A law that prevents anyone from getting divorced is pointless

Divorce|January 17th 2017

No one would argue with the fact that it takes two people to marry. However, it is remarkable how many don’t seem to accept that it also takes two people to remain married. In other words, a marriage is over if just one party wants to get divorced.

This reality was clearly demonstrated in the recent European Court of Human Rights (ECHR) case Babiarz v. Poland. The case concerned a complaint by a man that by refusing to grant him a divorce the Polish authorities had prevented him from marrying the woman with whom he had been living, thereby breaching his rights under Articles 8 and 12 of the European Convention on Human Rights (the right to respect for his private and family life and the right to marry).

The facts of the case were, briefly, that the man was married to his wife in 1997. The man formed a relationship with another woman and moved out of the marital home in January 2005. He and the other woman then had a child together. In 2006 the man filed for divorce. The wife objected, and the divorce was refused. The man appealed, but his appeal was dismissed. He then took his case to the ECHR.

The ECHR held, by a majority of five votes to two, that there had been no violation of Article 8 or Article 12 of the Convention. The majority acknowledged that there had indeed been “a complete and irretrievable marriage breakdown”, but held that the man was the only person responsible for the breakdown, because he had “failed to respect the obligation of fidelity”.

Under the Polish ‘Family and Guardianship Code’, a divorce cannot be granted if it has been requested by the party whose fault it was that the marriage had broken down, if the other party refused to consent and the refusal of the innocent party was not “contrary to the reasonable principles of social coexistence”. The majority found that there was no indication that when refusing to give her consent the wife had acted out of hatred, was motivated by vengeance, or simply wanted to vex the applicant. It said that the duration of the man’s new relationship could not by itself be considered to be a sufficient reason for granting the divorce. In short, domestic law had been properly followed, and that did not breach Articles 8 or 12, neither of which conferred a right to divorce.

The two dissenting judges were Judge Sajó of Hungary and Judge Pinto de Albuquerque of Portugal. Judge Sajó’s opinion is particularly interesting. He found that a right had clearly been interfered with in the case, i.e. the private life right not to be forced to live in a marital union with another person. He pointed out that there is no right to live as a married couple against the will of the other party, as secular law considers marriage to be a voluntary union. He concluded:

“I see no reason why the State should be able to force citizens to live in a partnership contrary to their choosing. A marriage between two citizens cannot provide the State with the prerogative of its perpetuation once one of the parties has taken the private and family life decision not to continue living under such a legal bond … It is bad enough that a person has to deal with the fact that a lifelong decision such as marriage went wrong, for whatever reason. To allow the State to force people to live with their regretted life choices, thus preventing them from moving on with their private lives, inevitably entails an impermissible intrusion that cannot be considered necessary in a democratic society.”

You might be wondering whether a similar situation could arise in England and Wales. Well, here it is still possible to defend a divorce. The court can also refuse a divorce in five years separation cases on the grounds of the respondent’s grave hardship. It is true that divorces are virtually never successfully defended, and that most of the very rare grave hardship cases are sorted out by some financial arrangement being put in place to prevent the hardship, thereby allowing the divorce to go through. However, the fact remains that technically at least we could have cases in this country where people are forced to remain married despite the marriage having clearly irretrievably broken down.

Going back to the case, we are left with the absurdity of two people still bound together by marriage, despite the fact that one party has long since ceased to wish to be married to the other. What is the point of that? It obviously doesn’t serve the husband, who wants to move on with his life, nor his new family, and it does not serve the wife either, who is in the meaningless position of still being married to someone who no longer wants to be married to her. It also surely does not serve the institution of marriage, the very thing that those who support this sort of ‘divorce denial’ purport to want upheld – it does not support it, because here the husband actually wants to enter into a marriage, and this time a happy one, but is being denied that opportunity. The whole situation is a nonsense, and demonstrates why it is pointless having a law that prevents anyone from getting divorced. This fact should be recognised in this country, as it is something which could easily happen when no-fault divorce is introduced.

The full judgment of Babiarz v. Poland can be found here.

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