The Abolition of Marriage
Try this thought experiment: What would happen if courts treated property and business contracts as we now treat the marriage contract? What if American law refused to enforce business contracts and indeed systematically favored the party that wished to withdraw, on the grounds that “fault” was messy and irrelevant and exposed judges and attorneys to unpleasant acrimony?
Maggie Gallagher (Gallagher, 1996)
Without marriage there are no fathers. The institution of marriage exists to bind fathers to their families; in return it guarantees them legitimate heirs. Motherhood is a biological inevitability, but fatherhood is a social construct; marriage breakdown leads to fatherlessness, not to motherlessness.
Marriages are far more likely to endure than cohabitations, and a remarkable 97% of children whose parents remain together until they are 16 are raised by married parents (Benson, 2010a). This statistic contradicts liberal politicians’ repeated unsubstantiated statements that ‘once you adjust for the fact that people who are married tend to marry older, be better educated and have higher incomes, you find it is not the legal form, it is the strength and stability of the relationship which is most important’ (Chapman, 2010), and it shows that governmental refusal to support marriage is profoundly misguided and irresponsible. If a child wants to keep his parents through his childhood – which is really to say, if he wants to keep his father – he must contrive to be born to married parents. By pursuing policies which militate against marriage governments promote family breakdown and fatherlessness.
The purpose of Leo Abse’s reforms had been to achieve a ‘clean break’ for the divorcing parties of a marriage. This was an audacious experiment which was to make divorce available to anyone in a way historically it had never been before; the experiment failed because there is a price to be paid for such liberation: a clean break from a spouse is seldom possible, continuing maintenance obligations, legally-enforced child support obligations and the desire of ‘non-resident’ parents to remain involved with their children ensures the continuance – albeit in a different form, of the family. A tension is created between what the legal system promises parents and what it can actually deliver.
In 1973 the ‘no fault’ principle established by Allen v Allen was extended into financial issues and the allocation of assets by Mr Justice Ormrod (Wachtel v Wachtel, 1973). The question of the wife’s innocence or guilt was ‘no longer appropriate’. Only ‘gross and obvious’ conduct should be considered, though as time went on even that concession to traditional morality was eroded. It became futile – and costly – to defend a divorce. The judgement was upheld on appeal by Lord Denning, Master of the Rolls, sitting with the Lords Justice Phillimore and Roskill. For Denning the breakdown of a marriage was a misfortune; no one could be held accountable, ‘the court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame’. In his memoirs Sir Robin Dunn said of Ormrod,
Roger boldly announced, as was the fact, that in almost all cases both parties were to blame, usually in approximately equal shares… Matrimonial conduct could be ignored… He was not sympathetic to husbands who maintained that they could bring up their children as well as their wives, saying that such men usually either neglected their children or gave up their jobs and become so engrossed in the children that they grew up in an unnatural environment (Dunn R. , 1993).
Ormrod’s stance shows the danger inherent in courts of equity which is not present in a court of law; once a judge’s personal prejudice is allowed to enter the equation all pretence at justice is abandoned. An entire body of evidence – the judge’s education, training and preconceptions – is introduced which the parties cannot see or cross-examine. The decision in Wachtel meant that a wife who abandoned her marriage could now not only expect to retain possession of her children but also be financially secure with a substantial portion of her husband’s assets. Mothers now typically receive between two thirds and three quarters of the family wealth. A principle developed in high worth cases in which wealthy husbands still retain a portion of their fortunes is applied to average worth cases in which husbands are left destitute. It has meant that hordes of fathers lose not only their children but also their homes and savings so their wives can continue to live to the standard to which they have become accustomed.
Ironically, a later case in the same year (Rogers v Rogers, 1973), rejected the Wachtel ruling, stating that it had been ‘plainly wrong’ and decided on the wrong legal premise. Why has Wachtel become the ruling precedent while Rogers has been forgotten? Dunn said further of Ormrod that he –
practically single-handed for twelve years, both in the Family Division and the Court of Appeal, revolutionised the whole approach to divorce law and moulded the present law of divorce. He refused to regard the Family Division as a court of morals and was essentially concerned with the practical consequences of divorce: the custody of the children, the provision of a house and proper financial provision for the wife and children.
Family court decisions have come to reflect the personal crusades of rogue judges intent on social engineering; Ormrod in turn influenced Denning who also saw nothing wrong in challenging Parliament and operating outside the law in order to force his own interpretation upon it of how society should behave. Senior family judge Sir Paul Coleridge observed that Parliament has brought this situation about by refusing to legislate properly on matrimonial matters (Coleridge, 2011); it has shirked its responsibility and allowed laws to remain in place which apply to a society long since vanished; it hasn’t considered divorce reform since the changes of 1971 which were themselves the result of a Royal Commission from 1956.
The introduction of the no-fault principle was completed in 1976 by the insertion of ‘special procedure’ which removed from judges the obligation to consider a parent’s behaviour before apportioning assets or children. The aim was to accelerate divorce cases through the courts and to reduce legal aid. Allegations of ‘unreasonable behaviour’ were no longer subject to judicial investigation and were merely ‘rubber stamped’. The pendulum had swung powerfully from advantaging men to severely disadvantaging them. Those who imagine this is fair, and makes up for centuries during which women were disadvantaged should consider that today more children lose a father in 3 months than lost a mother in the whole of Queen Victoria’s 63 year reign.
The intention to allow divorce only when irretrievable breakdown was proven, gravely doubted even at the time, manifestly failed: inquiries are non-existent when the respondent does not defend and divorce has become quicker and easier (Walker, 1996). By feminists the 1969 Divorce Reform Act
was seen as a wonderful weapon of liberation, freeing women from brutal husbands or hidden lives of mental torment and frustration. It was used relatively rarely, of course. But it seemed an uncomplicated, good thing, as beneficial to women as the pill, in those early, heady days of women’s lib (Ashley, 2006).
True, some adults were liberated from abusive marriages, and more were freed from loveless ones, but it is our children who have paid the price through greater poverty, impaired academic achievement, poorer mental and physical health and the higher likelihood of involvement in crime and drug and alcohol abuse. The elimination of fault absolves the petitioner from personal responsibility, and allows her to subject her children to this abuse with a clear conscience.
The entirely reasonable factors the court is under a statutory duty to consider when making a financial award on divorce are set out in Section 25 of the forty-year-old Matrimonial Causes Act 1973 and include ‘the conduct of each of the parties’. The welfare of any child remains paramount. In 1984 the Matrimonial and Family Proceedings Act added a clause encouraging the court to make orders only of sufficient duration to enable the payee ‘to adjust without undue hardship to the termination of his or her financial dependence on the other party’. Judges, however, are inclined to ignore these statutory obligations and make up the law themselves through the process of precedent, without the approval of Parliament and according to judicial whim. Since 1857 marriage had conferred a mutual obligation to support the other partner which extended beyond divorce; in the 2000 case of White (White v White, 2000) Lord Nicholls condemned this principle of mutual need as discriminatory and introduced the principle of equal division of marital spoils. No law was passed to approve this and there was no research, no consultation and no public debate; furthermore, the change was retrospective and affected all marriages entered into before the ruling applied. Perversely, the new principle did not apply to White itself, in which the wife received only a third of the assets.
Coupled with Denning’s principle that a stay-at-home partner’s contribution to the marriage is always equal to that of the bread-winner, these principles have changed the way finances are divided up on divorce, especially in high value cases, and often result in huge sums of money being transferred to a spouse who has contributed nothing or little to a short-lived marriage. The almost infinite discretion of the judges means that parties can be persuaded to spend similar sums on armies of lawyers and forensic accountants. Because the courts ignore the 1984 amendment, financial awards can continue for decades: in Evans (Evans v Evans, 1989) the husband had been paying for 35 years and was only successful in his application to end the payments when Mrs Evans sought to hire a hit-man to kill him; a wife’s bad behaviour had become so inconsequential that John Balcome could reject her appeal with the extraordinary words, ‘it is not every homicide, or attempted homicide, by a wife of a husband which necessarily involves a financial penalty’.
The UK technically does not have ‘no-fault’ divorce (an expression lifted from car insurance) in the same way that many jurisdictions have. The requirement to wait two years is considered a safeguard, but it obliges most couples, unwilling to wait that long, to use ‘unreasonable behaviour’, with the necessity of making – often unjustified – allegations against each-other. Once divorced couples can then proceed to protracted fighting over the assets of the marriage, including the children. In Scotland the waiting period is only one year, no allegations need be thrown, and disputes over finances and children must be resolved before the divorce is granted.
Ironically it is the abolition of marriage as the result of divorce reform which most threatens what US campaigner Professor Stephen Baskerville calls ‘the divorce industrial complex’ (Baskerville, 2007) – the huge profit-greedy gravy train which is now hauled along behind the divorce locomotive. By destroying marriage it has destroyed its foremost source of sustenance. Fewer marriages mean fewer divorces, and the rate has declined from its peak in 1992 to the lowest rate since records began. The industry must find new ways to sustain itself and maintain high levels of litigation. Part II of the Family Law Act 1996, introduced by John Major’s government, would have established full no-fault divorce and abolished marriage in all but name, but in January 2001 Labour chose not to enact it. Lawyers and the judiciary want to push reform further, therefore, and introduce a fully no-fault system without even the existing inhibitions. The family lawyers’ association Resolution is leading the campaign.
The then President of the Family Division, Nicholas Wall, had another go at the 2012 conference (Wall, 2012), and spoke of the process ‘which is in fact administrative, but which masquerades as judicial’; he added that he could see no good argument against no-fault divorce. The judges argue that trying to confine adults’ behaviour by restricting their access to divorce is condescending, and that it encourages false allegations of unreasonable behaviour in order to secure a swift separation which then further inflame an already tense situation. This in turn, they argue, introduces hostility which leads to contested hearings over custody. Lawyers are forced to draft petitions which don’t provoke the respondent gratuitously, yet convince the court a divorce is justified.
Curiously, it may be the efforts of one currently excluded group of people to win entitlement to marry which will ultimately see the introduction of full no-fault divorce. Demands in the Marriage (Same-Sex Couples) Bill to introduce same-sex or ‘equal’ marriage floundered on the rocks of adultery and consummation. A rejected amendment tabled by MP Greg Mulholland to repeal the Marriage Act 1949 and the Civil Partnership Act 2004 and remove clauses in the Matrimonial Causes Act 1973 for the ending of marriages on the grounds of adultery or non-consummation would have taken us so much nearer no-fault divorce that legislators might have thought it better to go all the way (Cecil, 2013).
The arguments for retaining fault are persuasive: most divorces – 85% to 90% – are low conflict and driven not by an unhappy marriage but by one unhappy spouse; most unhappy spouses are married to someone who is happy with the marriage (Waite, 2002). Neither party is significantly at fault and it makes as much sense to work to hold the marriage together as it does to destroy it. Two thirds of unhappy couples who decide not to divorce are happily married 5 years later (Ibid.). In a high conflict divorce it is usually clear which party is at fault: one party has committed adultery or behaved unreasonably, or they have chosen to abandon their marriage vows and default on the marriage contract. In such cases the petitioner needs to have that fault affirmed by the court: they need to feel vindicated, that someone acknowledges how they have been betrayed. Failure of the law to recognise this is equally likely to be the cause of resentment and subsequent feuding over finances or child custody and contact. Where there is violence or abuse no-fault divorce does not necessarily allow the innocent party an escape route and is more likely to be exploited by the abusive party to secure custody of the children or possession of the family home.
In 2007 Maggie Gallagher and economist Douglas Allen showed that the shift from fault to no-fault divorce had little to do with fault and was better represented as a shift from mutual consent to a unilateral decision to end a marriage,
The most significant practical legal change created by ‘no-fault’ divorce in grounds was that it licensed unilateral divorce: for the first time, one spouse could successfully petition for divorce over the objections of his or her spouse, without alleging any grounds.
In The Abolition of Marriage Gallagher dubbed divorce-on-demand ‘unilateral divorce’ as it allows, with the connivance of the judiciary, either spouse to end a marriage without infraction or agreement by the other and to breach the marriage contract without liability for the costs. It takes the power to end a marriage away from the couple and hands it to the court,
The spouse who leaves learns that love dies. The spouse who is left learns that love betrays, that he or she has no control over the terms of marriage. Neither the culture nor the courts will enforce any commitment. The rule is, He who wants out, wins (Gallagher, 1996).
‘Fault’ divorce does not apportion blame; it encourages accountability and prevents one party playing the system and taking advantage of the other. No-fault divorce increases the probability that one spouse will use divorce to disadvantage the other (Allen D. , 1998) and so increases divorce within a population. No-fault divorce ends marriage as a covenant and fails to appreciate the benefits that marriage confers on society.
This audacious social experiment created a unique and unprecedented legal anomaly in which one spouse could end a marriage without agreement or fault by the other and break the marriage contract without liability for the costs: Robert Whelan, deputy director of independent think-tank Civitas, believes the ‘essential element of contract law is abrogated’ (Whelan, 1995). Because of the belief that divorce is no longer the fault of either partner, the innocent parent who didn’t want the divorce is held equally responsible for ending the marriage and for violating the contract. It disregards the fact that one parent has put their selfish desire to opt out before the basic right of their children to a family. This creates the illusion that the divorce epidemic is caused by warring parents whose immature and irresponsible behaviour entitles the courts – and through them the state – to assume parental authority. Lawyers no longer need to trouble themselves about justice, about which partner is responsible for the breakdown of a marriage, since now both partners can be held responsible. Thus, far from eliminating the concept of fault, the new laws impose fault on the innocent party, who can be summoned to court despite having done nothing criminal and under a presumption of guilt for which there can be no defence. Removing the consequences of bad behaviour actually rewards it, and encourages others to behave badly in their own marriages.
The angry and uncooperative disenfranchised parent must be re-educated to accept the falsehood that it isn’t the system which is dysfunctional but he as a parent; he isn’t taught about the harm divorce will do his children or the social importance of keeping families together: he is indoctrinated into acquiescence to unilateral divorce. The court will then reward the defaulting partner with possession of the house, much of the previously shared wealth and, best of all, the children. Divorce apologists pretend that it is both parents who inflict divorce on their children but in truth it is only one parent who inflicts the divorce on both the children and the other parent, and who then profits by retaining custody. Divorce emerges not as a mutually agreed arrangement between partners whose marriage has come to a natural end, but as a unilateral power grab by which one parent (usually the mother) may abduct the other’s children. Custody defines not merely with whom the child lives, but who has power over him; custody is redefined as the power to exclude the other parent.
These laws were not introduced in response to public demand but as a result of lobbying by lawyers who saw a business opportunity and by feminists for whom divorce is an expression of feminine initiative and independence. They prevent couples from separating privately and enable the state to involve itself in the private lives of individuals in an intrusive and invasive way which marriage cannot rival. Unilateral divorce is now a touchstone of ‘progressive’ liberal governments and a ‘human right’ along with legalised abortion and same-sex marriage. Marriages cannot now be dissolved without the intervention of all the divisions of the state; by its very nature unilateral, involuntary divorce necessitates the forced eviction of parents from their homes, the confiscation of their property, and separation from their children. Parents who resist this arrogation by the state of their responsibilities are labelled criminals. Parenthood itself is criminalised.
Many popular assumptions about family justice are false. Husbands do not initiate divorce and fathers seldom abandon their children willingly. Though we hear endlessly from politicians about feckless fathers, they never tell you these fathers are under a court order which cruelly limits their contact, or that they have been forcibly driven from their homes. It is also assumed that women have little interest in divorce because they have more to lose. On average a woman’s standard of living declines more rapidly than a man’s after divorce. Women are less likely to remarry (Glick, 1980) (Cherlin, 1992)– particularly when they have dependent children – and so may remain relatively poor for longer; they find getting jobs more difficult for the same reason. Women’s quality of parenting also falls significantly following divorce.
When divorce rates increased following the introduction of no-fault divorce (or its equivalent) it was assumed it was husbands who were driving the increase but this wasn’t the case. Prior to 1857 wives had accounted for only a handful of divorce petitions but by 1900 they were lodging 40% (Stone, 1990). They overtook men in the 1920s, and reached a peak in 1993 with 118,400 petitions while husbands have been fairly consistently applying for between 40,000 and 45,000 each year since the 1969 Divorce Reform Act. In 2011 wives applied for 77,000 divorces and husbands for 40,000. One of the factors driving this increase is the expectation parties have of walking away with the proceeds of the marriage.
In 2000 professor of law Margaret Brinig and economist Douglas Allen examined 46,000 divorce cases (one of the largest studies ever undertaken) and assessed the role played by the expectation of child custody,
Children are often the most valuable assets in a family. As such, custody is expected to be a critical issue in divorce filing behaviour…
It is expectations of custody that drive divorce filing. By making a preemptive filing, the wife may be able to secure rights such as child or spousal support that require court enforcement. When the wife files, she is often given temporary custody of the children. Temporary custody, like possession, tends to be ‘nine tenths of the law’ and plays a role in the assignment of permanent custody, especially where the divorce does not occur for some time (Brinig & Allen, 2000).
Brinig and Allen went on to investigate how common in divorce cases this strategy was; out of 21 variables they found overwhelmingly that the factor determining which partner filed for divorce was the expectation of child custody. Even when other variables are set to their maximum, adding the probability that the wife will get custody increases by more than 7 times the likelihood that she will file for divorce.
Divorce without custody means giving up a large part of the joy of being a parent—while continuing the financial responsibility for the child. The interesting feature of the custody variables is how large they are. These variables dominate the regressions and are completely robust to changes in samples. Despite neutrality in the custody laws, it remains true that judges are inclined to award children to women.
These laws introduced to liberate women from dependence upon men were designed so that mothers could leave and take their children with them, on the assumption that if they were not allowed to they would be forced to remain in abusive relationships. Giving mothers the right to take such actions, however, enabled them to make unilateral decisions about their children’s lives without input from the children’s fathers; worse, it established the lone parent model of child custody as the norm.
Rogers v Rogers,  2 All E.R. 361, 363 (Court of Appeal 1973).
Wachtel v Wachtel,  1 AER 113 FD (Family Division 1973).
Evans v Evans, 1 FLR 351 (Court of Appeal 1989).
White v White,  UKHL 54 (House of Lords 2000).
Allen, D. (1998). No-fault divorce in Canada: Its cause and effect. Journal of Economic Behaviour and Organization, 37, 129.
Ashley, J. (2006). Dumping your wife is now as easy as trading your car. The Guardian.
Baskerville, S. (2007). Taken into Custody: the War against Fathers, Marriage, and the Family. Cumberland House.
Benson, H. (2010a). Married and unmarried family breakdown: Key statistics explained. Bristol: Bristol Community Family Trust.
Brinig, M. F., & Allen, D. W. (2000). These Boots are Made for Walking: Why Wives File for Divorce. The American Law and Economics Association.
Cecil, N. (2013, April 5). MP calls for separation of civil and religious marriage. Evening Standard.
Chapman, J. (2010, January 21). Marriage IS what matters most to family stability as only 3% of unmarried couples stay together until their child is 16. Daily Mail.
Cherlin, A. (1992). Marriage, Divorce, Remarriage.
Coleridge, P. (2011). Does Family Law Shape Society or Vice Versa? Westminster: Care.
Dunn, R. (1993). Sword and Wig: the memoirs of a Lord Justice. Quiller Press.
Gallagher, M. (1996). The Abolition of Marriage: How We Destroy Lasting Love. Regnery Publishing.
Glick, P. (1980). Remarriage: Some Recent Changes and Variations. Journal of Family Issues, 1, 455-478.
Stone, L. (1990). Road to Divorce, England 1530-1987.
Waite, L. B. (2002). Does divorce make people happy? Findings from a study of unhappy marriages. New York: Institute for American Values.
Walker, J. (1996). Divorce reform and the Family Law Act.
Wall, N. (2012). Annual Resolution Conference: Speech by Sir Nicholas Wall, President of the Family Division. Resolution.
Whelan, R. (1995). Just a Piece of Paper? Divorce Reform and the Undermining of Marriages. London Institute of Economic Affairs.