To have and to hold, from this day forward, till a quickie divorce us do part

Since the unusually high-profile Tini Owens case last week in the UK Supreme Court, the establishment have been saying, with almost one voice, that the only grown-up approach to marriage breakdown is the immediate introduction of quickie no-fault divorce in Britain. They are both ill-informed and wrong.

Tini Owens, 68, from Worcestershire, wanted the court to grant her a divorce from her husband of 40 years Hugh, who is refusing the split. The Supreme Court unanimously rejected the appeal, meaning she must remain married until 2020. Mrs Owens’ solicitor said she was “devastated” by the decision and “cannot move forward with her life”.

English divorce law presently works roughly like this. You can get a divorce immediately, or at least as fast as the rather slow-moving wheels of legal bureaucracy allow, if you prove either misconduct – adultery, violence or whatever – or behaviour which, irrespective of blame, makes it unreasonable to expect you to cohabit.

Otherwise you have to live apart for two years if both of you want a divorce, or five years if only you do. This means that if your spouse won’t co-operate and you can’t show misconduct or other untoward behaviour you have to wait five years. That was exactly what happened to Tini Owens, the wife in this case before the Supreme Court. She was bored, had had an affair or so, found her husband starchy and dreary, and wanted out. The court told her that she had to live apart and wait.

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We have progressives rooting for something like the kind of peremptory divorce available in Shari’ah law to men.

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The great and good, starting with the Supreme Court justices themselves and extending to the nation’s family lawyers, unanimously huffed and puffed that this wouldn’t do. We needed no-fault divorce immediately; our law was out of date. The Guardian, as might be expected, simplified the whole thing: the wife wanted out, so what more was to be said? She had to be given what she wanted: no ifs, no buts.

Hang on a moment. To begin with, idly characterising this as a demand for no-fault divorce is misinformed. No-fault divorce we have already. You can show misconduct if you want, but you don’t have to: any behaviour by your spouse, whether blameworthy or not, will do if it makes it unreasonable to expect continued cohabitation from you. And provided you are prepared to wait, five years’ separation allows you a divorce without even the need to show even that.

What is actually being demanded under the guise of no-fault divorce is something quite different: a guarantee of the availability to either spouse at any time of unilateral divorce on demand, with virtually immediate effect, for any reason or no reason.

Or, put another way, we have the interesting spectacle of progressives actually rooting for the extension to Britain of something a bit like the kind of peremptory divorce traditionally available in Shari’ah law to Muslim men prepared to say “I divorce you” three times to their womenfolk.

Viewed this way, this proposal (which is incidentally rejected in a respectable number of US jurisdictions, despite America’s reputation for liberal divorce laws) immediately looks rather less attractive. “Till death us do part” has already morphed, as regards the state, into “till the state says thinks there’s a good reason to part us”.

If it changes further to “till I decide that I’ve changed my mind and want to up sticks”, we might wonder what kind of commitment the state thinks ought to be involved in marriage at all, or how marriage differs from mere ad hoc cohabitation by agreement – particularly if another progressive demand, that the courts get jurisdiction to make property adjustment orders between unmarried cohabitants in the same way as between separating spouses, also gets the go-ahead.

Nor is it only “till death us do part” that is in danger: there is also the other, perhaps rather more important, phrase from The Book of Common Prayer “for better, for worse”. Spouses often become frailer and more needing of support as they get older; it’s in the nature of people. Just think of the message that would be sent by a right to immediate divorce on demand without the need for any reason: despite the abysmal record of the English for looking after their old, here we have what looks like a demand for positive state encouragement, of course in the name of liberal and grown-up divorce laws, to abandon a spouse when their needs get in the way of your enjoyment. Some might find that liberating: others might see it as downright selfish.

Moreover, despite lurid references to being “locked into a loveless marriage”, or in the words of one unusually silly Guardian commentator, a “captive”, it’s worth thinking for a moment just what disadvantage the indignant Tini Owens has actually suffered (besides, that is, a large liability for legal costs).

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“Till death us do part” changes further to “till I decide that I’ve changed my mind and want to up sticks.”

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Married or not, no one is stopping her from physically vacating the matrimonial homestead: indeed she did just this three years ago, meaning she gets her divorce in 2020 anyway. If she wishes to move in with someone else immediately there is admittedly a certain loss of bourgeois respectability, again until 2020; but then one might think that was an occupational hazard of marriage.

She may have to wait for the divvying up of the matrimonial assets: but it is difficult to have much sympathy for any impatience of hers in that respect. It was she, after all, who walked out without any very substantial reason other than that she was tired of her husband who had done nothing wrong: one might say that it was less than fair to him that having done that she should then be allowed immediately to upend his finances in the name of a (no-fault) divorce settlement.

More generally, what we see here is a continuing change in the idea of marriage as summed up succinctly in the traditional marriage vows of most Christian churches, and yet more eloquently in the Book of Common Prayer: “I N. take thee N. to my wedded husband/wife, to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love, cherish, and to obey, till death us do part, according to God's holy ordinance; and thereto I give thee my troth.”

From being a joint effort, a companionship of two solitudes to the benefit of both, participation in marriage has become just one more continuing lifestyle choice by each party, to be changed at will with the individual’s choice being (non-judgmentally) respected by the rest of us. The commentator in the Independent who went so far as to say that there must be a human right to divorce on the basis of women’s autonomy summed up this attitude perfectly. It is not a pretty sight.

(Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as UKIP’s candidate in Bath).