Back in 1984, feminist academic and specialist in family studies [sic], Carol Smart outlined her plan to ‘undermine the social and legal need and support for the marriage contract’, and thereby bring about Herbert Marcuse’s socialist dream: ‘the elimination of the monogamic … and patriarchal family’ which stands in the way of Utopia.
This year, London has outstripped New York for the number of murders, rapes, and robberies at the hands of predominately black youngsters who have often never known a father. For many of these victims of the theory that marriage is an outmoded institution and we should migrate to a social heaven of multiple, sequential partners of all or any sexual hue, Utopia is a cold slab in a morgue.
Restrictive definitions of the conjugal family, showing how unrepresentative, ridiculous and outmoded it is, were already standard by the 1980s. And, so, it is no surprise that most of Smart’s plans have since been implemented, ranging from removing any ‘need’ for fathers from the law to discriminating against two parent families in the benefit system.
Recently, Sir James Mundy, President of the Family Division and Head of Family Justice, opined that it did not matter that marriage was ‘platonic’ or that a couple had separate homes and children born from foreign surrogates. Marriage was no longer the basis for reproduction or parenthood, or involved living together, and, like same-sex unions, consummation did not apply.
Now, the final clean up is to be effected with the implementation of Smart’s demand to extend recognition to ‘different types of relationships’. Since homosexuals can marry and it is proposed that heterosexuals should have civil unions, cohabitees of different or same sex should, it is argued, have any remaining benefits of marriage – like inheritance and pensions.
The law having failed to redress losses flowing from the ways people ‘choose to live’, the ratification of what Mundy sees as an ‘intolerable injustice’ is ‘inevitable’. However, there is no intention to ‘impose the responsibilities’ of marriage on unmarried couples – responsibilities which, as plans go, are removed from marriage anyway.
A House of Commons Briefing Paper (December 2017) proposes that after a year of marriage, the union along with the household created by it may be dissolved on demand under a ‘no-fault notification system’ without penalty to any leaving party. This is in recognition that people ‘change all the time’, and that if they become discontented, they should be able just to call it quits and get on with a new life. Everyone will be equally entitled to keep a foot out the door ready to jump if a better opportunity presents itself.
Marriage thereby becomes the only contract that can be broken unilaterally without citation of fault by the other contracting party and with no adverse consequences to the one ‘wanting out’. It is egalitarian sharia, where ‘I divorce thee’ or ‘I dump you’ is said not three times but once, and then by either sex. With no need to cite grounds for divorce, no ground rules or expectations for marital behaviour, and any advantages available to others who do not even have to sign a piece of paper, marriage has been abolished in all but name.
Singing from the same hymn sheet as Sir James Mundy are others from the senior ranks of the judiciary (like Baroness Hale, President of the Supreme Court), the Family Mediation Taskforce, Resolution (a national organisation of 6,500 family lawyers), the Nuffield Foundation and The Times.
So is the supposedly pro-family organisation The Marriage Foundation founded by Sir Paul Coleridge. Ironically, the Foundation has repeatedly highlighted a crisis of family disintegration. Cohabitees have become a fifth of parents and account for over one half of family breakdowns. Children now have only a fifty per cent chance of living with both parents up to the age of fifteen. Children without both natural parents have more problems with health, education, delinquency and sexual abuse, and they cost the taxpayer in excess of £48 billion per year.
Along with academia, the judiciary are immersed in the quasi-Marxist broth of postmodern deconstructivism and identity politics. Back in 1982, Baroness Hale (barrister Brenda Hoggett) declared, ‘Family law no longer makes any attempt to buttress the stability of marriage or any other union’ and ‘Rather than discussing which remedies should now be extended to the unmarried, we should be considering whether the legal institution of marriage continues to serve any useful purposes.’
Much anti-marriage propaganda centres on the notion that what is wrong with divorce is ‘conflict’. If we could get rid of that, no one could possibly be hurt or ‘damaged’. The mirage of the ‘good divorce’ promises that if divorce were fully accessible, without reason or cause cited, acrimony and accusations would be annulled.
In this cod-psychological therapeutic take, if people were freed from their mistakes, they might float along in a harmonious blissful haze, unconsciously coupling and uncoupling unhindered by such nasty old relics as rules, standards, distinctions and judgements of right and wrong. As in the new Girl Guide Promise, people can make up ‘their own values’, their personal oxymoron stating that ‘anything I do is right, and right is anything I do’.
But if you can opt out of marriage without even giving a reason, it is unclear how animosity can possibly be avoided. Being value-free is far more likely to induce and inflame conflict. People like to know why something is happening, particularly when dramatic changes of fortune are involved. Conflict and argument are intrinsic to human societies. Evidence from cohort studies suggests that children may be more adversely affected when their parents smoothly uncouple because it leaves them confused and at a loss to know why. At least when there is conflict or bad behaviour, separation can be an understandable relief.
Present proposals are pretty much a re-run of the enthusiastically supported legislation guided by Lord Chancellor James Mackay under John Major’s government in 1996, according to which divorce would be automatic a year after an application without any reason provided. Mackay’s provisions ‘aimed at reducing the bitterness of divorce and the damaging impact on all involved’ by having couples attend mediation and tidily sort out their finances and child arrangements.
They originated in the feminist-directed Law Commission, which saw no more reason to support marriage than ‘any other living arrangement’. But like Coleridge today, Mackay seemingly failed to grasp that he was advocating the dissolution of marriage itself. Five years on, the ‘unworkable’ proposals were killed off. Pilot schemes indicated that, far from eliminating ‘conflict’, mediation counselling heightened animosity and pushed waverers towards a final split.
The rot can be traced all the way back to the watershed divorce legislation of 1969-70, whose basic premise was that marriages simply died and all that was necessary was for ‘experts’ in marital mortality to identity the ‘hollow shells’: ‘Knock, knock, anyone there?’ Officialdom could only be responsive – tidying up rather than setting standards or upholding norms. Human ties involved ‘bonding’ naturally, like ducks; they required no publicly validated obligations, no values of commitment, loyalty or responsibility.
It was thought that sending the ‘dead marriages’ for a ‘decent burial’ might even revitalise marriage and all would proceed better than before. The Church of England signed up with its Putting Asunder. The words of the 1956 Royal Commission on Marriage and Divorce (the previous response to attempts to extend the grounds for divorce) – that ‘people have good and bad impulses and we conceive it to be the function of the law to strengthen the good and control the bad’ – were a primitive irrelevance now that morality had been seen off by what passed for science.
But when it turned out that the ‘experts’ did not exist, there was a fall-back onto notions of unacceptable conduct. Adultery, desertion and unreasonable behaviour now masqueraded as ‘irretrievable breakdown’, along with two or five years for mutual or unilateral separation. In practice, marriage has become terminable without much, if any, official intervention. Conduct was deemed to matter only in the most extreme cases relating to children or finances.
The predictable result of all this was that marriage rates dived, as did the reputation of the institution of marriage, and divorce levels climbed. People were faced with an agreement whose terms were obscure and unpredictable. A person might even benefit from breaking the agreement, with resources distributed according to ‘need’, not desert.
The idea of marriage still haunted our moral understanding; it was still widely understood as a special contract, a permanent tie not to be repudiated without just cause or profound consideration; but it was now a contract that the law seemed disinclined to enforce. As the promise of security evaporated, people increasingly relinquished marriage for informal unions of convenience. Marriage has now been largely extinguished from the lower income reaches of society, where it has become little more than an economic liability.
Current ‘no fault, no talk’ abolitionists make much of how there is a ‘common misunderstanding’: people fail to grasp that the law does not actually examine responsibility for breakdown. As the Nuffield Foundation asserts, if a majority of the public considers that ‘… having to assert fault for marital breakdown may help people think through whether divorce is really the right thing to do’, then they need to be disabused of this ‘unsound perception of the current law’. To correct the mismatch, law must be explicitly brought in line with practice. Otherwise, as Sir James Munby remarked in March 2017, the law is based on ‘hypocrisy and lack of intellectual honesty’.
Rochefoucauld famously noted that ‘hypocrisy is a tribute vice pays to virtue’. But at least the hypocrite who says one thing but does another knows that what he says is right and recognises virtue as the preferred option. The crucial thing is that the law, hollow or not, sends out messages. Perseverance through marital problems is predicated on marriage being for life; even in the midst of troubles, it is worth keeping. What is signalled conveys what marriage entails and what breaks it.
Otherwise, there are no guidelines, no pointers to the future. If people are misinformed when they believe the law supports basic rules of marital behaviour, perhaps legal practice should be brought more in line with their expectations, rather than the reverse? The problem is the unfairness or injustice, or the lack of proper application, of the fault principle, not its existence.
One constantly hears it argued that the fault grounds are ‘out of date’ or ‘antiquated’. But by this reckoning, all prohibitions and consequences of conduct would have to be dumped. Human society cannot function without norms that have to be conformed to.
Without external ‘forces’ to direct and circumscribe human choice, there is nothing to guide us but experience. The notion that removing rules for living will make everyone happier is just so much fantasy. It is precisely because the marriage contract is flimsy, poorly enforced and uncertain, that people are put off – and this gives the wreckers all the ammunition they need.
This article appeared in the current edition (Autumn) of the Salisbury Review. Patricia Morgan’s latest book is The Marriage Files. Wilberforce Publications