The Tories Attempt to Make Marriage Weaker Than a Phone Contract

There’s more to this than the curious blindness of our highly susceptible Chancellor, who is coming to look more and more like his impressionable lightweight equivalent in Gilbert and Sullivan’s Iolanthe.

The Red Queen in Alice in Wonderland used to boast that she could believe as many as six impossible things before breakfast. She may hold the record, but she now seems to have an aspiring rival in our remarkably credulous Lord Chancellor, David Gauke. Announcing that the the government, following a consultation, intended to abolish the concept of fault in divorce and let either party walk out of a marriage on twenty-six weeks’ notice whether the other party liked it or not, he said three things. First, the government remained committed to uphold the institution of marriage. Second, it would make relationships more harmonious. Thirdly, it should not be unacceptable to religious groups. All three are patently false.

The first involves a wilful misunderstanding of marriage. Living together for just so long as both parties find it fulfilling and convenient, with either party able to leave if they feel like it, is called cohabitation. What makes marriage different is that there is more to it than living together, and that there is a commitment to carry on even if it isn’t fulfilling or convenient any longer and you’d now prefer to be with somebody else. In other words, it involves clearly outdated ideas like “to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part”. If we change the law so as to make marriage terminable at the whim of either party for any reason or none, on rather less notice than would be required under many mobile phone contracts, I leave it up to readers: what are we left with? Is there actually anything for the government to uphold apart from a mere simulacrum, like the grin on the Cheshire cat?

Harmonious relationships? It is difficult to see why making marriage officially almost as precarious as cohabitation should be apt to make family life less conflict-ridden. It’s not as if divorcing couples are still living together, fighting like cats and dogs, until the longed-for divorce arrives to spring them free, as if by magic. On the contrary: as often as not, one or other will already have left long ago. Indeed, there is a powerful contrary argument to the effect that a perceived need to preserve a relationship in a difficult position is likely in the long term to be more conducive to harmony than an ability (or a threat) simply to walk out of it with no questions asked.

Religious groups? Mr Gauke’s view here tells us rather a lot about the way politicians see such questions. “I think,” he said, “there has been a growing coalition recognising that the animosity that is put into this system is one that is not doing us any good.” In other words, religion can be reduced to a kind of general niceness: it’s really just about helping us to avoid offence to others. One suspects there are any number of sincere Christians – and of course Muslims – who should have no difficulty in explaining to the Lord Chancellor that there is actually rather more to it than that. We can, I think, safely leave it up to them to make the point clear even to the intellect of Mr Gauke.

But there’s more to this than the curious blindness of our highly susceptible Chancellor, who is coming to look more and more like his impressionable lightweight equivalent in Gilbert and Sullivan’s Iolanthe. Just think about the present system for a moment. To remind you, it goes roughly like this. Prove misconduct in the other party, and you can have a divorce as soon as the wheels of the law can grind into action. Move out, and if the other party agrees the marriage is over you are free in two years: if he doesn’t, you still get your divorce but you have to wait for five.

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What is wrong with this? It’s all very well to tug at Islington heart-strings by talking of a wife supposedly “trapped in a loveless marriage” as a result of all this where her husband won’t agree (as the Guardian put it a little time ago). But if we refuse her a quickie divorce with no questions asked, what is she actually being deprived of? Despite the loaded word “trapped”, there is no question of actual coercion. No-one is forcing her to stay with a partner she dislikes; on the contrary, anyone can physically walk out of a relationship at any time, and no-one would want to change this. Her actual loss is two things. One is a small amount of social respectability. She will have to wait some time for the ability to marry, rather than cohabit with, some third party she takes a fancy to. The other is the ability to upend immediately, and on her own whim, the finances of the other party to the marriage. Does she deserve either of these, as regards a blameless spouse? The answer, one might suggest, must be No. Indeed, if there is a deserving party one does not have to look very hard: it is the other spouse. If he enters into a long-term relationship and conducts himself impeccably, one would have thought he had a very legitimate expectation not to have his assets disturbed simply because his ex feels she would rather be elsewhere.

Now for the final curiosity about this interesting debacle. When Mr Gauke announced his reforming zeal against a metaphorical flourish of trumpets, he referred to the fact that the government had consulted on the matter. Indeed it had: furthermore, it had got back something over three thousand responses. But there was a convenient omission to mention the answers actually given. And if you read the document you’ll see why. The flagship proposal to remove the references to fault in divorce was supported by – wait for it – 546, a whopping 17% of respondents. It was opposed by 2,614, or in round figures 80%. The six-month notice period was backed by a mere 9% of respondents; 64% wanted at least a year or more. And the other headline-grabber, the plan to prevent either party opposing the divorce because it was so conducive to disharmony? Even more decisively rejected: 484 to 2,644, or 15% versus 83%. In other words, of those who actually took the trouble to take part in the consultation, the vast majority actually favoured the status quo.

Clearly the wrong answers, of course: no need to take any notice of such benighted views. It is true that a cynic faced with these facts might wonder why the government agreed to consult in the first place (especially since the Labour Party was against any kind of consultation at all, believing in its charming way that it is Parliament’s job to give us what is good for us whatever we might actually think). But I leave it to you, dear reader, to speculate about the answer to that question.

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