Dafydd Daniel

Ending the divorce ‘blame game’ is a mistake

Ending the divorce 'blame game' is a mistake
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“Why do people get married?” It’s a question worth asking, not least because the government has announced the biggest change to divorce law in 50 years without attempting to answer it.

Under the present law justifying reasons (adultery or unreasonable behaviour), must be given for a divorce to be finalised, usually within three to six months. Where there is no justification, the couple must live apart for at least five years, unless both spouses agree, in which case the divorce will come through after two years.

The change to the law introduces ‘no-fault’ divorce, which means that no justifying reason is required. All divorce applications will go through in six months, whether both spouses agree or not.

Supporters of the change cross the political spectrum, and advocate for it in the same terms. Current divorce law is ‘outdated’ (according to Nigel Shepherd, former chair of the Resolution think tank), and ‘out of touch with modern life’ (says justice secretary David Gauke). When Baroness Hale, president of the Supreme Court, presided over the case of Tini Owens last year, has called the law ‘unjust’. Mrs Owens must wait five years for her divorce, because her husband would not agree to it, and she could not allege adultery or unreasonable behaviour.

So thanks to the change, divorce law finally becomes, in the words of the shadow justice secretary Richard Burgon, ‘fit for the 21st century’.

But is this really something to celebrate? Or should the uncritical use of expressions like ‘modern’, ‘no-fault’, and ‘unjust’ make us suspicious of the change?

All marriage ceremonies involve the promise that one person will form a union with another. Married couples are not only saying they love another at least as much as they love themselves; they are saying their love creates a union greater than themselves as individuals. It is a union they will be committed to despite illness and old-age. It is a union that will survive the inevitable irritations and disappointments that cause the break-up of ‘ordinary’, unmarried, couples.

If the above seems right, then we need to keep blame as part of divorce.

In marriage you promise to prize another person equally with yourself within this special, all-encompassing, union. When marriages breakdown, it is neither ‘unjust’ nor unreasonable for couples to reflect critically on what’s gone wrong – in other words, they need to think about blame, as ‘acrimonious’ as that may be.

When they got married (in the case of Mr and Mrs Owens, 40 years ago), they made a life-long commitment. The reasons for entering a marriage must be clearly identified and identifiable, and so must they be when a marriage ends. Saying, “my feelings have changed,” or “I am unhappy,” are inadequate by themselves, because present feelings and current happiness should not have been the grounds for marriage in the first place.

But there is another reason why it is essential to keep blame as part of divorce. The legal change means all divorces will now be ‘no-fault’, so no-one will ever be to blame for a marriage’s breakdown. But sometimes someone is to blame, like a spouse who is violent or who commits adultery. It is not only unfair that the end of an abuser’s marriage should look the same as everyone else’s, but unjust that the spouse who is the victim should be unable to apportion blame where it belongs. To deny that person the opportunity to have guilt assigned to their offender is to deny them justice.

Apparently, the type of divorce the ‘modern’ age requires is quick, unilateral, and blameless. This means supporters of this change to the law must regard the ‘modern’ age as impatient, individualistic, and lacking any sense of guilt.

Perhaps they’re right. If so, the answer to the question, “Why do people get married,” is: “In the ‘modern’ age, they don’t.”

Instead, people have a wedding – a day which may be less transient than the marriage afterwards, given it comes with better pictures.