The recent case of Tini and Hugh Owens looks set to create changes in UK divorce law. Tini Owens’ claim that her marriage should end has-it seems-been contested by her husband of 40-odd years; she says his behaviour has been unreasonable (one of the legal reasons why couples can file for divorce) and he says it is not. Tini feels she lives in a very unhappy marriage yet it was found that however hellish her marriage is, it’s not hellish enough, so it goes on now for another two years.
Leaving aside, if we can, the behaviour that claims it is not unreasonable by perversely demonstrating that it is unreasonable (a man forcing his wife to stay married when she does want to) the case itself has been lauded by many as indicative that modern marriages now demonstrate a relational complexity far beyond what the law provides for and actually what might be best for all concerned: the fault free divorce.
Does this mean that the law is still mired in an age-old patriarchy, where women are cursed to remain in loveless marriages? The recent research published by Alicia Walker, a sociologist at Missouri State University, The Secret Life of The Cheating Wife strongly suggests that there is a defiant renaissance at work in marriage, where women in particular are powerfully becoming aware of their unmet needs, needs that cannot be satisfied within the confines of their often-traditional marriage; love might be present but desire has taken a walk elsewhere, notably into the arms (well, the bed) of another. This works to contradict the myth of the cheater-as-a-man (which is crazy: who did we think the man was sleeping with?) narrative and perhaps further recognises female power.
Except, in this case the law seems not to.
We don’t really know for certain how many unhappy marriages there are, not do we know for certain how many affairs take place, but figures suggest that an affair might take place in up to 35% of marriages. Why is this figure important? Because it suggests that an affair, or an unhappy marriage is not best understood via a fault-based narrative, its motivation instead might provide us with great psychological insight into the nature of human bonding: Esther Perel’s book The State of Affairs seeks to do just this and does it superbly.
Relationships are complex, and marital relationships are more complex still. Rarely do folk embark upon either an affair or divorce without some degree of soul searching, shame and guilt. Divorce, which can be gut wrenchingly painful for both sides, and sets up a legally buttressed adversarial relationship that in turn rips the parent-child relationship apart has to stop, yet I hear those who say that a truly no-fault divorce will make it “too easy” to divorce. I really don’t think divorce is ever taken easily or lightly, and in any case this idea that there will be sudden goldrush to Court if the UK stages a no-fault rule is contraindicated where it does exist in other countries.
Yet perhaps we might pause here; the process of divorce when it impacts on children currently can involve lawyers, mediation, family consultants, CAFCASS and the family court (may the best barrister win: the financial implications are sky high stupid at times) but a no-fault divorce does not have to mean no accountability, lest this become a licence for personal irresponsibility.
The law must both fit and at times test the mores of society, else society and its constitute parts (that’s us) buckle under further caprice or misery; marriage constitutes one of the most complex and important rites and promises in our lives-can the law recognise this?