Andrew Tettenborn: Divorce on demand makes breaking up nastier, not nicer

A P Herbert’s Holy Deadlock in 1934 adroitly, and rightly, lampooned our pre-1960s divorce law for simultaneously making a high-minded demand for evidence of misconduct in order to obtain a divorce, while in practice nurturing a curious industry of histrionic hanky-panky in Brighton hotel rooms to satisfy the demand it had itself created. In 1969 all this changed. The present rule was introduced to deal with the problem. It is essentially this. A decree nisi comes immediately if you show adultery, desertion or unreasonable conduct ending any legitimate expectation of cohabitation; but, importantly, you can alternatively get a decree by simply proving two years’ separation with the other spouse’s agreement, or five without it.

However, a report solemnly sponsored by the Nuffield Foundation now says that even this is not good enough. Vociferously supported by The Times, the family lawyers’ association Resolution and a number of senior judges, it advocates suppressing the concepts of fault (and separation) completely, and basing all divorce on a simple filing of notice by either party, followed by a confirmation after six months.

At first reading, it must be admitted that this document – which is surprisingly well-written for an academic report – exudes sweet reasonableness. As it is, fault is often alleged by the impatient and rarely in practice denied; judges rubber-stamp the divorce, if not the money division; the marriage is almost certainly beyond saving anyway; and marriage does not have the totemic significance it once had. So why not regularise things and honestly allow either party to end the charade?

Actually, there are several reasons why this is not quite such an obvious solution as it looks.

One is that many divorces where fault is alleged, even if technically unopposed, are not necessarily willingly accepted. As the report admits, respondents against whom fault is alleged often disagree with what is alleged against them and would prefer the marriage to continue, but they are (wisely) advised by their lawyers not to argue because the game is not worth the candle. While no doubt difficult to suppress, this is not a healthy development. Whatever you might think of divorce by consent, a proposal that the state should in future not merely tolerate divorce on demand but legitimise the practice of unilateral divorce on six months’ notice ought to give you pause.



Furthermore, while the report might be right in suggesting that the six-month ‘cooling-off’ period would give a chance of reconciliation, it might equally provide opportunities for bullying (‘I want to see a friend tonight: don’t ask who. You’ll have to pick up the kids and feed them. Oh, and watch your step. Just remember I gave notice five months ago; I can make things final next month if I choose to’).

Thirdly, the argument that matrimony does not have the respect it did, and that simple cohabitation now carries little if any opprobrium for most people, cuts both ways. True, it could support the idea that the technical status of being married should be regarded as no big deal, with the state standing majestically back when one or other party feels dissatisfied and wants out. But it could equally justify making the termination of a marriage (which after all began with lifetime vows) more difficult. After all, at present if a party simply walks out he or she is now under few disadvantages even if the marriage remains in being. Apart from a degree of lost respectability in some circles (especially if he or she immediately moves in with someone else), the only serious one is the inability to get a property adjustment order without a decree. If so, little injustice is done by insisting that he or she wait two, or even five, years before the state finally consents to the untying of the knot. Indeed, the denial of a judicial property adjustment until that time might be a good thing in itself. It is by no means clear that someone guilty of no fault should face financial upheaval at best, and serious impoverishment at worst, at short notice at the mere will of the other party. On the contrary: some might think a good deal of the idea that if you choose to walk out on a whim, that’s fine, but you do it at your own risk and expense.

But there is an even more obvious expanse of wood obscured by the luxuriant trees of this proposal. If enacted, what would it actually leave of marriage? Just think. As it is, marriage has surprisingly few specific features recognised by the state. Apart from a residual relief from inheritance tax, its two most important characteristics are its permanence, and the possibility of court-ordered financial protection in the event of break-up. If, as seems likely, the courts gain powers to apportion property on the break-up of informal relationships on a similar basis to their powers on divorce, the latter goes. And now what do we have? A proposal to remove the permanence too. The result seems inexorable: marriage will morph into a sort of contract for cohabitation, terminable formally with six months’ notice, and informally with none. The institution we now know, of lifelong love and commitment, looking after one another for better or worse, of raising children in a stable home, is to be left with only the doubtful powers of organised religion and personal enthusiasm to support it. The state, which ought to have every interest in promoting it and providing a framework for serious long-term commitment for those who want it, will simply regard this as too much like hard work and withdraw into the shadows. As far as it is concerned, matrimony will end up a mere simulacrum, like the grin on the Cheshire cat once the beast itself has vanished into the penumbra. And as readers of Alice’s Adventures in Wonderland will remember, even the disembodied grin disappeared in the end.

Andrew Tettenborn

  • disqus_N9Jawtu8Uw

    So Her Majesty the Queen and Prince Philip just celebrated their 70th wedding anniversary and Her own government clearly treats marriage with total contempt which is actually the same as hatred ….. How does that work? (Ordinary British people like me are just left completely bemused by a government that is so against the British way of life and therefore anti-British).

    • SimonToo

      Contempt is contempt, hatred is hatred. The pretence that every unenthusiastically positive response is “hatred” is a massive deceit of our time.

      • disqus_N9Jawtu8Uw

        No Simon, Contempt cannot be confused for toleration when it is not toleration at all. To hold someone in contempt is to be intolerant and so it really is a form of hatred.

        • SimonToo

          No, intolerance is intolerance. If it was hatred, it would be called hatred. They are not synonyms. You are utterly wrong.

          • disqus_N9Jawtu8Uw

            Sadly for you I’m not “utterly” wrong and you clearly haven’t thought any of this logically through. Sad really.

          • SimonToo

            You are abusing the English language by attempting to distort the meanings of words. You are utterly wrong.
            .
            If you do consider the meanings of words to be so mutable, how can you actually apply any concept of logic to your opinions?

    • mudlark1

      Yet many politicians continue to get married – even Ed Milliband ended up belatedly tying the knot when he became Labour leader. The state depends on a critical mass of people to remain married in order to support those whose family lives are disintegrating. Fragmenting families lead to a higher dependence on benefits and even homelessness but you won’t catch our hypocritical MP’s acknowledging the importance of marriage to society.

  • Murial2468

    Can we have our “diversity” too please?

    We who do not believe in divorce and who believe that marriage is for man and woman should be given back what marriage was. Call it another name if we must.

    It would be preferable not to take the same state registration of sexual union when the state regards those vows as equally applicable to same-sex pairings who cannot have functional sexual intercourse and regard as non-binding.

    “The social evils of easy divorce are so obvious…One of the most far-reaching of these evils is the encouragement of lower conceptions of conjugal fidelity; for when a person regards the taking of a new spouse as entirely lawful for a multitude of more or less slight reasons, his sense of obligation toward his present partner cannot be very strong or very deep. Simultaneous cannot seem much worse than successive plurality of sexual relations. The average husband and wife who become divorced for a trivial cause are less faithful to each other during their temporary union than the average couple who do not believe in divorce. Similarly, easy divorce gives an impetus to illicit relations between the unmarried, inasmuch as it tends to destroy the association in the popular consciousness between sexual intercourse and the enduring union of one man with one woman. Another evil is the increase in the number of hasty and unfortunate marriages among persons who look forward to divorce as an easy remedy for present mistakes. ” https://www.catholic.com/encyclopedia/history-of-marriage

  • LoveMeIamALiberal

    Those pushing these proposals are being dishonest in claiming it is for no fault divorce as we already have this; their aim is to destroy the institution of marriage by undermining the seriousness with which it’s treated. I have sympathy where both parties want a divorce and have to wait two years; by all mean shorten the separation period to six months where both parties agree. But if you want to break your contractual commitments without good cause or the other party’s agreement then you should take the consequences of reneging on your legal obligations.

  • l jess

    This is one of the best reasons for men going MGTOW. – Get married and have your life destroyed in six months. Better off walking away and forget any future children than deal with this mess.

    • Timmy

      Marriage is a trap for men. Men should not get married.

      MGTOW.com

  • Flaketime

    There is of course a different point of view in this, and although this point of view is not altogether shared by me I shall endeavour to illustrate it.

    It is a fairly simple point more of expediency and resignation. If two people no longer wish to be married and live together then how is the law to stop them?

    They have a point. This piece here is I have to say more than a little starry eyed and fails to address fault divorce. People do need to escape abusive relationships or adulterous ones and should not be made to live with that fear and loathing of the other person in the house.

    Equally no one can prevent one of the parties leaving the other, and setting up a home regardless of whether the marriage is still intact.

    So far has the law and politicians gone down this course that they have forgotten about the option of the couples to stay together and if a party wishes to contest a divorce they have to appear in open court and it costs a fortune. This aspect of the law rapidly needs updating so that the objecting party is dealt with much more sympathetically.

    In the case of Tini & Hugh Owens, the case reached the Supreme Court before a judge refused her permission to divorce on the grounds of a ‘loveless marriage’.

    Who here reading this would agree this is a reasonable and desirable way to proceed? How many people can even afford to do this and why is it so expensive and difficult to try to preserve a marriage?

    There are plenty of things though which can be done to reduce the divorce rate, here are a few ideas.

    Stop incentivising women to divorce.

    Currently the stats are that 72% of divorces are started by women, unsurprising really as the UK has the most unfair and biased divorce settlements system of anywhere in the civilised world. We sometimes hear the howls of disapproval when a Muslim man returns to his country with the kids and we see the system in reverse, yet no one seems willing to address our own unfairness.

    Women are travelling from all over the world to divorce in Britain, if that doesn’t tell you something about a broken system then nothing will.

    Show the states disapproval by fining the parties involved.

    A 10% fine of the marital assets to be levied equally save in cases where criminal fault had been proved when the offending party pays.

    Oh but that would impoverish people cried one last time I suggested this – well that’s the idea! It’s not a fine if it doesn’t impoverish offenders, and why should I the tax payer pick up the inevitable bill which is going to result post divorce?

    Tying judges hands on access

    Force reluctant judges to issue appropriate penalties to women who refuse to allow their ex to see their children.
    Each month should be maintenance free for the victim parent, and the offender should receive no uptick in benefits payments. After three months curfew with a tag, and after six month a period of imprisonment no less than one month.
    Make these sentences public to prevent and deter. Men should not be forced to scale public buildings as a protest that they haven’t seen their children for years while hopeless limp wristed judges carry on warning mothers while never carrying out their empty threats.

    An article from the Telegraph along similar lines.

    http://www.telegraph.co.uk/men/relationships/10357829/Why-do-women-initiate-divorce-more-than-men.html

    Don’t blame the government over this, it’s the lawyers, judges & pressure groups.

  • HardcastleCraggs

    We’re getting closer to sharia law. I understand all the man has to do to get a divorce is say to his wife “I divorce you” three times.

    What the woman does, I’ve no idea.

    • UKCitizen

      Is that a bit like clicking your heels 3 times and saying “there’s no place like Mecca!”

    • Sean Toddington

      We aren’t getting close to Sharia law or anything like it. If you really want to know I can tell you what happens under what passes for Sahria law as it is practiced in this country.

      If the couple were actually married under English law the woman has, in theory anyway, the protections that gives her. Many Muslim men to avoid this do not actually enter into a civil marriage. That means that following a Sharia divorce the woman is left in a pretty dire position, often reinforced by social isolation and poor spoken English.

  • Until the legislation allowing “gay marriages”, the strange thing about marriage, like many other things in life, was that those who could get married didn’t bother whilst those that couldn’t get married wanted to!
    Certainly there now seems little point in marriage, a formal legal agreement between the couple on financial issues would seem to be preferable.

  • Tricia

    When Cameron forced Same Sex “Marriage” on us with not a mention in the Manifesto, we were told that marriage is all about 2 people loving one another and how awful to prevent two people from doing so just because they were the same sex. Wrong! Marriage has always been about far more than “love” – it has been about dynasty in families, fidelity in relationship, forming genealogical heritage and perseverance in hard times.
    In fact we now have 2 different types of marriage – one where adultery is cause for divorce and one that does not include adultery as there is no consummation. This new move is to equalise marriage by taking out adultery and therefore robbing children of the stability that marriage offered. Even though they know that statistics show that children fare better with their married mother and father!
    The marriage we had in this country for over 1500 years was Christian marriage. Christian marriage is between one man and one woman forsaking all others, to love and to cherish until death parts them. Adultery is the only reason why divorce is permissible. The wife and children were protected by law against being deserted and men were given the responsibility of caring for their wife and children.
    There is only one way that people of faith can respond to this attack on society and that is to consider their marriage carefully and choose Christian marriage. Christian marriage will be different and distinct and will shine like a beacon in the dark world we have made.

    • Flaketime

      “with not a mention in the Manifesto”

      Careful with that one, because the sneaky sod put it into the manifesto about 6 hours before the polls open and now swears blind it was in the manifesto. To the rest of us and all intents and purposes though, it wasn’t.

  • UKCitizen

    As much as making vows seems like a bit more than just signing a registry, how many actually believe in what is behind those vows anymore. There is no religious or moral societal contract holding anybody to what they say, so why bother.
    The only way to save the concept of marriage is to make it a legal and financial commitment for both parties with a proper contract enforceable by real criminal law.
    No bias divorce courts as we are now all equal and support through tax and child support to make it worthwhile sticking with it and having a family. If you have children then the carer should be entitled to transfer their full tax allowance to their partner.
    Whoever walks away is entitled to and responsible for, half of everything accrued during the marriage or legally agreed to be contributed to the marriage.