Should second marriages come with a warning sticker?
This photo makes me smile. Taken at the Oxford Union debate earlier this year, it pictures Harry Benson and me. Harry is the founder of the Bristol Community Family Trust, which provides marriage preparation courses. He also works with the right-wing think tank, The Centre For Social Justice.
I am no fan of The Centre For Social Justice, but Harry and I share some common ground. We both support marriage. Like him, I also support efforts to save marriage – although by the time I become involved, it is often too late. At the Oxford Union, although I was happy to argue that the institution of marriage was “outdated”, I didn’t argue that there is no point to marriage.
Recently, however, I’ve started to move away from my usual position. Seeing new clients recently, I have noticed that a high proportion of our new instructions are from clients who have already been married at least once before, and who are determined to end a second or a third marriage.
We already know that a second marriage is slightly more likely to fail than a first marriage. Even so, the proportion of instructions is significantly higher than usual.
Is this a coincidence? Or has the recession hit such couples particularly hard? Many of these clients have told me of depleted asset values, higher debts, failed businesses and so on. Perhaps the economic downturn has affected the prospects of marriages which, statistically, have always had a higher failure rate. Perhaps these marriages would have ended anyway.
I have begun to wonder: is a second marriage genuinely worthwhile? Or should couples be advised against second marriages, partly because of the increased probability of divorce, but also because of the potentially serious fallout if the marriage does fail?
In my experience, the recipe for the breakdown of a second marriage is often as follows:
- The parties have children from a first marriage, and perhaps grandchildren too.
- They had not known one another for any great length of time before getting married.
- They have high expectations for the marriage and for their new partner, which remain unfulfilled.
- Within a short time, each party realises that the second marriage was a huge mistake.
In some cases, the breakdown of the marriage is prompted by guilt: at least one of the spouses has left a partner to start again. That guilt, coupled with a desire to be with children who may have rejected them and are now growing up without them, can sound a death knell for a marriage. Too much bad blood. Too much blame. Too much baggage.
Some second marriages break down because the gilt on the gingerbread wears off faster than it did the first time around. Once the courtship is over and the ring is on the finger, spouses stop playing the roles of Sir Lancelot and Queen Guinevere.
It also strikes me that in many cases, the parties are less dedicated to working through their problems than they might have been the first time around.
Perhaps they are bruised by past experiences, and are quicker to accept that leopards don’t change their spots, or that the marriage has indeed broken down irretrievably. Either way, they certainly seem to instruct lawyers more briskly than “first marriage” couples. Hence I am seeing broken second or even third marriages, for which the marriage duration has been that much shorter.
It gets worse.
When a second marriage breaks down, the consequences can be more acute than the parties suppose. After all, if it’s a relatively short marriage, then surely the financial settlement can’t be that bad?
Unfortunately, as I’ve explained previously, it really can be that bad. The parties are older, and their reasonable needs must be fully considered and provided for. Marriage turns two people into a legal partnership. Assets are up for division and, where needs must, assets acquired before the marriage cannot be fully ring fenced. Divorce can often require the wealthier party to make provision for the poorer party, for the rest of that person’s life. This can mean provision of a mortgage-free home and maintenance or a lump sum, sufficient to last a lifetime.
Clients are aghast when they learn that following a short marriage of say, five years, they may have to pay what they consider to be a disproportionately high settlement. In a lot of cases, clients have spent their lives prudently accruing wealth and, until the marriage, almost all had been destined for their children and grandchildren.
In many cases, a second marriage has seemed to me, an objective bystander to be an almost bizarre, and clearly avoidable, mistake.
So would I recommend marriage the second time around… ever?
I’m not so sure that I would. A marriage founded upon guilt, or upon unrealistic expectations, can founder. Once the romance has worn off, what is left?
Taking a detached, legal perspective, it is true that there are tax breaks from which older couples can benefit if they marry. These can include inheritance tax and capital gains tax exemptions. But are these enough to offset the risk?
Some of you will think that a prenuptial agreement is the answer. Again, I am not so sure. Lawyers pitted against prenups will keep getting cleverer and cleverer, no matter how the law may change. It’s their job. Older and wiser, bitten once… Surely it is better to have the freedom to walk away, than to have to test the validity of a prenup, making reasonable provision by will for a former partner to avoid a claim on an estate?
Could it be that older couples, brought up to believe that marriage is the “gold standard”, are now discovering (again) that it isn’t?
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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