No-Fault Divorce means No-Commitment Marriage

When couples marry, they commit to care for each other for the rest of their lives, not until they have an argument. Let’s take them at their word and resist the introduction of no-fault divorce.

 

Last week it emerged that a Judge in Oxford had done something astonishing. To the dismay of many in the legal profession and the media Judge Robin Toulson QC defended the permanence of marriage. The judgement was surprising in a country that considers divorce morally trivial: nearly a half of all UK marriages break down this way.

Mrs Owen had betrayed her husband with another man after 39 years of marriage. Mr Owen wasn’t cuckolded calmly, making ‘stinging remarks’ about the affair to her in public. His wife was distressed by his behaviour and left him. They have lived separately since 2015 and Mrs Owens applied to divorce her husband.

Refusing the application, Judge Robin Toulson QC stated that Mrs Owens’ allegations against Mr Owens “exaggerated the context and seriousness of [his behaviour] to a significant degree” and were “at best flimsy”, “minor altercations of a kind to be expected in a marriage” and “an exercise in scraping the barrel” for excuses to divorce.

The Judge’s assessment was laudable: that the couple “still have a few years of old age together” in the marriage, and his implication that they could heal their divisions if they only tried. There are already calls, however, for the law to be reformed to prevent this from happening again, and to remove any remaining barriers to divorce on demand.

When we look at the vows people swear at the altar – in theory, rational adults who know what they’re saying – it’s clear that marriage is not something that should be ended lightly. This was best explained by a priest at a wedding I attended some time ago and which has stayed with me ever since.

He pointed out that the man and woman hadn’t come there because they find each other attractive, although we’d hope they do. They are not there even because they like each other, though again, this helps. They are there because they each love the other so much that they wish to dedicate their lives, freely and unconditionally, to each other’s happiness.

When a marriage takes place, the spouses commit to love each other as family, to care for the other until death because that person is so important to them. To break this vow is to cast that person aside, saying to them “I don’t care about you, you are not important, you have become irrelevant to me”. It’s worse than disowning one’s father or sister.

Imagine the cruelty of serial philanderers who cast away wife after wife in this way, despite the assurances of stability and family he has given them. This is an appalling way to treat a fellow human and an unimaginable way to act towards someone you claim to have cared for.

The promise of marriage is one of stability. This is why people marry. The easier it is to break this promise, the less significant marriage becomes. As a result people enter into marriages more casually and leave them over more trivial disagreements. As the vow of stability and permanence is eroded the act of marriage loses its very purpose, becoming an expensive Valentine’s Day. We are left with nothing, no way truly to commit to loyalty beyond the strength of our feelings at any given time. So we don’t.

Wedding_photographer_preparing_shot.jpg

Marriage is not about you, or your big day. It’s about caring for you spouse and children for the rest of your life. (Mike Baird, CC BY 2.0)

The deliberate destruction of stability and the safe, nurturing environment of the family is especially damaging if the marriage includes children. Forcing children through the trauma of custody battles or harming their development by leaving them with a single parent should weigh heavily on our consciences. It goes without saying there are many excellent single mothers and fathers who work hard and succeed in raising their children just as well or better than some from unbroken homes. But it’s wilfully blind to deny that this is more difficult, that single parents are battling against the odds, and that children from single parent families are on average worse off.

Sociologists McLanahan and Sandefur summarize their research into the effects of marital breakdown on children by writing: “Children who grow up in a household with only one biological parent are worse off, on average, than children who grow up in a household with both of their biological parents, regardless of the parents’ race or educational background, regardless of whether the parents are married when the child is born, and regardless of whether the resident parent remarries.”

Given the seriousness of the consequences, emotional and practical, of the destruction of the family unit through divorce is it really too much to ask that the law encourage couples to try to stay together when there is a prospect of saving the marriage?

Let’s look at this with less passion, through a legal lens:

Of their own free will, party A and party B have undertaken to love and support one another, unconditionally, and until death. Unless there is a prior breach by the other party (for example through violence or infidelity) it is immoral and should be illegal for either party to break this vow.

Where a parent adopts a child a similar commitment is made. It would seem abhorrent to us if that parent were to decide subsequently that they do not like the child and so renege on this commitment. It is equally wrong for a spouse to renege on a similar commitment to their partner. It really is that simple.

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Adam Wawrzynski practices law in London.

Enjoyed this article? Subscribe to the Quad. The featured photo is by Jeff Belmonte and used under a Creative Commons Attribution 2.0 Generic licence.

2 thoughts on “No-Fault Divorce means No-Commitment Marriage

  1. I don’t think people should necessarily stay together for the children. If you’re in a toxic relationship I’d out it! Loved the post! It made me think of the words we easily speak at the altar and then can disregard with the signing of ten divorce papers and court

    Like

  2. Your moral arguments against no-fault divorce are well set out, even if not everyone will agree on them.

    However, the analysis you present as a dispassionate legal one is necessarily informed by those moral arguments—you should not imply that it is neutral.

    The result of the moral element is that the argument is circular, in that it proceeds from the premise that the marriage agreement is unconditional and lifelong, which is the proposition you are seeking to demonstrate.

    That premise does not hold good for every married couple, who may for example marry on the shared understanding that they would not wish to continue their relationship if it became toxic. Moreover, it is itself undermined by the ready availability of modern divorce – couples who marry nowadays do so knowing that the marriage may be undone in accordance with the law.

    Divorce is what the couple makes of it. I appreciate that one party can make it extremely unpleasant for the other, but the same is true of a marriage. Being comprised of two broadly equal parties (necessarily both adults), it is of an entirely different character from the abandonment of a child, adopted or otherwise, who is in a position of financial and emotional dependence.

    Thank you for your interesting article. I’d be interested in your response and happy to be persuaded of your position.

    Like

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