As the Law Commission prepared to publish its report and provisional recommendations in relation to prenuptial agreements, he told the FT:
Emotions are engaged in a way in which one suspects emotions are not engaged in litigation carried out through Queen’s Bench division or Chancery court.
I couldn’t agree more.
As a solicitor practising at grassroots level, I get to know a client for better (or worse) during the course of his or her case. Indeed, it could be argued that as a solicitor I get to know a client much better than his or her barrister, who may get to meet the client on a few occasions only. Even then the client is buffered by the solicitor for the most part.
In fact, few barristers and even fewer judges will ever see a client in all the differing emotional states that we solicitors do.
A typical case: from denial to acceptance
The example to which I am about to refer describes a female client, but applies to male clients in equal measure. Both are the “innocent parties”, having been left for another person.
Typically I will first see the client, who has been deserted by her husband for another partner, when she is deep in shock. She will be seeing me because her friends or family members think it is the right thing for her to do, in the circumstances. They are probably right, but usually the client isn’t receptive to any of it. The last person she wishes to see is a divorce lawyer, who is there to help her get out of a marriage that she desperately wants to save. This can be the case even when it is clear that the client’s husband, with the advantage of months or even years of planning, has other ideas.
In all likelihood, she is still stubbornly in denial when I see her for the second time. Perhaps she has tried to come to terms with the loss of her spouse, her home and the distress of her children, but it is all too much to bear.
It isn’t happening.
He may still come home.
He just needs time.
Months later, when she begins to move forwards, she will become angry. He has rejected her. The utter coward gave her false hope. How dare he ruin her life and the children’s lives too?
How dare he?
The next time I see her, she is enraged. Often this is the time when the financial disclosures are being made and she believes that her husband is being less than truthful. Everyone will be getting the flak. It’s everybody else’s fault and above all, it’s his, or his lawyer’s, or his family’s. They are all conspiring against her. She may even be right.
Then, as the truth that he is never coming back home begins to dawn, she will be prepared to bargain, as a last resort to stop the divorce happening. But it takes two to tango, and he’s too far ahead of the game to even consider it. Nothing works. He wants to take full advantage of her weak state of mind to try and get her to settle for too little.
And she finds it incredibly tough.
Time passes. She finally realises that the past is in the past and he isn’t coming back. She accepts that she must come to terms with her family circumstances. She finds herself ready to face the future and her new life without him.
And she does.
However it takes time and courage to get to this stage. It doesn’t always happen quickly, and the court case may be over before she’s even ready for it. I reckon that on average, it can take at least a year for a distraught client to realise she has no choice and to reach this acceptance stage.
For a solicitor, it can be challenging to manage a client who is trying to cope with such an array of emotions. The client can’t help it. Everything she feels is real. Her ups and downs; her highs and lows. Her pain and devastation may even cause her to react in ways she wouldn’t dream of doing if life was great.
But life in divorce isn’t great. It is far from it.
It can be horrible and lonely. The client can’t help how she feels and she must deal with the pain of divorce at her own pace. And deal with it most of our clients do, physically and mentally.
By the time she reaches the acceptance stage, the typical client will have her urges to text “him” under control. She may have steadied see-sawing weight or had a new hairdo. She will have retrieved her dignity and self-confidence. Finally the client finds closure, all by herself.
It is a cathartic process, one which all those who have experienced divorce or bereavement will recognise as normal and will have experienced to some degree.
It is of course made much more difficult if the wife is also physically ill. For example, what if she is a cancer sufferer, whose husband has turned to another for comfort? This isn’t as infrequent as you might think. She is fighting two battles, one of them for her life.
I wonder, would binding prenuptial agreements help or hinder this emotional recovery process?
If I were a wealthy man with a newer, more inviting model in the wings, I would – naturally – vote in favour of an advantageous, rock-solid prenup to remove myself from my current marriage. How much simpler life would be!
No messy divorce.
No legal fees.
Trade in one spouse for another.
She would just have to deal with it.
Similarly, if I was a wealthy man and was minded to protect the interests of the wealthy family from which I hailed, I would vote similarly. I’d crunch the older model into the ground: my new wife would be hovering on the horizon – and she would come and go as cheaply as her predecessor did.
How cheap and easy marriage would become!
Consider the needs of the deserted wife. She is left bereft, alone, with no real income capacity to maintain herself. Her self-confidence is worn down and her dignity is in shreds.
Her husband has shamed her by moving on and worse still, if these prenups with their renewal and exclusion clauses have become binding, and she has been obliged to sign one, there is little that can be done. Nothing is left to the wife other than what her husband has graciously decided to bestow upon her.
As judges know, these wives sign because they trust their partners.
It is difficult enough in cases that involve rich men, with assets in trusts, meeting their wives needs. If these women are tied into harsh prenuptial agreements, their fates would be far worse. The wives would be ruined while their husbands would not.
All our law would be turned on its head. Meeting the spouse’s reasonable needs and standard of living during the marriage? Not a chance.
Let’s consider the emotional states of the parties when they entered into such an agreement. Pre-marital stresses are known to exist. This should be a happy, fun time – but in many cases it is fraught with nerves and worries on both sides. Brides will find they gain or lose weight, arrangements for the wedding are often complicated and expensive, families may be quarrelling, there will be a home to consider, a wedding list, the guests, the cost of it all and the honeymoon. All parties will be treading on eggshells.
Is this the best time for a coldly impersonal marital agreement that, years down the line, could leave one spouse virtually destitute?
Perhaps you would argue that people have a choice and don’t have to sign up to a prenuptial agreement.
But guess what? They are emotionally involved and they trust their partners, even when everyone round them thinks they are fools. They don’t care about lawyers and the future because their emotions are preventing them from thinking rationally. If they were rational, cold-hearted and commercial, they’d never sign a tough prenuptial in a month of Sundays.
Relationships (and not forgetting the intimacy of a sexual relationship which has produced absolute trust in the other) produce normal but highly turbulent emotional reactions which, observed objectively, are off the scale. It is because of those emotions that people decide to marry and for the same reason, why people decide to divorce.
So, if we understand how foolish emotionally involved people are when they sign the prenup, when lawyers can’t stop them, why on earth are we trying to hold them to their crazy bargain? Especially at a time when we need not do so, because we still have the fallback position in Radmacher?
Last week I heard the most unbelievable comment from one client.
Why, she wondered, had her husband decided to divorce her when his company, predicted to be sold in the next few years, was doing so badly right now? Was it because he was so mixed up, having started an affair?
I kid you not.
My client couldn’t see that this was absolutely the best time for him to divorce her, before the business picked up again. That’s because, in classic denial, she just didn’t want a divorce. So she was clutching at anything at all that might mean he was the emotionally unbalanced one of the two.
The First Wives Club
This weekend I watched one of my favourite films – again. The First Wives Club is terrific: it follows three wives through the full range of emotions that are so familiar to my clients, when all three are dumped by their husbands for younger women. The story is of course exaggerated, but the film is brilliant. At the end of it, all three reach the acceptance stage and begin to move on.
The clip above is from the end of the film, when the three wives literally dance off the set, their self-confidence and dignity returned. They accept the past and are ready for whatever the future may bring. And because they are played by Goldie Hawn, Diane Keaton and Bette Midler they all look fabulous.
The First Wives Club is raw, funny and at the same time, truly demonstrative of real life divorce and all its pain. It shows it can be overcome.
I never tire of this film. It’s unashamedly pitched at all divorcing women and if you are a woman going through divorce, I recommend that you download it and watch it immediately.
A final word
It is important to remember, particularly after the ruling in the Imerman case, that if YOU need to draw upon self-help in your case against your spouse, it can be very difficult. The judges are clearly aware of your emotional state, and they may even recognise that emotions don’t occur in the same way in the other divisions of our court system. However this does not mean that allowances will be made for any form of self-help.
The judges will have no sympathy whatsoever and, unlike the triumphant three women in the movie, if you decide upon any self-help you could find yourself in trouble. You could even, heaven forbid, end up in jail.
I wish our judiciary would watch The First Wives Club, and act on it. It should be compulsory viewing!