Would no-fault divorce reduce marriage to a ‘tenancy agreement’?
By:5 commentsOctober 23, 2017
“Will you marry me?”
It’s a simple question, that we come across all the time, but what does it actually mean? Just what is ‘marriage’?
Correct me if I’m wrong, but so far as I’m aware there is no definition of ‘marriage’ in English law. Certainly, it is not defined in the Marriage Act 1949, which is still the main piece of legislation setting out the law of marriage in this country. It seems that the legislators assumed that we all knew what was meant by the term, and therefore saw no need to define it.
Which leaves us with the dictionary definition of the term. A Google search comes up with: “the legally or formally recognized union of two people as partners in a personal relationship”. That’s pretty non-specific, in that it does not explain at all what, if any, obligations marriage creates between the parties. Could the answer simply be that marriage is a legal or recognised union of two people, but otherwise means whatever the parties want it to mean?
These thoughts were prompted by an article I came across in my news feed the other day. The article was on the Christian Institute website, and was entitled; “‘No-fault divorce could reduce marriage to a tenancy agreement’”. It refers to a debate on BBC Radio 2 last week in which the Campaign Director of the Coalition for Marriage Thomas Pascoe said that the ‘liberalising’ of divorce law by the introduction of no-fault divorce would fundamentally change what marriage is, reducing it to “essentially a tenancy agreement”.
I’ve listened to the debate (it was on the Jeremy Vine show, albeit hosted by Paddy O’Connell, and can still be listened to here, starting at 35 minutes), and I’m not entirely sure what Mr Pascoe meant. He was concerned that no-fault divorce would reduce the in-built delay in getting a divorce, and that that would have a detrimental effect, particularly upon vulnerable parties. However, quite how this would reduce marriage to a ‘tenancy agreement’, I don’t know. He may simply have used a tenancy agreement as an example of a ‘low value’ legal contract, or perhaps he used it specifically, to suggest that ‘devalued marriage’, as he sees it, would be no more than an agreement to live together temporarily.
Whatever, I really do not see the argument at all. The introduction of no-fault divorce would do nothing to change or devalue marriage. As I indicated above, marriage means whatever the parties believe or want it to mean. In this country it is a legal construct, but it doesn’t really impose any legally enforceable obligations between the parties, at least until the courts become involved when it breaks down (or unless the parties have entered into a marital agreement). What is important is what is in the minds of the parties, in particular of course their commitment to one another. That commitment will not change simply because some people can get divorced more quickly than they could previously. What happens when a marriage breaks down does not enter the mind of someone committing, or still committed, to their marriage.
The fundamental mistake here is to believe that the law does more than it does when it says that two people are married. One often hears ‘defenders’ of the institution of marriage refer to it as a legal ‘contract’. Of course it is not. The law does not impose upon the parties any contractually enforceable obligations, and does not entitle the respondent to a divorce petition to sue the petitioner for breach of contract.
Marriage is simply the recognition or acknowledgement of a commitment to the other party, the exact nature of that commitment varying from one couple to another. And when one party decides that they no longer wish to be committed, then the marriage is over. And if it is over, then it is to the benefit of all, especially any children, if it is brought to an end as quickly and as amicably as possible.
Yes, marriage guidance should be available, but only for those who want it, not compulsorily, as some marriage defenders suggest, and as was mentioned in the Christian Institute article. There should be no legal or other compulsion for parties to remain married against their will – an unhappy marriage benefits no one, and can be extremely harmful.
The other argument relates to parties changing their mind about divorce. Mr Pascoe claims that many thousands of couples who file divorce papers each year never follow through with them. I don’t know about that – I very rarely came across this during the twenty-five-odd years that I was practising. Most people only issue divorce proceedings after very careful thought. Whatever, the argument simply doesn’t hold water, as I believe I have pointed out here previously. Parties can withdraw proceedings at any time up to decree absolute, and even after that it is not the end, as they can simply re-marry.
I think what we have here is something of a knee-jerk reaction to change, with the marriage defenders erroneously fearing that any change will undermine marriage. There is also, I believe, a misunderstanding of what is being proposed: no-fault divorce is not just about speeding up the process, it is primarily about doing away with blame. No-fault divorce will not change marriage in any way. Marriage is what people think it is. If they should think it is akin to a tenancy agreement, then that is because that is their view, not because of any change in the divorce law.
Photo by Jan Smith via Flickr
October 23, 2017
Categories: Family Law