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.