How relationships work is always evolving. Marriage has changed a lot since the 1970s but unfortunately, divorce laws in England and Wales have not caught up.
While no one expects their marriage to end in divorce, it happens to around 100,000 couples each year (according to ONS). All go through a legal process that causes shame and anxiety, during one of the most stressful events life can throw at them. Our old-fashioned divorce laws are failing us and they need a reform.
For the uninitiated, here’s a quick overview of divorce law based on the Matrimonial Causes Act 1973. A divorcing couple are treated as two separate parties even if the split is by mutual agreement. One is the petitioner (requesting the divorce) and one is the respondent (acknowledging the request).
The petitioner has to give a reason why the marriage is over. There is a choice of five reasons: adultery, unreasonable behaviour, desertion, separation (two years) or separation (five years). These reasons come with complex conditions. For example, desertion only applies if one party has left the other for two years in the last 2.5. Gov.uk is the best place to find the full details.
Many people who go through divorce simply want to move on with their lives. But to get a divorce before two years of separation has passed, the petitioner must prove that the respondent is to blame. The only two reasons they can give in this case are adultery or unreasonable behaviour. They must provide evidence of what their spouse did and how they felt about it. In over half of divorce cases, unreasonable behaviour is the reason given.
Tini Owens recently lost a case to divorce her husband on grounds of unreasonable behaviour. To get to this point, she had to share details of her personal life and describe how the situation made her feel “unloved, isolated and alone.” The judge then concluded that her unhappiness was not an acceptable justification to end the marriage. She is being forced to stay married, sentenced to more misery. Her autonomy is being denied.
We’ve all seen behaviour in other people’s relationships that is either awful or no big deal to us. But who are we to judge? How can anyone judge how another should feel about behaviour they haven’t experienced? Even an actual judge.
During my own divorce, I felt lost and hopeless for a while. Navigating the legal process was a barrier to healing and getting my life back on track. Supplying private details of my marriage for an unknown person to judge caused yet more heartache. It felt shaming. There were many abandoned attempts before I finally worked up the courage to face the process without the aid of expensive lawyers. Then months of limbo as I waited for the resolution and the permission to move forward. The confirmation I had suffered enough.
Why should the joy and happiness in a marriage be up to us to share or keep private, whilst the difficult times and ways we hurt each other have to be on the record if we divorce? It doesn’t make sense that even though we decide a marriage was over, that isn’t enough. It is as if by failing at the sacred institute of marriage, our decision making can no longer be trusted. An out-dated patriarchal perspective that has no place in modern life.
In 2017 Professor Liz Trinder of the University of Exeter published a comprehensive study of divorce law. Results showed the impact of what she calls our “often painful, and sometimes destructive, legal ritual”. Reasons given for divorces were often inaccurate because people were scared of them being rejected. Forcing couples to attribute blame increased the level of bitterness in many breakups. This often affected children by making it more difficult for financial and access arrangements to be agreed post-divorce.
Trinder said: “In the twenty-first century, the state cannot, and should not, seek to decide whether someone’s marriage has broken down.” Her report provided essential recommendations for reform which are under review.
In conclusion, divorce is painful. But the law shouldn’t make it harder. Let’s remove the shame and rethink the process. Allow for mutually agreed divorces without a minimum separation period. Treat people as adults who can choose to enter into divorce as they chose to enter into marriage. The no shame divorce is a 21st Century adult right.