She, He or It

In 1997, Dr Lydia Foy an Irish dentist, at that time unemployed, registered as male on her birth certificate, applied to the courts in Ireland represented by FLAC (Free Legal Aid Centres) for the right to alter her birth certificate to reflect her gender of choice. She had been married with two children. She had separated in 1991 and in 1992 she underwent gender reassignment surgery in England, such surgery not being available in Ireland. My understanding is that this surgery is still not available in Ireland but interestingly the Eastern Health Board (as it was at the time) contributed money to the surgery. At the time of her application, Dr Foy had changed her name legally and her passport, driving license, medical and polling card all reflected her new name but not her birth certificate. After her marital separation Lydia was granted conditional access to her children at first, however, in 1994 the Irish Circuit Court prohibited all access. I have no idea why the Circuit Court arrived at that decision but I can make an educated guess. One can only imagine the suffering, confusion and embarrassment all this must have caused on every side of the equation. Recently, I listened to a transgendered woman being interviewed on the radio as I drove into work and she said that she was pleased that her ex wife at the time that she was undergoing gender reassignment surgery kept their daughter away from her because it meant that her daughter did not have to deal with all that stuff at that period and equally, she did not have to cope with her daughter’s confusion and possible pain when she had so much on her plate at that time. Much later she made contact with her daughter through a happy accident and discovered a wonderfully broad minded girl with whom she now has a great connection. I do not know how things worked out for Lydia Foy in that regard but I can hope. I know that at the time of her application to the court, the barrister representing her wife and children who contested the application when it came on for hearing in 2000, was a chum of mine, and from what I heard the children were very angry and confused about the whole business. After reserving judgement for nearly 2 years which must have greatly added to the suffering, the High Court eventually handed down a decision rejecting Dr Foy’s challenge. Then by a twist of fate, 2 days after the decision, The European Court of Human Rights (ECHR) handed down a decision in the matter of Christine Goodwin v UK, who was a British transsexual, that her rights were violated under articles 8 and 12 of the Convention. In 1970 in the High Court in London after 7 years of marriage, Arthur Corbett, a member of the British aristocracy, filed to have his marriage to April Ashley declared invalid on the grounds of Ashley’s sex. She was a male to female transsexual, a society hostess and a model for Vogue. Corbett was well aware of Ashley’s background and had been at the time of the marriage. She had been “outed” as a transsexual by either, The News of the World or the Sunday People (the morals of those particular rags are consistent at any rate) depending on which report you read, in 1961. The Judge ruled that the key criteria for deciding sex were chromosomes and internal or external sex organs. He ignored psychological factors or the effects of gender reassignment surgery and stated the essential role of the female in marriage was to have children. He went on to declare the marriage void. This decision guided Britain until 2004 when after the Christine Goodwin case in the European Court, the Gender Recognition Act 2004 in the UK was passed. Ironically, April Ashley applied in 2005 and was finally given a Birth Certificate showing her female name and gender. The Goodwin decision opened the door for the Foy case to be reviewed by the Irish courts. In 2005 it was back before the High Court who ruled in favour of Dr Foy finding that the Irish State was in breach of its obligations under the European Convention on Human Rights in its failure to provide recognition of the acquired gender of transgendered persons. Initially the State appealed the decision but subsequently withdrew the appeal and the way was then open for the State to deal with this matter in a proper manner. For Lydia Foy this had been a 13 year battle through the courts but an ongoing battle in that legislation has yet to be enacted and while progress has been made there is still a way to go.
After the High Court ruling in Dr Foy’s favour and the withdrawal of the appeal, the Government appointed a committee entitled the Gender Recognition Advisory Group (GRAG) in 2010 to enquire into, advice and report to them on this matter so that they could draft appropriate legislation. The makeup of GRAG was the subject of some criticism at the time and continues to be, in that no member of the transgender community was, officially at any rate, on the committee and the committee was made up of civil servants. The terms of reference of the committee were also somewhat limited in that it did not allow for any investigation into the situation of intersex persons. In any event, GRAG has recently filed its report.
The report proposes establishing a scheme to enable a person whose birth is registered in Ireland, who is 18, who has a clear and settled intention to live in a preferred gender permanently and has so lived for at least two years, to apply to have their birth certificate altered to reflect their acquired gender. This individual will also need to supply evidence of a diagnosis of gender identification disorder or evidence of having undergone gender reassignment surgery or evidence of legal recognition of their preferred gender identification by another jurisdiction. Furthermore, persons with an existing valid marriage or civil partnership are excluded from the scheme. Interestingly, this report is coming under much criticism from the Transgender Community and most particularly the Transgender Equality Network of Ireland (TENI) who were unrepresented on GRAG. Their criticisms are levelled most strongly at the provision that married persons and/or registered civil partners must divorce or dissolve their union before applying. Those who defend the recommendations argue that not to have this restriction would raise clear constitutional issues and equally those who criticise this recommendation argue that it raises clear constitutional questions. Clearly, we are headed for a constitutional challenge whichever way the legislation is drafted. Those arguing against the recommendation say that too effectively mandate that a couple divorce, prior to granting recognition, is a direct interference with the special constitutional position of the family based on marriage. Those arguing in favour of the recommendation say that if there wasn’t a restriction against married couples applying, the legislation would have the potential effect of introducing same sex marriage and would be open to a constitutional challenge. Of the two positions, both of which undoubtedly give rise to legal complications, I would take my chances on those arguing against the recommendation mainly because I see nothing wrong with same sex marriage and would rather open the debate that way. So why are civil partnerships required to dissolve? The justification offered was that the effect of no restriction would be to allow opposite sex civil partners to come into being in circumstances where the civil partnership relationship does not benefit from the full protection afforded to marriage! To put it mildly, I am perplexed by this one! If we have a problem with civil partnerships that do not have the full legal protection afforded to marriage then don’t make a distinction and simply allow same sex marriage. They also in fairness go on to say that if marriages only were mandated by the proposed legislation and civil partnerships were not, there would be constitutional challenge. Essentially, if we are going to be unfair to one lot then we have to be unfair to the other lot as well – equality of unfairness!! Yet GRAG states that it should be a guiding principle of the Scheme that the terms and conditions of the scheme to be set up would not deter potential applicants. Certainly this is a worthy sentiment but for those transgendered persons who are in civil partnerships or married, the proposed restriction is a potentially very strong deterrent. How is a person supposed to choose between their identity and their family? There are many couples who have married or entered into civil partnerships fully aware of transgender issues for one of the partners and who will not wish to separate or divorce. In addition, TENI criticises the requirement for a medical diagnosis or gender reassignment surgery in order to qualify to apply. This seems to be a choice between mental health treatment or surgery? Do we have the experts here to make this type of diagnosis? Many countries in Europe have had legislation on these matters since the late 70s and early 80s and now genuinely have the benefit of hindsight. Many of them are moving away from the requirements to have undergone surgery or some other form of medical intervention prior to recognition. It is worth noting that EU member states that have most recently updated their legislation have dispensed with these requirements. It would be good if Ireland would not only legislate on this long overdue matter but would also learn from the experience of others who have been here before us but it seems a tad unlikely.
Intersex persons are excluded from the recommendations in GRAG as the terms of reference of the committee did not allow for them to investigate in this area. Intersex is a term applying to a person born between sexes having partially or fully developed pairs of female and male sex organs. Intersex is not a sexual preference or an option. It is a physical or gender issue. However, most intersexed people do not consider themselves to be both sexes and tend to identify with one or other for various and complicated reasons. The issues surrounding intersex, not least the issue of sexual assignment surgery in infancy, the variations possible in chromosomes and how these variations should be regarded, are hotly debated and very controversial. They are worthy in and of themselves to separate consideration. It is vital that we try and include intersex persons in any proposed legislation. At present, intersex applicants are excluded from applying the UK as the definition of gender identification disorder specifically excludes them. To their credit, GRAG has flagged this issue and has recommended the need for proper consideration, research and medical expertise into the area of intersex.
(The use of gender specific language to write about intersex persons and transgender is often challenging and if I have unintentionally offended, I apologise.)

Billy Connolly

“I Do……provided always ….on certain terms and conditions…” Prenuptial Agreements

To prenup or not to prenup, that is the question! Most people think that a prenuptial agreement is far too cutting edge for the “likes of them” however, I saw as I researched this topic that no less a radical body than the Irish Farmers Association were calling for legal backing for prenuptial agreements. I suspect that many people feel guilt, if they even think about getting a prenup. Recently, one of my acquaintances sidled up to me and mentioned it in hushed tones “I need to talk with you about a prenup”. I told her to come and see me and then for weeks after that she would say when she met me “ I haven’t forgotten” as if it had been all my idea in the first place and I would warn that she needed to consult with me about this in good time and still no show. I began to feel like the spectre at the feast whenever I met her. In the end, she didn’t come and see me, but not for good or sufficient reasons, I suspect, more because she simply did not like the look or feel of herself as someone who had even thought about prenup before the big day. This woman had her own business which she had built up herself and so a prenup was something to which she should have given active consideration. But beyond hushed, hurried exchanges, this hard nosed business woman could not even bring herself to sit down with me and give the matter rational consideration. Why is this?

In historical terms, marriage had to do with family ties and consolidation of wealth. The contract element of marriage was to the fore. These elements are still there with more or less emphasis in different parts of the world. However, now, in the West we tend to forget that marriage is first and foremost a contract and one which is ring-fenced with laws as old as time and we focus on love. For many centuries husbands owned their wives as property as they did their children. A married woman could not possess property in her own right until comparatively recently in legal terms so that whatever she had was her husbands. Of course, she also did not have the vote or the right to divorce and so she was rightly ….”packaged” as they say. These laws have, of course, been updated, not without some bloodshed, but marriage is still a contract. Some of us only seem to reflect on the property aspects of marriage when we are separating or getting a divorce and only then with a huge tinge of bitterness. 50% of all first marriages in the US end in divorce and the number rises significantly for 2nd and 3rd marriages. Even though our marriage breakdown rate is relatively low by comparison to the US or even that of our nearest neighbour, we would not want to get smug. We have the leisure in Ireland of the “benefit of hindsight”. Because we were so late in coming to divorce, we can learn from the mistakes of practically everyone else in the Western hemisphere. We should not miss the opportunity.

At present, our legal position is that prenuptial agreements are not illegal nor do they have legal backing. The possibility of such agreements is envisaged in our family law legislation with the proviso that the court can vary them if it wishes and has a wide discretion. Should we leave well enough alone? There are very good arguments in favour of prenuptial agreements or pre-marriage contracts and I believe that we should take a fresh look at them and allow them to have legal backing on certain well defined terms and conditions.

We all agree that couples should be as honest as possible with each other before they marry. We all agree that couples need to discuss the hard questions with each other before they marry and share a common set of life goals, for example, how important are careers and money to us, do we want children, how would we like to raise them, will we both work once we have a family, how will we share finances, how will we interact with each other’s relations, family and friends, how important is time apart for each of us and so forth. There are many very important things that couples need to discuss from the standpoint of their educational and cultural backgrounds. We encourage couples to do pre-marriage courses precisely because we know how important it is that these questions get discussed and resolved or not, as the case may be, before the marriage. Yet in very many cases, they do not get discussed as is obvious to me in my job and worse than that, many people think it is unromantic to discuss things like money and property before a marriage. Yet we know that people have money personalities. Some like to spend, some like to gamble, some like to save, some exercise judicial spending and some like to budget and so on and on. Can any of us put our hands on our hearts and say that couples do not fight over money? Can any of us say that many couples do not profoundly disagree on how money is to be spent in their marriage and can any of us say that many a marriage has floundered when money shortages occurred? So we know that money is important and that for a marriage to work people need to have an understanding about money. A prenuptial agreement can help a couple begin their marriage preparation with an honest disclosure of their respective financial positions making each fully aware of each other’s circumstances. Such discussions will also lead to a crucial understanding of their respective attitudes to money.

Who should consider a prenuptial agreement? Those who are going into a second marriage should certainly consider a prenup since quite often they are bringing property into the marriage that was acquired previously or there are children from a previous marriage. People who are marrying for the first time but have children from a previous relationship, people who are marrying for the first time but one or both of whom has property or business interests and people of inherited wealth or property or those likely to inherit significant wealth. In the case of the aforementioned farmers many of them would have inherited family farms which had passed down through their families for generations only to see them being broken up as a result of a separation or divorce. As a result many farmers are not passing on the farms to their young sons for fear that the son’s marriage may not stand the test of time. This is not in anyone’s interests since we need fresh thinking in all areas of life. A prenuptial agreement is a contract signed by a couple before the wedding detailing what their property rights and expectations are upon divorce or death. Since marriage is a contract in and of itself there is nothing inherently anti- romantic in entering into a premarriage contract and since we all agree that discussions about money and property are a necessary part of foreplay so to speak, then what can be wrong with detailing those items and out expectations. As we tend to marry later in life than previous generations more of us have businesses and property entering into the marriage, and as our divorce jurisdiction gets older more of us are marrying for 2nd and 3rd times, so basically quite a few of us need to give the idea of a prenup serious consideration.

Recently, Prince William decided against a prenuptial agreement before his marriage to Kate Middleton. How much consideration he gave to it, I don’t know but a lot of headlines praised him for putting romance and love first which is quite simply wrong headed in my view. When Crown Princess Victoria of Sweden married Dan Westling, a fitness instructor, agreements were drawn up to define how wealth should be divided should they separate. Lawyers acting for the Princess ensured that all property, inheritance and gifts belonging to the royal household remained in her name. And does anyone really think it should be otherwise? I doubt it. Still we tend to associate prenups with the rich and famous and I suppose the examples I am using here are not helping but those are the prenups we hear about in the papers. Prenuptial Agreements have been popular in Hollywood for many years and in the US somewhat less so but they have not tended to be part of British law and still less of Irish law. That changed last October when Katrin Redmacher, a German heiress, succeeded in changing the face of marriage law in England when her prenuptial agreement protecting her inheritance was upheld by the court. And what is in England today tends to be in Ireland tomorrow. In the EU, Ireland and Britain are the only countries without legislation on prenuptial agreements. In Ireland, we have, in fact, already moved towards private ordering in Irish family law by the introduction of co-habitation agreements. Such private agreements will be enforceable subject to certain formalities and as things currently stand there are no comparable provisions for married couples. However, it must be obvious that it is only a matter of time.

There is no doubt that prenups have an uneasy place in society. Robert Brown, a British Airways pilot killed his wealthy wife because he thought he had been stitched up in the prenup. He quite literally hit her over the head with a mallet. So what needs to happen to ensure that brides who want a prenup are not courting death at a later stage and that the agreement will be enforced? Well in Ireland we should enact legislation for starters and such legislation should provide that couples should each have their own lawyer and there should be a full disclosure of assets on both sides. In addition, both parties need to have plenty of time to consider the terms before signing. If an agreement is signed too proximate to the wedding it could lend itself to a claim of coercion later.

Prenuptial agreements can be extremely detailed. We tend to think of them only in terms of property coming into the marriage which was acquired before the marriage but they can also make provision for money being set aside for college education in respect of either of the spouses or children and this might prove very important if, for example, one spouse had helped financially to put the other through college in the early days of the marriage. An agreement could also make provision to set up trusts for minor children.

The Irish Farmers Association has outlined a draft prenup which seeks to protect the family farm and prevent it being broken up into unviable smaller holdings. I think our Government has a vested interest in this as well both historically and in modern economic terms. They suggest that any new assets acquired during the marriage or improvements and/or additions to the farm would be divided. This is grand in theory but as a family lawyer, I can assure you that many a great battle was fought over whether something was or was not an improvement. Anyway, something has to be left to the lawyers, you can’t have people agreeing everything themselves, where would we be?

Void or Voidable – Nullity of Marriage

Sometime ago I wrote a short piece for my website on nullity of marriage. It intrigues me that, out of all proportion to its usefulness in practice, this area tends to fascinate. Why this should be so, I am not entirely sure. Perhaps it is the very archaic nature of this area of law that draws people in. Nullity is concerned with circumstances in which a marriage is deemed invalid. Some marriages are void ab initio meaning void from the “get go” and others are voidable. A marriage which is voidable is not void until one or other party applies to court for an annulment and the court finds in favour whereas a marriage which is void is void whether a party applies or not. There is no doubt that many still associate divorce with failure and may find it easier to embrace the idea of a marriage which, legally speaking, never took place or to put it another way was legally invalid, then to see themselves as having failed. For some it may be the possibility of avoiding long term financial commitments to persons with whom they had a relationship. In the current climate some of those enquiring about annulment are interested in because of its finality ie you go to court once, and assuming you are successful, that is the end of the marriage and there is no come back whereas under our separation and divorce law there is always a comeback and furthermore, our divorce law does not allow for a clean break scenario. In addition, under our divorce legislation, a person has to wait 4 years from the date of separation before applying for a divorce and for very short duration marriages, this can seem like an inordinate amount of time. If there is a possible annulment case to be made then you can apply at any time. Whatever the reason, it is an area that continues to draw considerable attention.
It is also, more than any other area of law, ripe for misunderstanding. Many are confused between Church Annulment and Civil Annulment to a point where some believe they are one and the same. When the Church of Ireland was disestablished in Ireland in 1869, the jurisdiction of the Ecclesiastical Courts of the Church of Ireland was transferred to the High Court under the Matrimonial Causes and Marriage Law(Annulment) (Ireland) Act 1870. So while the originating jurisdiction for annulment of marriage is Church based ie Church of Ireland, there is no ongoing relationship between any Church law and Civil Annulment law in Ireland. Therefore, if you obtain a Roman Catholic Church annulment it does not entitle you to remarry in the eyes of the State and has no bearing on whether or not you will be entitled to obtain a civil annulment. Part of the confusion here arises because of the manner in which Roman Catholic marriages are conducted where the civil part of the ceremony takes place in the sacristy in the Church itself. Naturally, people then assume that Catholic Church marriages are State Marriages and so it would probably be better for all concerned if parties marrying had to undergo a separate civil ceremony and then if wished a religious service.
The development of the Law of Nullity in Ireland was affected by our lack of divorce legislation particularly from the 1960s onwards. In common with most of Europe and America, Ireland experienced changes in gender role, social mobilization, sexual standards and behaviour from the 1960s onwards. These changes gave rise to increased tension between social behaviour and the law. This in turn, gave rise to a large increase in the numbers of petitions for nullity being granted by the courts and led to judicial development of the grounds for annulment. When we say “large increase” we are still talking about small numbers in the overall scheme of things. The cost of an application for annulment in the High Court up to the mid- 1990s would have, in and of itself, ruled it out for most people and this in turn led to the common suspicion, particularly among those who opposed this way of proceeding, that it was an attempt by the well-heeled to avoid the financial responsibilities incumbent on the breakup of a marriage. Since 1996 however, it has been possible to obtain an annulment of marriage from the Circuit Court as well as the High Court. This has the effect of making the remedy more accessible for many people and reducing the costs. Even though the courts extended the jurisdiction to deal with annulments to the Circuit Court in 1996 they did not take the opportunity to enact legislation in this area which was and is much needed. Legislation would have provided a much needed opportunity to educate the public on this provision and to engage in debate about the grounds for annulment and how extensive or narrow they should be. Many lawyers had assumed that as divorce is now legally obtainable in Ireland since 1996, that the numbers applying for annulment would drop and while they did initially, they subsequently rose. I don’t have recent figures so I am not clear if this trend has continued.
As a rule, the High Court hands down written judgements whereas the Circuit Court does not. This means that we have no way of knowing whether the Circuit Court is developing the law of annulment or retrenching on it. We don’t know to what extent precedents from previous High Court decisions are followed by the Circuit Court and whether their decisions are more in line with later developments or earlier decisions. Anecdotally it would seem that there is retrenchment but there is no certainty on this. There is also concern that whereas the High Court would have devoted time and detailed consideration to these cases, the Circuit Court does not have the time allocated to family law, particularly outside Dublin, and has enormous pressure on its lists, to properly hear such cases. The public has an interest in knowing what the law says and it also has an interest in knowing in an informed way what a court is likely to do in any given case. It would be extremely difficult for any practitioner to give an informed opinion of what a Judge is likely to do in the Circuit Court since there we have little or no recent written judgements by which we can assess the situation and these cases are not commonplace so an anecdotal body of evidence is unlikely also.
Annulment can be granted on the basis that a marriage is void or voidable. Grounds for a void marriage are:
1. An existing valid marriage.
2. Parties are under age and did not receive a court exemption. At present the age is 18 for both sexes.
3. Substantial failure to observe formalities.
4. Absence of consent.
5. Parties are within the forbidden degrees of relationship
6. Couple are of the same sex.
On the face of it most of these areas are self explanatory and the number of cases where such issues would arise except perhaps for No 4 would be very small however, there does seem to be a public interest in retaining these grounds. The state has an interest in regulating marriage and if that is acknowledged then adherence to the formalities would be desirable. However, there is some debate in relation to 4, 5 and 6. Looking at 5 and 6 first, there are presently 29 types of relationship which are forbidden in respect of marriage. Many of these are now obsolete and the state needs to legislate on this and bring it into line with modern thinking. Marriage has been defined in the law as “The voluntary and permanent union of one man and one woman to the exclusion of all others for life.” This means that the marriage must be entered into freely and without force and it must potentially be for life, it must be monogamous and it must be between parties of a different sex. Maybe this definition needs to be re-examined. As regards couples of the same sex, I have already expressed the view that as far as I am concerned parties of the same sex should be able to marry, nonetheless, even if marriage is reserved for those of different sexes, there are still potential problems for those who have changed the sex with which they were born to the opposite sex which makes the definition, though handy, worthy of some reconsideration and debate. The area in which the court has extended itself most is in the area of lack of consent or No 4. Prior to 1970 the law on this was fairly clear. You could only plead lack of consent in a very narrowly defined set of circumstances eg. Duress, misrepresentation or mistake. To succeed in a plea of duress there had to be a threat of a very substantial nature to life, liberty or limb. However, the judicial approach to this area has greatly broadened over the years. Now the court looks for “ full free and informed consent” as the yardstick by which they measure consent or the lack thereof. It is no longer necessary to establish duress, it is enough to show absence of consent. There is, therefore, a considerable expansion in the range of circumstances that will now potentially qualify as lack of consent. It is now the case that even emotional pressure will be sufficient to undermine consent as in the case of S v O’S 1978 where Judge Finlay found that the petitioner had been in emotional bondage when she married due to the Respondent’s constant claims that without her constant attention he would die. Again, the distress displayed by a Respondent when the Petitioner would try and break off the engagement was considered by the court to exercise a form of duress on her and thus she did not give a full and free consent to the marriage (O’R and B)1995. It is important to note that where previously the fear, threat or duress which a party claimed to have been under would have had to seem reasonable to an ordinary person now the test was subjective which meant that as long as it put that particular person in fear it was sufficient. So a person who was exceedingly shy and reserved was more likely to have succumbed to pressure from her parents than others of her age as found in N (orse K) and K 1986. For misrepresentation to succeed, the Petitioner had to establish that the error was such that there was “the appearance without the reality of consent”. This situation would only arise if there was an error relating to the nature of the ceremony as occurred when an Italian man who spoke practically no English thought he was entering into a ceremony of betrothal. It might also arise if a person was drugged or excessively drunk. Misrepresentation would also occur if a person was unaware of the true identity of the person they were marrying and it is important to stress that identity here does not encompass the characteristics of a spouse. The concept of misrepresentation was also broadened and it is now generally accepted that where a party was deceived as to a fundamental feature of the marriage, the resulting marriage was void for lack of consent. It is important to note that the essential issue here was the consent and whether or not it was lacking and not necessarily the basis of reasoning behind it. However, when Judge Lavan was asked to find that a Petitioner had not consented because he was deceived as to the age of the Respondent, he did not feel that this merited a finding the marriage was void. (PM and TR) 1998. Equally, Judge O’Higgins felt that there was no obligation on the parties to disclose inappropriate behaviour to one another which had occurred before the marriage. It would appear therefore, that the courts have rowed back a little on this one. However, while it is arguable that deception does goes to the heart of such a contract, it is a question of degree and actual deception as opposed to hindsight. As in the case of MO’M and BO’C 1996 it must be matter “of substance” which has been misrepresented or there is failure to disclose.
Marriages can be deemed voidable. Grounds for voidable marriages are:
1. Incurable psycho-sexual impotence
2. Inability to enter into and sustain a normal marital relationship.

By their very nature nullity cases can be excruciating to sit through. A forensic examination of other people’s sex lives can be very hard on the nerves of all concerned. In a straight forward physical sense, for a marriage to be consummated there must be penetration of the female by the male which cannot be partial and which does not require insemination as part of the process. I will leave you to squirm with that one. Sometimes a person may not in fact be impotent but just not able to consummate with a particular person. This is referred to as psycho sexual which is, to put it mildly, difficult to prove one way or the other. There is an exceptionally fine line between wilful refusal and psychological repugnance. And so you have Judges saying things like a man of stronger constitution would have overcome his wife’s reservations which is another way of saying ....? You got it!

The blurring lines get even more blurred when we come to No 2 above. This ground appears to be a judicially developed ground rather than one that previously existed. Initially, it was thought that this ground could only be invoked when the incapacity arose from a recognized psychiatric disease however, as time went on, it became apparent that some personality disorders would qualify and even severe lack of emotional maturity (BD v MC (orse MD) ) 1987. Again, it is a question of degree and it is clear that the immaturity would have to be of a serious order. Given, however, the lack of legislation in this area and the lack of jurisprudence in the Circuit Court particularly, it is very subjective to each particular judge. This makes for a great deal of uncertainty in this area when it comes to advising a client. While it is arguable that the law should never be entirely pinned down and should be adaptable to different people’s circumstances to some extent, it is still the case that some certainty is desirable and expected.

So should we continue to have the remedy of annulment in civil law or should we deal with all marital breakdown in the context of separation and divorce? There are some strong arguments for retaining annulment as a remedy particularly in the area of a void marriage, ie void ab initio. However, it does seem to me that lack of consent needs to be carefully re-examined in the light of new legislation. As regards voidable marriages, I concur with various reformists in that I think these areas are too woolly to make good law and should be left to divorce to sort out. However, I would not be in favour of legislation which confines the grounds for annulment to those grounds which constitute a void marriage when we cannot get a divorce for 4 years and so it would be my view that we need to reduce the requirements to be eligible for a divorce to 2 years rather than four and secondly, we need to have provision in our legislation for a clean break. There are many other legal anomalies which result from annulment and vary depending on whether your marriage is void or voidable and these could be remedied by doing away with voidability once and for all.

Intimate Strangers – the Stepfamily experience.

When we think of family, we usually think of Mum, Dad and 2.5 children. That pretty much describes your typical nuclear family and it is the model or standard by which we tend to judge all other types of families. I always want to add “apple pie” to the Mum and Dad bit, because I think it is very much a North American concept of family. We have adopted this idea and largely have not questioned it. In older societies, the extended family can play just as significant a role as Mum and Dad. Many factors have contributed to the development of the family over the centuries including industrialization, work patterns, unionization, labour law, war, education, travel, health, hygiene, life expectancies, childbirth, contraception, divorce and technology to name but some. Our concept of children and childhood, for example, is completely different to the concept of children in the middle ages. The idea of childhood as a virtually separate state of being is a modern notion. Nowadays there are many varieties of families. We have to try and understand the implications of this for all of us. We need to try and evolve new standards of evaluation, broaden our concept of family, to ensure the health and wellbeing of those who are vulnerable in our communities and most importantly so we can stay up to date with the realities of peoples ‘ lives and design our organisations and systems to reflect that.
In Ireland, where legal separation and divorce are such relatively new jurisdictions, we are only now beginning to focus on the supports needed to transition families through these life changing events. In my lifetime, and I am not vastly ancient, I have seen our society introduce contraception and divorce. I have seen our society go from one in which the Roman Catholic Church dominated not just our religious lives, but our social, family, political and work lives to becoming a marginalised church. I have seen our schools gradually dragged kicking into the world of non- denominational education and the Roman Catholic Church lose its iron control on education in Ireland. I have lived as a young adult without mobile phones, the internet and all the other pieces of technology that our young now take for granted. As a child when we went on holidays, we went to another part of the country, we did not go abroad. Some people ventured to England. As a child I grew up without a television, we got our first when I was about 11. A brave new world indeed! In the last 15 years we have gone from being a white Irish nation to being multicultural almost overnight. I don’t know of any country in Europe, except perhaps those in the Eastern European block, who have experienced the vast level of social change in a very short space of time that we have in Ireland in the last 30-40 years.
All these changes have enormous implications for us and bring with them whole new quandaries and dilemmas for us to explore and research . To some extent that is an underlying theme of many of my articles. One major social change that flows from the introduction of divorce is the issue of step families and the related concept of “blended families”. We all grew up reading fairy stories in which the wicked stepmother was a well known character. It is almost impossible to even say the word stepmother without having an image of snow white. One did not hear so much about step fathers. Perhaps that was because so many women died in childbirth so it was more commonplace for there to be stepmothers. I am not so sure about that as poor widows featured quite a bit in those stories and there were an extraordinary number of orphans, that is children without either parent. Given the lousy press of stepmothers in children’s literature we would have to ask how much that informs any discussion we can meaningfully have on stepfamilies and more importantly how it affects children whose families are moving into that category?
So what kind of problems arise for step parents themselves as opposed to how others mainly biological parents and children feel about them? The biggest problem is undoubtedly in the area of decision making. Step parents often feel that they are powerless in their own homes and that they are not consulted about things that affect them directly. There is no doubt that access arrangements for example made by biological parents to facilitate each other, or by a court order, can directly impact on a step parent’s life as can biological children not subject to their control in any way, coming to stay for holiday breaks or overnights. Equally financial decisions made by biological parents can impact on the step parent. These are difficulties, there is no doubt about that. Some of them simply go with the territory but they can be greatly exacerbated by a biological parent who fails to communicate with his/her spouse, fails to exercise discipline and set limits for his/her children at home and fails to instil respect into them for other people. Many biological parents suffer from a great deal of guilt after a divorce and as a direct result can cut their children far too much slack. This is turn can cause huge problems in the home where the step parent has no disciplinary function but at the same time has to live with uncorrected bad behaviour and outright disrespect. Envisaging these problems before you get married is important and discussing your mutual expectations. Going into the marriage with realistic expectations is probably half the battle. If the biological parents have working agreements when you come into the picture, you are probably going to have to accommodate those rather than actively attempt to change them and this applies to visits and money.
Most of us make ourselves completely miserable by trying to change other people. You will never succeed, you can only change yourself. Recently, I came across a Step Parent Bill of Rights campaign. One of their suggestions is :” People outside the immediate family – including ex-wives/husbands, in laws and adult children cannot make plans that affect my life without my consent.” If this is what you really think, don’t do it, don’t get married to that person with the baggage because your life will be one long misery. In fact, don’t get married at all because this happens in all families. Everyone does things without consulting you all the time and most especially your growing children, their teachers, your relatives, your husband, his relatives and so on and on and on. Ex- wives in particular, will seldom, if ever, consult a step mother and they will do things all the time without consent which affect your life. They will sign their children up for sports, swimming, dance classes and such like without any consultation with you. In that same Bill of Rights there are some useful aims eg: “I will not be solely responsible for housework, chores will be distributed fairly”. That should be true for all families and not just step families. Another one refers to people not violating your private space at home and borrowing or taking your possessions. I heartily concur, this should not happen but even in the best regulated households it happens all the time. Children dress up in your clothes or take your books, sit in your chair, borrow your clothes and so on. However, we don’t want to encourage this behaviour so I think setting this type of ground rule is a good idea.
Role ambiguity is one of the issues that makes step parenting challenging. By definition a step parent is an outsider. All the advice and research indicates that you should proceed slowly and with a great deal of caution. Where possible take time to get to know the children, to formulate realistic expectations, understand the nature of their relationship to the parent you may marrying. In other words, hang back, get to know the situation slowly and insert yourself gently. Researcher Patricia Papernow calls stepparents “Intimate Strangers”. It takes time to forge bonds with people. Don’t expect your stepchildren to fall in love with you overnight and don’t expect to fall in love with them overnight either. Its ok not to feel that you want to lay down your life for your stepchildren. There is no requirement to feel that kind of unconditional love and besides the children in question will probably reject it in any event. It is a myth to think that we will all love one another and feel like family instantly. Remember that biological families are created slowly. You have time to forge those bonds, take it easy. Research now indicates that children will take double their age to settle into the new family arrangements and establish new and healthy bonds. This means that a child of 4 could be 8 before they feel entirely comfortable with their stepparent and the new arrangements. This might seem depressing if you expect to be the new Mum or Dad just like that, but if you are happy to just be a significant adult, there are a wide range of possible roles that you can play, from close Aunt or Uncle, grandparent, teacher to family friend. These roles can be incredibly relevant to children and very important. As the old saying goes “It takes a village to raise a child.”
When we love someone, we want everyone else to love them and guess how often that works out? Too often the biological parent will push the new spouse and children onto a fast track, wanting everything to be ok and pushing for that to happen. Equally sometimes the stepparent will caterpult themselves into the family and set out to prove from day one that he or she is going to be a wonderful addition. Guess how often that works?
It is not at all clear what formal parenting roles, rights, responsibilities and social etiquette should exist between stepparents and their stepchildren. This often causes unexpected conflicts. For the stepchildren, it can be extremely complicated. They may be just adapting to the fact of the divorce when new partner is introduced and then Mum or Dad remarries. The length of time between the divorce and the remarriage will have a big impact on the children and how they react. The amount of time they have been given to get to know the new person before the marriage and to adapt slowly to the idea. The sex of the child also has an impact on how they will react. However, all the research shows that the younger the children are the more likely it is that they will develop a parenting type relationship with the stepparent. Stepparents need to think seriously, however, about role they want in the children’s lives before they get involved. It is not always desirable for either the children or the stepparent that their relationship should be a parental one in the strict definition of that. The children might better benefit from an entirely different type of interaction and in turn the stepparent might feel a lot more fulfilled. The children can feel extremely guilty if they like their new stepparent and conflicted. There can be all sorts of loyalty issues for them. Frequently, one or other spouse will actively or passively dislike the other post separation and divorce. Children can sense this even when nothing is said and it saddens them and causes them conflict. They may then have to spend time with a parent who is actively hurting and experience their pain as well as their own and at the same time see the other parent happily interacting with the new spouse. These are huge issues for young minds to try and sort through.
Depending on the age of the child their reactions to the new arrangements will be very different. Children who are young adults will probably not want a new parent. Teenagers in any family tend to be busy throwing off their biological parents and are unlikely to embrace the idea of another one. Younger children will undoubtedly adapt much better than older children and bond more easily. Surprisingly the age of greatest resistance to the stepparent is 9-15 years but again, that is more the idea of stepparent as parent, than the idea of stepparent as concerned adult. For young girls whose Fathers have remarried it can be very hard to see Dad in love with someone. Young girls flirt with their Dads as part of their socialisation and monopolise them but if Dad is distracted and in love then it can seem like a great loss to them. Dads need to be aware of that. It is important to remember too, that for the children the remarriage can be the loss of a dream, the dream that Mum and Dad will get back together.
The children’s attitude to the stepparent will be directly affected by the quality of the relationship they have with their biological Mum and Dad. The better their relationship and the more secure the child is the less likely they will be to feel guilt and conflict if they relate to the stepparent. We know from the research that has been done on attachment, a subject close to my heart since I have an adopted daughter, that children form their strongest attachments early in life ie the first two years. From those attachments children will feel a pervasive sense of security. The lack of that sense of security can have very serious consequences for children and is called “attachment disorder”. Attachments are somewhat reduced after the pre-school years. Knowing this, we need to look with a more flexible eye on the role of a stepparent both from what is actually possible and what is desirable.
If we compare stepfamilies to nuclear families, they will be found wanting. We need to evaluate from a different base. Susan Gamache, psychologist points out that “While adults in step families often view their experience of the stepfamily in terms of the nuclear model, children will often construct their relationship with their step parent in ways that are beyond the nuclear family model” She argues that the term “psychological parenthood” is a term better adapted to the new family situations in that it is independent of family and biology. Some stepparents function as psychological parents and, as I said previously, that is usually dependent on the age of the child, the degree of involvement of the biological parents, and the length of time over which the relationship has developed and others function as acquaintances, relative strangers. Between those two extremes, there lies a wide range of relationships that includes greater or lesser degrees of parenting. The use of the concept of psychological parenting does allow us a way of assessing the relationships that is more flexible and adaptable, allows for the wide range of the relationships possible without the unfairness inherent in the comparison with nuclear family. We now live in a world where relationships have to be negotiated rather than taken for granted. Husbands can no longer assume that they will be bread winners and their wives will stay at home or that their wives will give up their careers and relocate wherever life takes them. These things have to be negotiated even down to whether we have children or we don’t. Things our parents took for granted about their relationships can no longer be taken for granted and similarly the relationships between parents and children. Children are being raised in a variety of family structures and no one size fits all. If the children are old enough, they need to be part of the discussion about the new family. Children who have spent a long time living with just one parent will often have developed ways of co-existing that will not easily adapt to the arrival of another party. Having family meetings is a great way of exploring these sorts of things and involving the children in the discussion. Relationships with their biological parents need to be supported. Step family life challenges us to learn to communicate with our current and former partner in a way that is extremely challenging. Happily help is at hand. Facilitating such discussion by employing the services of a collaborative team or co-mediators would be a wonderful way to move forward, hopefully, to create a parenting team if that is what the children need or else to establish the parameters of each adult’s role. As in all relationships empathy, respect, a non-judgemental attitude and being open to change will go a very long way.
In some ways the ambiguity of the step parent and child relationship allows for great freedom as it is uninstitutionalized , however, that freedom does come at a price and stepfamilies are “interesting” carrying the same meaning as the old saying “May you live in interesting times”.


At the time of writing the legal rights of stepparents in Ireland and quite limited. The Law Reform Commission has formulated proposals to ensure greater legal rights however, at the time of writing these are not in force. A biological parent can appoint his or her partner/spouse to be a testamentary guardian to act in their stead in the event of their death and in that context, as a guardian such person would have legal standing before the court. Equally one could mount an application under Section 11 of the Guardianship of Infants Act seeking visitation rights in the event of a breakdown in the step family relationship but it is hard to envisage that application being successful unless the relationship was close and of long duration.

Relocation - is it really a good idea ?

Light relief in family court is somewhat unusual. Even by family law standards, however, child relocation cases tend to be particularly glum affairs. While it is fair to say that in most family law cases, no one wins, there is no doubt that this is most poignantly so in relocation cases. Post separation or divorce it is not uncommon for a spouse to decide to move away. In the majority of cases, this tends to be the female custodial parent. While such moves away can simply be a need to get away from a perceived failure they can also be proposed for good reasons. Unfortunately, there are nearly always very good reasons why the move should not be considered. In such situations fathers may perceive themselves as about to lose everything and mothers who have often spent years being the primary parent can often be impatient at having to explain themselves and their reasons for wanting to move. Frequently, a woman will want to move back to her family of origin for moral support, practical assistance or for cultural reasons. Sometimes the marriage was the only reason a woman was living in a particular location and without the marriage this woman can find herself extremely isolated. In other cases a woman may want to move because a move will afford her economic opportunities that she will not otherwise have. In circumstances where the courts seldom make direct spousal maintenance awards and where child support can stop and start, a woman may decide that economic stability begins and ends with her own efforts. Occasionally, and these cases are possibly the most difficult of all, a woman may want to relocate herself and her children because she has remarried or wishes to remarry. Of all the reasons for relocation this one tends to be the most embittering for the non-custodial, non moving parent. For the mothers who mostly have genuine reasons for wanting to move it can be very difficult to understand why they should have to explain themselves to a person who has perhaps hurt them greatly. For the fathers it can seem like they are about to lose everything.
When a marriage breaks down it is not unusual for the fact of the breakdown to serve as a wake up call to Dad. In the US such Dads are called “divorce activated dads” which is rather cruel but makes the point succinctly. Mums can often feel quite bitter about divorce activated dads, particularly when such Dads are asserting their rights. From a child’s point of view , however, it may be an unforeseen bonus to the divorce that suddenly Dad is on the scene. Whatever Dad’s motivation, his involvement with his children is to be devoutly encouraged for their sake. I have said it frequently and often – children’s self esteem will be seriously impaired if their relationship with a parent is compromised as a result of a separation or divorce. Therefore, no matter what the cost, it behoves parents to foster the love and respect of their children for each of them and to do nothing to impair that relationship. When we become parents, that is what we sign up to and it is a sacred trust. The only exception is where one or other parent is actively harming the children in an abusive way. So what happens to the non-custodial parent who slowly and painfully builds up a relationship with their children after separation and divorce? Parents who live together have the society of their children with very little effort. They interact with them seamlessly. Parents who are no longer in the house lose that casualness, that effortlessness and their relationship becomes somewhat forced, artificial. It takes time and effort on the part of that parent to build up those relationships again so as to ensure that they are still Dad and not some visiting Uncle. To do this, they need to establish new traditions with their children, get to know them in very different ways than when they lived with them and exercise understanding and patience in very testing circumstances. Picture then the vulnerability of this parent after all that effort and time who is then faced with the news that the custodial parent is relocating resulting in the inevitablility that their relationship with their children will change yet again and maybe seriously eroded. For Mum who continues to be the parent with primary responsibility and frequently borderline poverty, it can often seem a very lonely and isolating place.
Cases for relocation tend to be highly strategic in their presentation. The person seeking to establish the move as being the best option will present a glossy portfolio of pictures of the intended new residence and schools. Glowing accounts of extra curricula opportunities and brochures from fabulously well endowed schools including letters from perspective headmasters/headmistresses. In addition a strong case will be made to show how the staying parents’ rights will be barely affected because of proposals for block access. In contrast the staying parent will present detailed accounts accompanied by photos establishing the extent of their relationship with the departing children in poignant detail. Reports from the children’s schools will show how well they are doing in those schools. If a child has a special talent or interest which requires nurturing in a certain environment then much will be made of that. Relationships with friends and extended family will be emphasised. And while all this tugs at the heart strings, we need to cast a cold clinical eye on it. On close examination the custodial parent’s reasons for travelling may have little to do with the child/ren and sometimes the non-custodial parent may not have much of a real relationship with the child/children. A non-custodial parent who has not availed of an opportunity to see children when there were opportunities is in a poor position to argue. Equally, if a moving parent establishes a strong economic need to travel and the party arguing against the move has a poor track record of payment and the payments are small, they will have a difficult time of it before the court. As one West Cork Judge colourfully put it in a case of mine “A fellow would have better standing with the court if he was working and contributing financially”. Sometimes the children are of an age where the impact on parental relations is somewhat less because they can manage their own contact and travel. An analysis of the interests of all parties can sometimes allow us to decide with confidence whether or not the custodial parent should relocate or not. Bearing this in mind, it still remains the case, however, that many people have substantial reasons for relocating just as those objecting have substantial interests.
How is a Judge to decide such cases? Should there be legislation setting out the criteria by which the courts would determine these issues? Where should the burden of proof lie? In other words should the moving parent have to establish why the move is a good idea or should it be up to the parent objecting to the move to make their case? Is it desirable or even possible to have a coherent policy on this issue or should it be decided on a case by case basis? It seems fairly clear that except for the few cases where there is absolutely no good reason for moving, it is almost impossible for a Judge to get this one right. The test in Irish law is the best interests of the child/children. However, are a child’s interests served if a parent is forced to reside in a particular jurisdiction or lose custody of the child? How will an unhappy parent impact on a child? In the USA the trend has been to permit relocation based largely on the view that what is good for the parent is good for the child.* This assumption went largely unchallenged until a piece of research undertaken and published in 2003 1*. This research which was by no means conclusive and raised as many questions as it answered. The study, as reported in the media, appeared to establish that children whose parents moved away from the other parent, were significantly disadvantaged by the move.2* This in turn suggested that courts should give greater weight to the child’s separate interests in deciding such cases. But how do you focus in on a child’s interests as a determining factor? There is little guidance on this. Comprehensive research and empirical data is thin on the ground. There is the added complication that a court cannot order a parent to stay in a jurisdiction. And even if it could, would that be desirable? After all, the non custodial parent can relocate at any time with just as potentially devastating consequences. At best all a court can do is threaten to move custody if the parent relocates or in fact move custody if the parent relocates. This is to use the children as pawns in a judicial game, the game of “call the bluff”. In my view such games are not in the children’s best interests, whether it is parents manipulating their children to want to relocate or to want to stay or the court.
It remains a fact that most moves away are undertaken for economic reasons or for reasons of support. The best outcomes for children post separation and divorce are dependent on good working joint custody and access arrangements and being in reasonable financial circumstances.3* Parents who locate reasonably close to one another and who share the care and management of their children offer the best protection to one another against the threat of relocation. The more involved the non custodial parent (being the parent with whom the children are not primarily resident) is with the children the more likely he or she is to contribute to their support and education. To have effective parenting arrangements means little conflict. Parents ought to be aware that high levels of conflict have been associated with poorer physical health in adolescents. 4* In general the courts would be mistaken to assume that children will necessarily benefit from being moved away just as we cannot establish with any degree of conclusiveness that moves cause children substantial harm. So what should we do in this situation? As always we should put our children first and there is no doubt that growing in the society of both of their parents is the best outcome for children. Are such relationships fostered by taking court actions against one another or engaging in trench warfare against one another? Surely the answer must be obvious, that they are not. I can think of little more calculated to really “do for a relationship” or what is left of it than giving evidence against one another or subjecting one another to rigorous cross-examination. When a relationship breaks down there is naturally lack of trust and conflict. We know that conflict impacts seriously on the mental welfare of children and also their physical well being. We know that lack of trust will breed hostility and lack of cooperation. We know that when we are angry, our anger infects ourselves and our children and makes them and us unhappy. We need to take steps to build up the trust and minimise the conflict. A tall order! Yes it is, and it will require sacrifice and effort. It is hard to give up a grievance, just as it is hard to give up cigarettes, even knowing that both are bad for your health. However, there are people who can help. Lawyers who have trained collaboratively and in mediation and who will endeavour to work with you and your spouse towards transition and resolutions, collaborative coaches who will help you with parenting arrangements and work on communication skills and financial specialists who will give you sound non positional , family orientated economic advise. All these people working together offer you the best chance of achieving a new trust and minimizing conflict. This is your best guarantee of a successful outcome for your children and for you.
What if it still happens that even after all that collaboration, a parent still decides to relocate? Well that can happen even with the best will in the world. Families are not static. Is that a reason for running into court? Does it mean that the collaboration was unsuccessful.? Was there a complete breach of trust? Well it depends on the reasons for the relocation. Hearing these in a calm, managed environment, where both of you are held in such a way that you can actually hear one another, still offers the best hope for both of you to work through such a possible relocation and hold firm to the principles of trust and lack of conflict that are so important to the health of you and your family. If a parent is moving with the children and on top of that there is lack of trust and conflict, then the hope for a future productive relationship between the non moving parent and the children is minimal. This in turn has negative impact on the children’s health and wellbeing but also frequently on the family purse. Parents who do not see their children and have a limited relationship with them frequently stop paying towards their children’s education and support. So, maintaining the trust is, as always, key to this and going to court is one sure way to destroy trust.

*1. Fabricius,Braver & Ellman – 2003 Journal of Family Psychology. (Commonly referred to as the Braver study).
2. “Does Moving After Divorce Dmage Kids” Norval Glenn and David Blamkenhorn. Article raises some thought provoking points on the Braver Study.
3. Warshak
4. Mechanic & Hansell, 1989.

Its my party and I’ll cry if I want to: Experiencing Grief and Loss.

The pain of a relationship breakdown can be so intense that many of us imagine we are going crazy. Grief is painful. Few of us have real understanding of the grief process. Grief is a natural response to loss. Any loss can cause grief. Grief needs to be expressed and experienced. There is no right or wrong way of expressing or experiencing grief. Many of us coming to grief for the first time will expect more from ourselves, beat ourselves up because we are not dealing with this better. This sense that we should be doing better or coping better than we are, can in turn be fuelled by the remarks of well meaning , often equally impatient friends and relatives. How often do we hear “ pull yourself together”, “ you have to get on with it” and other such sentiments. These only contribute to our sense of misery and hopelessness. I remember a friend of mine some time ago criticising a relative of the deceased at a funeral because she was crying and saying that you would think she would keep it together for the sake of the deceased. I expect the deceased was beyond caring and as for others, their feelings of discomfort are for them to reflect upon. The truth is that grief can take many forms. Some of us will cry and some of us will not and it is okay either way as long as we keep in touch with ourselves and others, express the feelings and allow ourselves to experience what is happening to us. Repressed feelings will out and sometimes in very unhealthy ways. Crying does not mean we are weak, it is just a way of coping. I have found in my practice that when people gain an insight into what grief is like, they manage a lot better. Knowing what to expect is half the battle.
In the 1960s, Dr Kubler Ross wrote a ground breaking book about the stages of grief. Like all great insights, it has been carried too far and taken too literally by many. Her 5 stages were:
Denial – This is not really happening.
Anger – Why me, what did I ever do to deserve this?
Bargaining – Come back to me and I will........
Depression – I am too sad to do anything
Acceptance – I am ok with this now.
The use of the term “stages” has confused people into thinking that we can travel through this process like a well worn path from beginning to end. They ask themselves – what stage am I at now and if the answer is not what they expect, they retreat into thinking there is something wrong with them. However, grief does not tend to be experienced in stages, rather it is experienced like waves and like waves it can move back and forth as it gather momentum and then ebbs. So, sometimes we will seem to be pulling out of it and then find ourselves right back at the beginning again. It is ok and it is perfectly normal for this to happen. The important thing is to know that it can happen and that while you can move back and forth through the various stages, the peaks and troughs will get less intense as time passes. At the end of her life, Dr Kubler Ross talking about the five stages said “They were never meant to help tuck messy emotions into neat packages. They are responses to loss that many people have, but there is not a typical response to loss, as there is no typical loss. Our grieving is as individual as our lives”. So while there are elements in all grief that are recognizable – how we deal with those elements is as individual as we are.
Not everyone who grieves will experience denial or their experience of it may be very short indeed. Some will experience this stage more as a kind of numbness rather than an active denial. They will feel like they are acting in a movie of their life rather than actually experiencing it. Things will take on a dream like quality. There can be a nagging sense of unreality, an experience of emotional distance from those around us. For those who do experience denial it can often manifest in refusal to change things in the home because of an often unexpressed belief that the lost one would be upset if you were to do so and correspondingly, the unexpressed belief that he or she will return. The anger can be frightening and overwhelming and can seem irrational for example, what is the point of being angry with someone for dying but people are all the time and again it is important to realise that this is normal. In the midst of this maelstrom of emotions, there is very often guilt. Guilt at things I should have done, things I said that I should not have, things I did not say and so on. Most of us raised in Catholic households no matter where we stand now, will recognize bargaining! It can be exceedingly disconcerting for the confirmed atheist to find herself in full-scale bargaining with the Almighty in the midst of grief. Bargaining can take many forms but usually consists of promising to do something in exchange for the return of that which is lost. Sometimes we can bargain with the departing partner, or sometimes with the Almighty, it depends in each case on the loss involved. The Depression stage is experienced as an energy sapping sadness, a feeling of despair and hopelessness which crashes over us in waves and it is extremely debilitating. This is the time that no matter what stimulus came along, we would not feel like stirring ourselves. It is normal to feel this. Don’t try and hurry it along. Don’t fight it. Just experience it. We need to let it happen. Finally there is the Acceptance or Resolution when we don’t stop feeling but we are simply at peace, out the other end so to speak.
We often think of grief as an emotional process but many of us who have experienced profound grief have felt it as physical at times. Grief can actually manifest as a physical pain in the form of stomach aches, sleeplessness, choking feeling, shortness of breath, panic attack, loss of energy, weight gain or weight loss. Some of these symptoms can ambush us at the most inconvenient time, when we are driving, at work meetings and so forth. Sometimes not realising what is wrong with us, we will rush to the doctor to medicate us out of our pain. No medication will take away this pain. It will only suspend it. In order to heal you have to deal with the pain, not by repressing it rather by letting it be, acknowledging it. If you avoid the feelings then you will probably prolong the process. Unresolved grief can lead to depression, anxiety, substance abuse and health problems or all of these. The best advice is:
Face your feelings
Express your feelings – take support wherever you find it.
Look after your health – exercise and diet
Don’t let anyone tell you how to feel
Plan ahead for “triggers”.
“Triggers” may be birthdays, anniversaries, family occasions. You cannot plan for the things that will suddenly overcome you , like a smell, a forgotten photo in a book, etc. It is normal even after much recovery for significant dates, holidays or other reminders to trigger feelings related to the loss. Remember there is an upside to all this, by experiencing deep emotion and accepting it, you will grow in warmth, depth, understanding and wisdom.