The ability to leave when one wants to doesn’t degrade the institution of marriageby Stephanie Boland / July 25, 2018 / Leave a comment
It may seem perverse to argue that it ought to be easier to leave an institution into which one, ostensibly, should enter for life. That is, of course, until one learns the exact nature of Britain’s bizarre divorce laws.
Take Tini Owens, for instance, a 66-year-old woman who has been petitioning for a divorce from her husband of 40 years. The predicament is relatively simple: Owens says that she feels locked in a “loveless” marriage. With her children now grown up, she is ready to end the relationship which has brought her long years of unhappiness.
Her husband disagrees. He believes they have years of happiness left together, and does not want a divorce.
A series of lawyers are on her side. The law, for now, is on his.
What the law says
To get a divorce in England or Wales, a couple must fulfil the following criteria: They must have been married for at least a year. They must believe that the marriage has irrevocably broken down. They must have either an instance of adultery (unless they have continued to live together for six months or longer since the adultery was revealed), unreasonable behaviour (which might include physical or verbal abuse, drug use or “refusing to pay for housekeeping”) or desertion (for at least two years in the past 2.5).
A divorce may also be granted if the couple has been separated for two years (as long as both consent to the divorce) or five years (if one party does not).
The result is absurd cases like Owens, in which a clearly unhappy woman comes to court bearing 27 examples of the ways in which she believes her husband has shown unreasonable behaviour, gains the sympathy of several senior judges—Baroness Hale is just one person who has called the laws “unjust”—but cannot, by law, be granted a divorce.
Despite appealing to the Supreme Court, Owens has been told that she cannot be divorce until 2020, when she and her husband will have lived apart for five years.
Dismissing her appeal, Lord Wilson asked if “the law which still governs … divorce remains satisfactory.”
Her solicitor, Simon Beccle, said that the court has missed an opportunity “to move case law on after over 40 years.”
A legal relationship
There are other, more nakedly absurd, caveats to the law. Only heterosexual sex, for instance, counts as adultery —a state of affairs which echoes a truth which today seems alien: that adultery is prohibited not because it breaches trust, but because it might lead to the conception of children whose parentage cannot be guaranteed.
These days, we may mostly view marriage as being about loyalty, romantic love, and the opportunity to revel in the sort of everyday intimacy which can blossom when one gives oneself over to something—a relationship—larger than oneself.
But the marriage in law has always been about something else: property, and the legal entanglement of two lives. When a couple stands in front of their friends and family and declares themselves a unit of their own, they also declare themselves before the law.
Marriage is as much about a duty to support each other financially as it is about the accumulation of shared memory; as much about inheritance tax as it is about the thousandth cup of tea placed on a bedside table.
Why commitment matters
Commitment, of course, does not require the involvement of a court—take it from somebody whose parents, together since school, did not marry until they were in their mid-30s—and there is no guarantee that a couple which is married will be more committed than one which is not. To become a social unit whose rights society is obliged to honour, however, does.
It is the combination of these two that makes a marriage.
Some campaigners , including some religious groups, warn that making divorce easier to obtain will degrade this. The privileges of marriage, the thinking goes, are granted precisely because the couple intends to uphold them long-term; being able to walk away easily and skip from legal pairing to legal pairing undermines the seriousness of each and every pair.
Yet not only do few people leave marriages frivolously—and of those who do, we might ask whether marriage was quite for them in the first place—but it is surely equally degrading to marriage to force people to stay who have no desire or intention to honour the things it entails.
As family lawyer Nigel Shepherd put it earlier this year, “What strengthens marriage is people committing to it.”
“If it’s over I don’t think making people jump through hoops and making them blame each other helps to keep people together.”
If marriage is both a legal and social state, demanding the former when the latter is in tatters is senseless.
The law must change
The 1969 Divorce Reform Act seemed to recognise this, allowing for the first time couples to divorce not for reasons of insanity, drunkenness and desertion but because the things that made the marriage a marriage had been lost.
It is precisely because marriage is so significant that it ought to be easier to quit it, in much the same way that it is the seriousness of one’s body bearing—and parenting—a child that makes access to abortion services such a cornerstone of women’s rights.
It’s now time for another reform—one which does not require someone to stay legally conjoined long past the point they wish to be. One which recognises that it should be easier to change one’s mind not because the commitment does not matter, but because it does.