Can we apply the well-known five stages of grief to a marriage separation or de facto relationship breakdown? You can!

Elisabeth Kubler-Ross, a Swiss-American psychiatrist introduced what is commonly known as the ‘five stages of grief’ model in her book On Death and Dying in 1969. The stages included:

• Denial
• Anger
• Bargaining
• Depression
• Acceptance

Later, she and co-author David Kessler expanded the theory to include any form of loss, including a personal relationship such as a marriage.[1]

Denial

I don’t think it’s uncommon for one party to a marriage or relationship to feel it’s loss or potential loss years or months before it ends and then one day has the courage to say, ‘I don’t want to be married anymore’. In that period of deliberation are they denying the relationship is over or does it simply take time to arrive at the point where enough is enough? For example, you and your husband or wife or spouse are the best of friends, you still feel love for the other person, you don’t fight or argue, you have similar interests, and your kids are happy. Are we simply telling ourselves that this is marriage and separation is not on your radar?

Or there is the refusal to accept that the relationship has ended, and your kids will be ‘those children’ with those divorced parents.

Or separation has occurred, and it was out of your control and was not your choice. If it wasn’t my choice, it’s not happening.

There are then those clients who made the subconscious or conscious decision to separate some time before saying it out loud. Before sharing that decision with their spouse. They had time before separating to process the emotion. My unqualified advice to this client is to suggest they think back to when they were processing the possibility that their marriage or relationship was over and remember how long it took them to arrive at the actual separation point. A resolution of a family law matter is much more difficult if one party hasn’t been permitted the time to accept the loss of their relationship.

There is no fixed timeline for denial. Each person deals with the loss of a relationship differently. For example, it is not uncommon for me to have a client who is avoiding the reality of their separation, who obtains initial legal advice and says after the first meeting, ‘I won’t need to see you again, it’s just a phase they’re going through. A midlife crisis’ or ‘it’s a trial separation’. As a family lawyer and as a human being, I sincerely hope this is true. However, where it is not and the separation is final, avoidance is inevitable, and each case will be managed according to the individual and the other party’s insistence that the issues be resolved.

Again, each matter is different and as their family lawyer, how long your client allows their spouse to adjust and accept the reality of their separation should be assessed on a case-by-case basis. If denial is present or is ongoing, family law practitioners will need to think about whether they refer their client to a professional capable of helping them with the reality of their separation. We can empathise with our client, but we can’t be a shoulder for them to cry on (as tough as that may seem). Most family lawyers aren’t qualified to provide therapeutic advice and being emotionally involved can invariably cloud the legal advice that’s required.

From a personal perspective, it didn’t matter which category or example I fitted into, I still needed to process my separation as did my ex-husband. I can’t speak for him, but I denied it ‘needed’ to happen and I also denied it ‘did’ happen. It was what occurred after I accepted it that then mattered. How did I manage what comes after separation?

Anger

Kubler-Ross says this about ‘anger’ in On Death and Dying – “When the individual recognizes that denial cannot continue, they become frustrated, especially at proximate individuals. Certain psychological responses of a person undergoing this phase would be: “Why me? It’s not fair!”; “How can this happen to me?”; “Who is to blame?”; “Why would this happen?”[2]

In my 23 years’ experience as a family lawyer, the above questions have been asked or repeated by clients’ time and time again. Unfortunately, I don’t have the answer and I don’t believe that any family lawyer does either. We should take them as rhetorical questions?

If an answer is given, I think it’s condescending to say to a client ‘I appreciate it must be difficult, but…’ Given my personal experience, I can say ‘I understand what’s happened is very difficult for you and it’s not something you chose. I don’t profess to understand exactly what you’re feeling, but I have some level of appreciation for it.’ From a professional perspective I can say, ‘You may never get the answers to your questions, or you may not hear what you want to hear, but I can help you navigate through it.’

I think like denial, there are no timelines for anger. I think the way each party to a separation deals with their anger and the issues, and conducts themselves, whether through their lawyer or as their own advocate, has a direct impact on the existence and continuation of the anger stage. For me personally, the longer one of us held onto the anger, the more prolonged the difficult, but necessary discussions were.

From a professional perspective, it is my view that a family lawyer will best serve their client by simply listening during the anger stage. Rhetorical questions don’t need answers. If a client is annoyed by a letter they have read or a comment that is said to them by their former spouse, venting to their family lawyer may be all that is needed. I have often said to a client, ‘I prefer you to vent to me than say something regrettable or unhelpful to him (her)’.

Again, if the client needs more assistance than you are qualified to give, a referral to an appropriate professional should be given. A family lawyer should not hesitate to refer a client to an appropriate professional when necessary. A medical professional can’t give legal advice and a family lawyer can’t prescribe medication.

Bargaining

Compromise. Negotiation.

For some parties, the breakdown of a marriage or de facto relationship is like death or the news of ill-health. There is simply no ‘bargaining’ about the event. It is going to or has happened. There can be no compromise or negotiation and there is certainly no control.

In households where family and domestic violence is present, bargaining is common. ‘Please stay, I promise I won’t do it again. I will get help’ or ‘you are nothing without me and you will be homeless’. The guilt, fear and control the victim feels may outweigh the pain from the violence. They unfortunately believe the ‘bargain’.

In many family law matters, clients have the ability to regain control and certainty about their financial future and the care arrangements for their children through mediation or family dispute resolution. This does require each party to compromise. Where family and domestic violence exists, it may not be appropriate to mediate and an alternate method of negotiation and bargaining is required.

I was lucky. After the hurt passed and there was acceptance of our separation, resolving our property settlement and parenting issues were managed with dignity and honesty. A reflection of the relationship we had always had. I have always held the view that ‘if the parents are okay, the kids will be okay’.

One of the alternatives to an amicable resolution of a family law matter, is protracted and expensive litigation. Open the door and allow your dirty laundry to be shared with third parties in an open courtroom. Having had experience with my clients in that forum, there was absolutely no chance my personal life, as non-explosive as it was, and that of my children, was going to be on display for my colleagues and random strangers. In a marriage or relationship, most arguments and discussions about your family and personal circumstances occur behind closed doors and within the four walls of your home. Why on separation is it any different?

As a family lawyer, give your clients the best opportunity to control the outcome, give themselves certainty of their financial future, give their children the certainty of where and with whom they will live, and minimise the legal and emotional costs of the separation. Mediate, collaborate or arbitrate the outcome for your clients.

Depression

Silence. Sadness. Mournfulness. Uselessness. Lethargy. Tearful. Loss. Loneliness.

In this fourth stage, clients may feel the reality of their separation, the loss of their relationship or marriage. Mourning the end. Clients are not necessarily suffering from diagnosed depression, but experience all or some of its characteristics. Clients will also self-diagnose the other party, criticising them for the sadness they feel.

In society we don’t question the sadness or vulnerability of someone grieving a loss through death, so why would we question or criticise a person grieving the loss of their relationship.

In a relationship we go to bed next to our partner and we wake up in the same position. On death, we go to bed alone and wake up in the same position. On separation, we go to bed alone and wake up in the same position. Of those scenarios, I was fortunate to experience the first with two wonderful men. Unfortunately, I have experienced both the second and third scenarios and can personally comment that the fourth stage of grief can occur after a marriage breakdown and after the death of a loved one. That doesn’t mean I suffer from depression or any other mental health condition. It means that I am human and have the ability to grieve and continue to live my life, albeit in different way and not as planned.

How does a family lawyer personally manage the ‘depression’ or sadness of their client? I was asked this exact question recently ‘how do you deal with the emotions of your clients and ‘slops’ that come from a separation. How do you turn off?’

Answer – ‘the ‘slops’ of a client’s separation are issues they need help with. It’s the trauma they may have from the loss of their relationship. To help me differentiate and manage the emotions, from the beginning I have told myself, it’s not my life and I have a job to do’.

The response I then received shocked me. They said, ‘what does that say about you then?’

Response – ‘I’m empathetic and show empathy to my clients. They don’t need me to become emotional nor are they paying me to do so. They need my help to navigate them through ‘the slops’ of their separation. I can hold their hand in the legal process, but I’m not qualified to give them counselling.’

I don’t think I have ever heard anyone, including another lawyer, refer to the issues and trauma of a separation as ‘slops’. This is not and will never be my practice.

Family lawyers are qualified to give legal advice on many aspects of family law. Unless qualified, a family lawyer is not qualified to give a client therapeutic or psychological advice. So like denial and anger, if the depression persists help your client the best way you know how, refer them to a counsellor or psychologist. Suggest they speak with their GP.

Acceptance

Acceptance of a separation or loss of relationship doesn’t mean we ‘like’ what has happened. It doesn’t mean a client supports the separation or that they wanted it. It doesn’t mean that their pain is gone. As a family lawyer it means we should be mindful of the distinction between a client accepting they need to participate in the legal process and balancing how we manage them during that process.

When a client ‘accepts’ that separation has occurred, that there is no prospect of reconciliation, the focus may be on the next steps. They may question if it’s going to be okay? Will the kids be okay?  What does life look like after separation? How do we divide the assets? Where do the children live?

The answers to these questions can be answered by a family lawyer. Clearly, I was lucky. Not only did I have the knowledge and experience to resolve the property settlement and parenting issues, but my ex-husband and I were amicable. We were and still are friends. Others are not so lucky and once acceptance of their separation has occurred they may be more open and ready for legal advice.

When I receive a referral or have a new client enquiry, it is common for me to say to them, ‘information is power. Where possible, obtain legal advice and arm yourself with information about the legal process after separation’. By providing relevant legal advice, clients can make informed decisions and where possible, can have discussions with their former spouse, if they feel comfortable to do so.

For some family law clients, acceptance can bring peace.

[1] On grief & grieving: finding the meaning of grief through the five stages of loss – Kubler-Ross E, Kessler D(2014)

[2] On Death and Dying – Kubler-Ross E (1969)