Sorting out divorce and cohabitation law will take the wisdom of Solomon

Sir James Munby, president of the family division, wants to shake up the law on divorce and cohabitation.

In a press conference earlier today, he made a series of proposals that include legal rights for unmarried couples, in order to end the obvious injustice where women (usually) in long relationships come away with nothing. He also proposed that divorce be made easier for couples who have no children and both consent to it, and an end to fault as a ground for divorce.

There’s no doubt that the law, as it stands today, is a bit of a hotch-potch that badly needs updating. So it’s really important to listen to senior judges who spend a lifetime dealing with these problems. Where I think I can add value is in considering the dynamics of how relationships begin and end, and why. If we start from these benchmarks, then we have a better chance of working towards a more just set of laws.

Let’s begin at the end, with divorce.

First of all I see no good reason for standing in the way of couples who have no children and both want a divorce. I hardly think we will encourage more couples to make the clear commitment of marriage in the first place if we lock them in and make it hard to escape. The main barriers to divorce involve unravelling the sheer complexity of day to day life and shared history to that point, as well as trying to figure out where to go next. These are the really important constraints that make it hard to leave.

But for couples with children, we need a different set of rules. In terms of the effect on children, invariably the innocent parties, the effects of divorce vary tremendously depending on the level of conflict in the relationship.

It is not divorce following high conflict relationships that tends to damage children. Most of these dysfunctional relationships are often better off ended. It’s the low conflict relationships that prove most devastating. ‘Mummy and daddy don’t love each other any more’ simply doesn’t wash to a child or teenager. They don’t see it coming. When parents talk about managing their divorce amicably, or even ‘consciously uncoupling’, they often seem unaware that their children might have a very different perspective.

Whatever form any new law on divorce takes, it needs to slow the process down sufficiently to give low conflict couples the space to reconcile. Even if few manage this, the effort is worthwhile. It also needs to make sure that parents are better informed that their children may view the divorce rather differently. If the only benefit is that parents can better understand their children as a result, then that must be good. For these two reasons I do not support no fault divorce where children are involved.

For unmarried couples, the issue is complicated, which is why various legal proposals over the years have got bogged down. The obvious injustices are obvious. A mum who forgoes her career to look after her children is then left behind by the father who has always held the money in his name. The child has rights. She doesn’t. This iniquity can of course work the other way round. It did for a relative of mine, for example. But the worst cases tend to involve abandoned mothers.

The problem is in defining the timing of when any new rights and responsibilities apply. If it’s, say, two or five years from when a couple begin cohabiting, how does anyone know when the relationship began? US research suggests couples can be months apart on their estimated start date. And if a new law applies from childbirth, then there is a strong argument to say that it is illiberal to impose marriage-like responsibilities on those who have not chosen it. After all, if they wanted these kinds of protections, they could have got married.

The other certainty is that the law of unintended consequences will apply, not so much to how cohabitees end their relationship, but to how they begin it. If the rights and protections of marriage are thrust upon couples automatically at some stage, you can bet that this will influence the way couples commit in the first place. Some partners will run away altogether, maybe even the day before the law applies. Others won’t marry because they no longer see the need. The way in which they express and act out their commitment to one another may well suffer as a result.

Whatever happens, sorting out more just laws on divorce and cohabitation will require the wisdom of Solomon.

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