Saving your marriage by understanding divorce

As a family lawyer specialising in divorce my presence at the weddings of family and friends is often noted with some humour. Friends joke about getting to me first, and husbands of close girlfriends have been known to express concern about the conversations had over wine in their absence. But if Harvard Family Law Professor, Jeannie Suk Gersen, is to be listened to, perhaps any sharing of my knowledge and experience with them is only likely to ensure longevity in their relationship.

As discussed in a recent interview with Radio 4, Jeannie Suk Gersen believes that pre-marriage mediation is the key to a lasting relationship. She explains that, if you want to understand how to make a marriage work you should think about how a marriage ends in divorce, because it is through divorce that people learn the tacet rules of marriage. She argues that, if we can help people understand these rules of marriage before the marriage itself, they will be able to build a better relationship from the start.

Jeannie talks about the impact that studying family law has on her pupils, who have subsequently emailed saying that the course changed their life. She believes that the understanding of how their financial claims would be assessed in the event of divorce assist the pupils in making life choices that lead to long lasting marriages.

Jeannie believes there are three tacet rules of marriage:

• Sacrifice – it is important the sacrifices are not left unspoken, which can breed resentment, but taken account of, with both of the parties to the marriage understanding what has been given up and what is being received in exchange.
• There is no such thing as free childcare – childcare always has a value, even when no money is exchanged.
• What is yours becomes ours – it is important to recognise that most things, savings/inheritance etc, will be treated as matrimonial in the event of a divorce unless steps are taken to ensure they are kept separate.

Jeannie is advocating for couples to engage in pre-marital counselling to discuss these issues in preparation for marriage. She argues that this will make the relationship stronger and more able to withstand the uncertainties that inevitably lie ahead.

Following the interview, the program explores whether the idea of pre-marital counselling has legs. I would say that the conclusion is broadly that it doesn’t, but there are some valuable ideas to be taken forward. As Davina Katz, a family solicitor and guest on the program, notes, what is being advocated is similar to the process that parties go through in the preparation of a pre-nuptial agreement, save that the focus there is heavily on financial matters whereas the counselling would likely focus on emotions, children and other aspects of life.

In reflecting on the discussion, I note the follow:

• I know a lot of family lawyers, but I could think of only a few that had been divorced. That must say something – surely it isn’t just the other spouse being afraid of the outcome.
• If nothing more, Jeannie’s experience and idea is another excellent reason for people to consider entering into a pre-nuptial agreement.
• In 2016, an Avvo.com survey found that roughly one third of divorcees regretted their divorce.
• Perhaps pre-marriage is not the only time that Jeannie’s idea could help people “save” their marriage. Perhaps a mid-marriage mediation/counselling session would improve communication, ensure that sacrifices are being recognised, remove financial tension (a post-nuptial agreement could event be drafted) and shatter any “grass is greener” elusions.

The recent Radio 4 interview is available to listen here