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Why the new no-fault divorce law won’t be a marriage-wrecker

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Last week William Collins, a long-time married man and advocate for the institution, wrote an impassioned article in these pages explaining why he believes the new no-fault divorce law is the last straw for marriage and why it will turn even more men away from making the marriage commitment. Harry Benson of the Marriage Foundation profoundly disagrees with this and writes his rebuttal here:

APPARENTLY the new divorce law has turned marriage ‘from a contract to a trap for men’. Nothing could be further from the truth.

Some men undoubtedly feel hard done by in the divorce process, whether in unfairly limiting access to their children or in an unfair distribution of assets.

But William Collins’s proposition is that the law coming into effect some time next year will make the process so much worse that men as a whole are ill-advised to marry at all.

This is plain wrong.

Leaving aside outliers, the vast majority of people simply don’t get married or divorced on the basis of divorce law in the first place.

People marry because they want reliable love. Getting married sends a clear signal to each other about their intentions and plan. It establishes a formal new identity as a couple that all around can recognise and affirm. It gives couples the security of knowing they will be loved tomorrow and the next day.

This is why people marry. All of the magic that makes relationships work best – willingness to give without expectation, forgive when we blow it, and sacrifice for no reason – can happen only within the context of a clear long-term plan.

The consequence is that marriage is the structure that works more than it doesn’t. Get married and the family outcomes are generally a lot better: couples are more likely to stay together; their children are more likely to thrive.

In this sense, marriage is not a contract at all. Contracts are conditional. You keep it because you get something in return. You break it and you face penalties. Marriage is much more of a promise. It’s unconditional. It encourages and facilitates the best of human behaviour.

The fact that there’s been a unilateral ‘no-fault’ exit route since 1969 shows modern marriage also allows for human fragility and the fact that some relationships fail.

Does divorce law affect marriage rates? Theory and data both say no.

Marriage rates in England and Wales have been in steady decline since their peak in 1972, some three years after the current divorce law came into being. Were divorce law the driver of marriage rates, for better or worse, then one would predict an initial step change and that’s it. That’s not what has happened.

The only plausible explanation for the long-term decline of marriage is the arrival of the Pill in the 1960s. Widely available birth control took the automatic pregnancy risk out of sleeping together, made unmarried cohabiting a viable arrangement, and for the first time in human history made marriage genuinely optional. Growing social acceptance of cohabiting then explains the decline in marriage.

Does divorce law affect divorce rates? Theory and data again both say no.

When relationships go wrong, what stops a man or woman walking out straight away are constraints, things that make it hard to leave. The most obvious constraints are in the sheer difficulty of unravelling a complex life together, in working out where to go, and how on earth to manage children and divide up assets.

Breaking up means overcoming a huge body of inertia that keeps you in the same place. This is a good thing in everyday life because it goes with the grain of human behaviour. Without inertia making it hard to leave, we would split up any time we have a bad moment. The traditional marriage vows talk about ‘worse, sickness, poorer’ for a good reason.

Whether the legal process of divorce becomes ‘easier’ or ‘harder’ doesn’t interfere with this fundamental process. Couples split up because one or both spouses have decided to overcome the inertia of living together.

Whether married or not, breaking up is hard to do. This is partly why cohabitation is so risky. It’s easy to move in but hard to move out. Fragile relationships drift well beyond their sell-by date and often lead to parenthood in hope things will improve. Then they split up. 

All of the effort to make a struggling relationship work – sometimes genuine, sometimes lip service – and all of the decision to split up happens before couples get anywhere near lawyers.

It’s only then that the vast majority of couples discover what the current law says. As lawyers endlessly report, they are then astonished to discover that they can take the fast route of months if somebody takes 100 per cent of the blame or the slow route of years if they are not willing to do that.

This is a process that lawyers and couples alike hate. At the time when the decision to split has already been made and the couple need to co-operate, the system introduces a surprise sour taste at best and increased confrontation and acrimony at worst.

With the obvious exception of domestic abuse cases, I’ve never understood how one person, however unpleasant, can take 100 per cent of the blame or be 100 per cent innocent. There are two people in a relationship. All of us blow it at some stage. Nobody is perfect. I can buy 95 per cent blame or 95 per cent innocence in the most extreme cases. But not 100 per cent. Of course removing this requirement will help enormously victims of domestic abuse. 

Although in theory the new law means that one spouse can give six months notice to the marriage at any time, the reality is that this has been the case for the past fifty years. Few, if any, will pull the plug trivially. Almost all couples who break up have given it a huge amount of thought, effort and heartache. Having made the decision, the new process should be far more humane and co-operative. This is why it’s supported by almost the entire legal profession and also by champions of marriage like me. 

Finally, there is hard evidence that the new law won’t reverse the falling trend in divorce rates (which, by the way, are now at their lowest level since the 1960s). In 2006, Scotland reduced the time needed for agreed divorce from two years to one year and for contested divorce from five years to two years. After the extra year’s backlog had cleared, the pattern of Scotland’s divorces continued on exactly the same downward path of England and Wales.

People don’t marry or divorce because of divorce law. Marriage remains a promise – and not a contract – that generally produces the best family outcomes. This legal change does nothing to undermine it, for men or for women.

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Harry Benson
Harry Benson is research director for Marriage Foundation and author of Commit or Quit: The Two Year Rule and Other Rules for Romance.

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