Long overdue changes to legislation inevitably pose questions such as what is marriage – and what it is to be a wife or husband
The Law Commission today launched an overdue consultation aimed at rectifying anachronisms at the heart of the family courts system. For, despite a succession of landmark cases and the advent of pre-nuptial agreements, divorce laws have remained set in aspic since the paternalistic days of 1969, when the divorce rate after 15 years was one in five, with legislation calibrated to protect women as the dependents they so often were.
Forty years on, one in three unions have failed by their 15th year, with about 40% of first marriages ending in divorce and 70% of second. Love and marriage no longer go together like the proverbial horse and carriage and, where they do, the situation is less till death us do part, more “Let’s regroup on this in a decade”. As one aspiring divorcee recently told me: “Ours is an Ikea marriage: I don’t see it outlasting the MDF.” What has changed is that this is furniture her job paid for; divorce a situation she expects to take in her financial stride.
The consultation sets out possible ways forward, not least facilitating “a transition to” or “incentives for independence” rather than “encouraging dependency” on former spouses. If this does not yet represent Kate Millett’s utopian vision in which: “Men and women were declared equal one morning and everybody could divorce each other by postcard”, then there is at least some recognition of the sea change British society has undergone in the last four decades. Instead of a premise that women represent a population of housebound hausfraus, implicit would be the not so very radical notion that both parties are assumed to have the capacity for independence.
One can immediately imagine circumstances in which there might be exemptions: not least where many elderly women remain without pensions. There may be concern regarding the imposition of legislation that is based on those with more money than sense on those with just as little money as wit. However, such modernisations would recognise a zeitgeist shift in which marriage, motherhood and men and women themselves have evolved – and for the better.
Our cultural expectation is that of gender equality, whether in our capacity to work, parent, or stand on our own two feet. Why should this be reflected in all but divorce law? If one is a fundamentalist or a footballer, one will still be able to pre-nup oneself a more regressive paradigm. However, women not seeking such unions can only benefit from being perceived as adults rather than male responsibilities.
The message to the young is that marriage is not a meal ticket. But then with the exception of a token gaggle of Wag wannabes, few young women will harbour such delusions. Instead, with their superior grades and ever more sparkling prospects, they stand every chance of doing better than – and not being fleeced by – the chaps they wed.
Child-rearing, of course, complicates matters, as any reforms would be obliged to take into account. Nothing sabotages a woman’s short- and long-term earning potential like motherhood, while fathers tend to remain unaffected. However, it is possible that parenting will become necessarily more shared as women refuse to compromise their post-divorce prospects, or that new financial models may be developed to address this inequity.
For such changes will be as much about how we see marriage as how we view divorce. Reform poses the question: what does it mean to be a wife or husband? The answer: not a helpmeet nor handmaiden, not a pater familias nor patriarch, but individuals who are partners for so long as that partnership is agreed, individuals again when it isn’t.
With divorce less momentous, so marriage will be less fetishised: one less feared, the other less exalted. Matrimony will be, as it is, simply another means of organising a relationship: an option, rather than some epically life-changing be all or end all. Whether they pre-nup or no, couples will be more likely to address why they are doing what they are doing and what their expectations are, rather than burying their heads in so much tulle.
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