A world without divorce

Divorce | 22 Mar 2018 3

I read with interest the other day the news that the government in the Philippines is moving closer to legalising divorce, after its lower house of Congress passed a bill that would allow it. There is still a long way to go though, as the bill must pass through the Senate, and even then it could be vetoed by the President (this is just the latest in a number of attempts to pass a divorce bill in the Philippines). Still, it is an interesting development, and if the bill does become law it will leave Vatican City as the only state in the world that does not allow divorce.

All of this got me thinking: what would the world look like without divorce? It is obviously a very basic (and entirely hypothetical) question, but I believe it is useful to go back to basics once in a while. After all, helping people get divorced is what divorce lawyers do, and in the forest of law, rules, documents and court hearings it is very easy to lose sight of exactly what we are trying to achieve, and why.

To answer the question, I think we have to look at the arguments put forward by those who oppose the legalisation of divorce in the Philippines. The news story that I read mentioned two.

The first argument was that legalising divorce would undermine the sanctity of marriage. Now, ‘sanctity’ has two definitions: the quality of being holy, and ‘ultimate importance and inviolability’. I’m not qualified to discuss the former (although obviously it is of no importance to those of no faith), but as far as the latter is concerned, the argument seems to simply be: “divorce shouldn’t be allowed because marriage is important, and should therefore never be ended” (except by annulment, which is allowed in the Philippines).

Well, I’m sure most people would agree that marriage is important, but does divorce actually reduce its importance? I’m not certain that it does. Surely, most couples entering into marriage take their vows seriously, irrespective of whether or not the possibility exists for the marriage to be terminated before one of them dies? And after they take those vows they remain committed to them, unless the marriage breaks down.

And that is the point. Even with the best intentions, marriages do break down. There is nothing that the law can do about that. The fact that there is no divorce law in a country does not prevent marriages from breaking down in that country.

And when they do break down, what should we do? Nothing? Do we really want to force people to remain in unhappy marriages? Is that a good thing? I’m sure most people would recognise that it is not. No one benefits from the prolongation of an unhappy marriage.

And that brings me to the other argument put forward against the legalisation of divorce in the Philippines: that divorce would cause problems for the children of divorced couples. Unfortunately, this argument misses the point on causation. It is not the divorce that causes problems for the children, but the breakdown of their parents’ relationship. Divorce (and the ancillary rules relating to arrangements for any children) is simply a way to make the best out of a bad thing.

The alternative, of course, would be to force the children to spend the rest of their childhood trapped in an unhappy family, most likely still in the same household, with warring parents. That is obviously far more damaging than their parents splitting up. In fact, the truth of the matter is the opposite of that argued: divorce is actually beneficial to children.

And there is another point in favour of divorce (for some, at least), which goes back really to the first argument. If divorce is outlawed then inevitably couples would have to think far more carefully before entering into marriage, in the knowledge that it is the only ‘chance’ they get. The likely effect of this, without the encouragement of religion to marry, would be a substantial decrease in the number of couples getting married, and a corresponding increase in the number simply cohabiting. Now, personally I don’t think that more people cohabiting is necessarily a bad thing, but obviously the proponents of marriage would think otherwise, so that the lack of a divorce law might actually work against their beliefs.

In short, a world without divorce would be very different from the world enjoyed by most of its population. It would be significantly unhappier, both for those in broken marriages and, more importantly, for the children of those marriages.

To finish on a lighter note (and to cover a point that may have occurred to some of those readers less well disposed to the legal profession), no divorce would of course mean no divorce lawyers! Your view on whether this is a good thing may depend upon your experience of divorce lawyers – if you have, or have had, a good one, then you may think them an excellent thing!

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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    1. Spike Robinson says:

      An interesting hypothetical John. And an interesting argument, albeit a case of the poacher arguing the merits of poaching. 🙂

      Probably you are sidestepping or begging the question if you set aside the question of sanctity. That’s almost the entire point, for those who argue against divorce, as in the Philippines or indeed Vatican City (where I suspect there are extremely few, if any, married couples). The religious arguments can be argued multiple ways, but I will leave that and go to the question of the meaning or importance of marriage.

      I would take an almost opposite view, which is that under current conditions, it is only divorce that has any legal meaning, and marriage has none. Or to put it slightly differently, the only significant legal meaning that marriage has, is in divorce. Divorce is a hugely significant legal event with very clear and dramatic legal consequences, impacting finance, assets, earnings, taxation, income for what can be a lifetime, and legally determining the course of the lives of children and parents and the relationships between them. A massive impact. Whereas the legal effect of being married, remaining married, is marginal. Married people are entirely left alone and almost entirely unaffected by the legal system in any significant way. The small number of legal distinctions that once applied to married people, as opposed to divorcing people, has whittled away to near nothing (not that I’m objecting to that as such).

      What remains, in divorce, is what has become a terrifying right of action that confers the power to tear apart family relationships and ruin lives, as well as doing untold and irreparable life long financial damage and emotional damage. This right of action has evolved from a minimum ability to enable insufferable marriages to terminate, to an egregious ability to terminate a marriage at will and at whim, for nothing less than boredom or the pursuit of greener grass, regardless of the involvement of children of any age, however vulnerable. The court conspicuously and even quite proudly recuses itself from any consideration of such matters, despite its hypocritically claimed “primary duty” to the same children.

      In all practical terms, the only effect or impact of marriage, is to expose oneself, or avail oneself, of this terrible power and this terrible but unchecked, uncheckable, inalienable right of action to lay waste to the lives and futures of one’s children and one’s partner alike.

    2. Andrew says:

      If we abolish marriage, over time the divorce rate will dwindle to nothing . . .

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