutral framework, reflecting the legal reality that the dissolution of a marriage is, in essence, an administrative request to end a legal contract. “Applicant” and “other party” do not carry the same adversarial connotations and offer a more balanced representation of the parties involved, especially in no-fault cases. This shift signals that divorce is not a personal attack but a family decision.

“Respondent” v “Other spouse”

Similarly, the term “respondent” positions one spouse in a defensive role, further perpetuating the notion of a contest. While the respondent is technically just answering a legal application, the term can feel loaded to a client, making them feel like they are being called to account. Referring to the other spouse simply as the “other spouse” softens this framing, helping to foster a sense of equality and shared responsibility in the process.

“Opposing counsel” v “Other counsel”

Even in the context of professional interactions, the language lawyers use can have a profound effect on the tone of the proceedings. Referring to the other lawyer as “opposing counsel” sets up an adversarial relationship, framing the process as a contest between two sides. While there are cases where contentious litigation is unavoidable, there are many instances in which the best outcome for the clients can be achieved through collaboration.

In cases where both lawyers are working towards a negotiated settlement, using the term “other counsel” instead of “opposing counsel” can help create a more collegial atmosphere. This subtle change in language can shift the dynamic, allowing lawyers to work together to achieve the best possible outcomes for their clients rather than positioning themselves as opponents locked in a battle.

“Spouse 1 v Spouse 2” v “In the Matter of [Surname] Family”

The practice of using “Spouse 1 v Spouse 2” or similar formulations in case headings is another example of adversarial language in the legal process. The use of “versus” inherently suggests conflict, reinforcing the idea that the case is a fight between two sides, where one spouse must prevail over the other. While this phrasing is common in many areas of law, it is particularly problematic in family law, where the emotional stakes are high and co-operation is often essential, particularly when children are involved.

An alternative would be to use more neutral headings, such as “In the Matter of the [Surname] Family.” This phrasing reframes the case as a matter concerning the family unit, rather than a direct contest between two individuals. It also subtly acknowledges that, even though the marriage may be ending, the parties will continue to have a relationship, especially if children are involved. This shift in language reflects the reality that the divorce process is about reorganising family structures, not about one spouse winning over the other.

Moving towards resolution-focused language

By adopting less adversarial language, we can help shift the focus of divorce proceedings from conflict to resolution. This approach is already reflected in many non-court dispute resolution (NCDR) processes such as mediation and collaborative law, where the goal is to reach a mutually agreeable outcome without going to court. The language of NCDR provides useful examples of how we might reshape the vocabulary used in traditional divorce proceedings.

“Mediation” and “Resolution” v “Litigation” and “Dispute”

Traditional legal terms like “litigation” and “dispute” reinforce the idea of conflict. In reality, many divorces do not need to proceed to litigation if both parties are willing to negotiate and find common ground. By focusing on terms like “resolution” rather than “dispute”, we can encourage clients to see the process as one aimed at solving a problem, not perpetuating a fight. For example, referring to a service as a “resolution service” rather than a “dispute resolution service” frames the process more constructively.

“Agreement” v “Order”

It may also be time to reconsider the use of the term “consent order”. While legally binding, the term “order” can imply compulsion, which may feel adversarial to clients. Although there are legal nuances that would need to be worked out, using “agreement” instead of “order” could signal that the terms were reached voluntarily, emphasising co-operation rather than enforcement. Clients who feel they have had an active role in shaping the outcome may be more likely to abide by the agreement in the future.

The impact on client relations and outcomes

The language we use as divorce practitioners not only affects how we interact with our clients but also influences how clients view the process and their role in it. By consciously shifting away from oppositional language, we can help de-escalate tensions and encourage a more co-operative approach. Clients who feel that their lawyer is working towards a solution rather than preparing for a battle are likely to engage more constructively, potentially reducing litigation costs and emotional strain.

Moreover, adopting a neutral or collaborative tone can help clients maintain better relationships with their ex-spouses, which is particularly important when co-parenting is involved. The ultimate goal of divorce law should be to achieve fair outcomes for all parties, including children, and a shift in language can play a vital role in achieving this.

As divorce professionals, we have the power to shape how our clients experience the process of divorce. By moving away from adversarial and confrontational language, we can create a more constructive, resolution-focused environment. Small changes in the language we use—whether in legal documents, correspondence, or case headings—can make a significant difference in how clients perceive the process and, ultimately, in how the divorce is resolved. For practitioners, adopting a less confrontational vernacular is not just about semantics but about improving outcomes for clients and fostering a more collaborative legal practice.

chloe@thedivorceandseparationcoach.com