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Andrew Tettenborn: Divorce is not a pick-and-mix affair


The basics of English divorce law are crudely these: separate for five years and the decree comes by rubber stamp (two years if the other party consents), or you can get an earlier order by proving misconduct. The result of a case in the Court of Appeal last week suggests that it has got the right balance.

An elderly wife of a wealthy but even older husband complained that her married life was boring; she had had an affair or two, and regularly had petty arguments with her husband (for the details, if you care to, you can plough through the official report: it’s like something out of a sitcom). Could she, therefore, have a divorce, please? This was like a million other cases, but with a twist: the husband, instead of agreeing and going on to argue about the money, said No. He was guilty of no misconduct and wanted to stay married. The judge decided that the husband was right and quite logically told the wife she would have to move out and wait five years. Three judges in the Court of Appeal had to agree.

All well? No. After piously intoning that it was not for them to take sides in political argument over the divorce law, they proceeded to do just that. Effectively, they said, in no uncertain terms, the law was out of date and needed to be brought kicking and screaming into the twenty-first century by allowing divorce on demand for those who for any reason wanted to be married no longer.

Not surprisingly, these comments were fawned over by the great and the good. Rich, fashionable celebrity divorce lawyer Ayesha Vardag gushingly approved, and could not resist saying that the divorce law the judges applied was drafted when homosexuality and abortion were still illegal (which may have been technically true as regards the time of drafting, but by the time it was passed in 1969 both illegalities had been abolished two years earlier). Equally unsurprising was the pronouncement from a worthy professor of socio-legal studies that the actual result they reached in applying the law of the land would have a “deeply negative effect” and was a “deeply regrettable backward step.”

This is disturbing.

For one thing, there seem to be some double standards here. Imagine the boot is on the other foot. A judge, pronouncing a no-fault divorce after five years’ separation, comments that he acts without any enthusiasm, since it is obvious that marriage is for life and should only be terminated for serious misbehaviour like adultery or cruelty. What would happen? The Guardian and the BBC would go ape about out-of-touch judges; coachloads of professors and trendy commentators would back them up; and postmen at the Judicial Conduct Investigations Office would be reporting sick with back-strain. (Remember the serious reprimand in 2013 to the High Court judge who had the temerity openly to support marriage?).

For another, whatever happened to judicial independence? True, you don’t readily become a family judge these days unless you imbibe the belief that marriage is an outdated idea whose proponents need to be humoured but which shouldn’t be allowed to get in the way of grown-up relationships (“Joanna Bloggs QC as a judge? Hm … blatantly reactionary attitudes on marriage … doesn’t she remember a thing from university? As Chair of this transparent appointments committee I say we can’t risk it”). But even if you think it you don’t say it. Reticence on questions of vital and controversial social policy ought to remain second nature to our judges.

Furthermore, the case for divorce on demand is not open-and-shut, as suggested by the world-weary mantra “This marriage is dead: fault is irrelevant: just end it”. Indeed, it contains an obvious inconsistency.

Progressives accept, and indeed stress, that there is a difference between cohabitation and marriage: cohabitation exists (they say in their charming non-judgmental way) precisely as an acceptable way to avoid the commitment that goes with marriage. Marriage equals commitment: cohabitation doesn’t: if you don’t want the commitment, cohabit. But if that is right the whole case for divorce on demand collapses: it amounts to saying that commitment is irrelevant and marriage, like cohabitation, ought simply to be a case of “I’ll live with you until I don’t feel like it.”

Nor need one feel enormous sympathy for a wife supposedly “trapped in a loveless marriage”, as the Guardian put it. If we refuse her a quickie divorce, what does she actually lose? Two things. One is a modicum of social respectability: the ability to marry, rather than cohabit with, a third party she takes a fancy to. The other is the ability to upend immediately and on a whim the financial arrangements of many years. Does she deserve either, as regards a husband who has done no wrong? The answer must be a resounding No.

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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