On Grief and Family Law

There is a thing that happens in family law that we do not speak about with nearly enough directness in practice, and I have come to believe it is responsible for more intractable matters, more failed mediations, more litigation that should never have reached a courtroom, than almost any other single factor.

It is not the complexity of the asset pool. It is not a difficult opposing solicitor, though that is a variable we spend considerable energy managing. It is not even the parenting dispute, as fraught as those become.

It is unacknowledged grief.

Not grief in the loose, colloquial sense. I mean the specific and profound loss of the imagined future — the life a person had been building toward, consciously or not, that has ceased to exist not through death or disaster but through the dissolution of the relationship around which it was organised. The retirement they had assumed. The family Christmas and summer holidays. The person they expected to grow old beside. The version of themselves, as a parent living under the same roof as their children every night, that they will never be again.

This is a distinct loss from the relationship itself, and it is one that the legal process has no mechanism for receiving. We are not trained as grief counsellors, nor should we be. But after nearly a decade in this practice, I have come to think that the capacity to recognise this loss in a client — to name it, even briefly, and to understand what it is doing to their capacity to reason and instruct — is one of the most practically useful skills a family lawyer can develop.

Because when it goes unrecognised, it does not disappear. It migrates.

The client who cannot settle a matter that, on the papers, has a clear and reasonable resolution is not, in my experience, being unreasonable in any simple sense. They are a person standing in the wreckage of the life they were living last year, unable to see forward from where they are standing. The settlement we are asking them to accept requires them to imagine a future. And they cannot yet see one. They can only see the destruction immediately in front of them — the house that will be sold, the schedule that reduces them to a part-time parent, the superannuation split that makes the end of the marriage arithmetically legible in a way that is almost physically painful to confront.

We ask these clients to make rational, forward-looking decisions from inside that experience. We present them with financial analyses and proposed consent orders and risk assessments about likely trial outcomes. And we are genuinely puzzled when they resist, or when they take a position that serves neither their legal interests nor, on any objective view, themselves.

But the impediment is not irrationality. It is that they cannot see the shore from where they are standing. They are too far in the water.

Property division makes this worse in a way that is worth understanding clearly, because it carries a particular cruelty that purely emotional losses do not.

For the duration of a marriage or long relationship, the jointly accumulated assets occupy a specific place in a person's sense of their own life. The home, the savings, the superannuation, the investment portfolio — these were built together, yes, but they were also experienced as 'mine'. Not exclusively, not consciously in opposition to the other party, but as part of the fabric of a shared life that felt, in its totality, like something belonging to both and therefore to each. That conflation is entirely natural. It is how most people experience a functioning partnership.

Separation ruptures it with a particular violence. Because suddenly those same assets — the ones that felt like yours, that you worked for, that you organised your financial life around — are subject to division. And the person receiving a share of them is not an abstraction. It is someone you may currently be struggling to be in the same room with. Someone toward whom you may feel profound hurt, or anger, or betrayal. The experience, viscerally, is of having something taken from you by someone who has already taken enough.

The law, of course, sees it differently. Those assets were never entirely yours to begin with. They were always jointly held, jointly attributed, and always subject, upon separation, to assessment under a framework that recognises both parties' contributions. What feels like loss is, in a legal sense, a correction to a perception that the intact relationship had sustained. But that is an extraordinarily difficult thing to reconcile when you are simultaneously grieving, when your financial security has been halved, and when the resources you had previously relied upon to continue building have been reduced in ways that will take years to recover from.

This is not a failure of logic on the client's part. It is a collision between the emotional reality of how shared assets are experienced and the legal reality of what they always were. Recognising that collision — naming it — helps. It does not dissolve the hardship, but it can shift a client's understanding of what is actually happening, which is the first step toward engaging with it productively rather than simply resisting it.

The practical consequences for the conduct of a matter are significant, and I think we underestimate them.

A client in acute, unprocessed grief is not able to give coherent instructions consistently. Their position shifts with their emotional state. They will agree to something in conference and resile from it by the following morning. They escalate correspondence because engagement — even hostile engagement — maintains some form of connection to the person who has left, which is preferable to the silence that means it is truly over. They litigate assets of modest financial value with disproportionate intensity because those assets have become proxies for something the legal process cannot actually adjudicate: who is to blame, who suffered more, whose version of the marriage was the true one.

None of this is cynical. It is deeply human. But as their lawyer, failing to see it for what it is means we spend considerable resources — theirs and the court's — managing the symptoms rather than understanding the cause. We draft letters in response to positions that will shift. We prepare for mediations the client is not yet capable of using productively. We advise on litigation risk to someone who, on some level, does not especially want the litigation to end.

What I have found useful, over time, is not to attempt to do the emotional work myself — that is not my role and I am not equipped for it — but to be direct about what I am observing and what it means for the matter. To say, plainly: I think there are things happening for you right now that are making it very difficult to see what a good outcome actually looks like.

Take a breath to sidebar the negotiations for a moment to recognise and validate their grief, their hurt - the loss. Because it is loss, and in these moments clients will be scrambling to offset that loss, in some measure. In my experience, this is far more useful than continuing to treat the matter as though it is about the legal issues, when it is plainly about something else.

And it changes the trajectory. A client who has been given permission to grieve — who has been told by their lawyer that the loss is real, that it makes sense they cannot yet see forward, and that there is support available to help them get to a position from which they can actually instruct — is a different client to work with. They become capable, eventually, of the kind of settled, clear-eyed engagement that allows a matter to resolve.

We are not trained to absorb this. The system is not designed for it. And there is a professional habit, understandable and deeply ingrained, of treating the emotional dimensions of a client's experience as background noise — as something the client brings with them that we work around, rather than something that directly shapes the legal matter and must therefore be engaged with, at least briefly and at least honestly.

I would gently suggest that habit costs us more than we realise. It costs our clients more.

The intractable matters — the ones that grind on, that survive every reasonable intervention, that settle eventually at a fraction of the cost they have generated in legal fees and human attrition — are very often not legally complex. They are emotionally unresolved. And the earlier that is recognised and named, the more we can do about it.

A decade of practice has taught me that the most useful thing I can sometimes do for a client is not a forensic analysis of their balance sheet. It is to sit with them for a moment in the reality of what they have lost, to tell them that it is a legitimate and serious loss, and to explain that the work of this process — the property settlement, the parenting arrangements, the formal ending of the legal relationship — is the work of building something new from that loss.

They cannot do that work from the middle of the grief. But they can, with time and the right support, get to somewhere from which they can see it.

Our job, in part, is to help them get there.

About the Author

Ashleigh Morris is a Melbourne barrister practising in family law, with a particular focus on contested hearings, trials, and complex parenting and property litigation. She is regularly briefed in matters involving difficult factual disputes, urgent applications, relocation cases, enforcement proceedings, and cases requiring strong cross-examination and strategic advocacy. She appears in the Federal Circuit and Family Court of Australia across metropolitan and regional registries.

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