Better a prenup than a fearful avoidance of marriage

Years ago, as a practising Roman Catholic and a lawyer, I spoke to a canon lawyer about qualifying into his field. He told me I would contribute more by bringing the principles of my faith to mainstream law.

I have tried to do that as a family lawyer. I try hard to fight both for fairness and for a strong and healthy ongoing parenting relationship for the children.

I believe that we Catholic divorce lawyers, and I’m far from alone, do our bit to bring compassion and a degree of kindness to a field rotten with bitterness and backbiting as much between lawyers as their clients.

It’s uneasy, though, being a Catholic divorce lawyer: practising a religion which says marriage is for life while brokering an exit from it when it falls apart. One divorce solicitor dealt with this tension by taking his clients to church to offer up their ring for the needy. We might say we don’t break the marriage, we just resolve what is already broken. But I have certainly had clients to whom, if I believed them to be cruelly treated, abused or in a state of unresolvable unhappiness, I have counselled exit. And I believe that to have been right.

At other times, family law can support marriage. In fighting to make prenuptial agreements work in England and winning this battle in the Supreme Court [Radmacher (formerly Granatino) v Granatino 2010], I wanted to enable marriage for those who chose not to wed because of the state-imposed division of assets upon divorce. They were willing to marry if they could agree together, in the best of times, what would happen in the worst of times. Better, especially for the vulnerable, to marry with a prenup than not marry at all.

Similarly, I have kept marriages, broken by infidelity, together on the basis of a post-nup, agreeing what the deal would be if the couple divorced but not actually divorcing, to restore a sense of security and give them the space to rebuild trust.

One might argue that the Church does not concern itself with divorce, which is a civil matter. Divorce is nothing, meaningless, irrelevant. It is sexual relations with another that constitute a transgression.

That happens, inexorably, though. There’s no more "get thee to a nunnery" when your family falls apart. People live longer and they have life after divorce, families, children, loves, lives that they want to live in communion with God. This is our reality, in many cases a happy and joyful one, full of the celebration of life, of regeneration, of hope, of the irrepressible human urge to create and to love.

Does it make sense for the Church to thin its ranks by pushing away those who worship with the deep spirit of the faith albeit not the letter of its currently prevailing law? Pope Francis tells us it does not. I hope a groundswell gathers, behind him, of realism, compassion and inclusion and makes a place for all those who want to be at the table.

Ayesha Vardag is president of family law firm Vardags