From divorce to gender, our laws should not be changed on a whim

While social reforms are always needed, there can be dangers in trivialising tradition

It is grimly amusing that “unreasonable behaviour” is grounds for divorce in English law. After all, has there ever been a marriage in which both partners have not, sometimes, behaved unreasonably? Isn’t that idea catered for in the “worse” bit of the “for better, for worse” of the vows? Unlike adultery and desertion – the other behavioural grounds for divorce – unreasonable behaviour is common (though in greatly varying degrees) to the entire human race.

Anyway, this week Mrs Tini Owens lost her divorce appeal to the Supreme Court over her husband’s “unreasonable behaviour”. It upheld the decision of a lower court, which decided that Mrs Owens’s evidence of what she called his “moody and argumentative” attitude towards her was “at best flimsy”. Her evidence did not show that he had “behaved in such a way that she cannot reasonably be expected to live with him”. (Mr Owens had denied unreasonable behaviour: he thought the pair could “rub along”. )

Mr Owens is a prosperous 80-yearold former mushroom farmer from Gloucestershire, described in the first court case as “somewhat old-school”. Mrs Owens is now 68. In June 2012, she consulted solicitors about a divorce, but did not pursue it. In November of that year, she started an affair, which ended a year later when Mr Owens found out about it. In February 2015, she moved out. She now lives next door in a house that he owns.

Because she moved out in 2015, Mrs Owens will anyway be able to divorce Mr Owens in February 2020. The five years of separation which will then have elapsed legally entitle her to do this without his agreement. It was not for the Supreme Court to decide why she chose “unreasonable behaviour”, rather than separation or her own earlier adultery, as her grounds for divorce, but it seems reasonable to guess that this might have annoyed Mr Owens. He might have felt: “She carries on with someone else. Then she walks out and lives in another house belonging to me. Why should I agree that I’ve behaved unreasonably in order to make it easier for her to divorce me?”

One must not take sides. Mrs Owens may have been driven to distraction by her husband and his mushrooms, tried desperately to console herself with someone else and then, when this failed, wished to expose Mr Owens’s disparagements of her in front of others (a tendency she complained of in court) to a wider world.

It is all very sad, and a tremendous waste of time. As Lord Wilson says in his judgment, the degree of conflict over the lawsuit itself suggests that the marriage has broken down.

Two general points seem worth making, however. The first is that the clamour which has gone up as a result of this case for “no-fault” divorce is strange, since we have been here before.

The concept of “unreasonable behaviour” was deliberately introduced into our divorce law (in 1969) to replace the word “cruelty” and sweep away the old notion of “matrimonial offences”. As Lady Hale, the president of the Supreme Court, explained this week, it was supposed to be a “no-fault” concept. The 1969 law reform, she said, was “conduct-based”, not “fault-based”. The definition of unreasonable behaviour was not an absolute: it was about what a spouse could reasonably be expected to live with.

It turns out that it is not so easy to legislate liberally against the idea of fault in marriage, because it is intrinsic, in a great many cases, to why people seek a divorce. If you found no fault, after all, why would you want to part?

The second point is that Mr Owens – whether his motives are base, noble or (more likely) somewhere in between – has reminded us of something. Marriage is, among other things, a contract. If one party wants rid of it, it may be a barren exercise to try to save the marriage, but that does not dissolve its contractual character. It’s not unreasonable, you might say, for Mr Owens to dispute a legal claim that accuses him of being unreasonable.

The case against the old system of difficult, shaming, offence-based divorce was strong. It inflamed hatreds between the parties and encouraged people to lie. But the much more liberal state of the law nowadays, and the near-certainty – following the Owens case – that it will be liberalised further, is fraught with difficulty, too.

Its most basic problem is that it has not, despite its intentions, improved the state of marriage – though it has eased the means of escape from a bad one. In his judgment this week, Lord Wilson reminded us that, in 2016, only 17 divorce cases proceeded to a final contested hearing, as Owens vs Owens has done. In the same year, 114,000 petitions for divorce were filed. It is hard to be proud of that achievement.

Some divorces are much, much nastier than others, of course, but few are a bundle of laughs – for the divorcing couple, their families, their children, even their friends and workmates. They are like injuries in a world war – some slight, but most painful, some disabling, some even fatal – and to be found in every street in the country.

If you make divorce dependent merely on a unilateral decision of one party (which is what, despite the Owens case, has happened), don’t you help reduce marriage itself to little more than a whim, thus contributing to human misery? The marriage service in the Book of Common Prayer is called “The Form of Solemnisation of Matrimony”. Have we presided, in modern times, over the form of its trivialisation?

This change is part of wider attitudes that cause harm. Social reforms are always needed, but if we regard past rules merely as antediluvian practices to be escaped, we will not learn from our ancestors.

Take, for example, the transgender question. It is true that some people are not sure whether they are male or female (or neither) and feel “trapped” in their existing bodies, and that such people have been treated unkindly in the past. It does not necessarily follow, however, that self-identification of one’s sex should replace objective physical fact. There are wider consequences to think about.

At a time when women have fought to define the rights of their sex and to be prouder of themselves as women, is it right that men are allowed to become women just by saying that they are? This is not just a question of who is allowed into which public lavatory, but of how human identity itself is defined. It is highly unlikely that the distinction between male and female – basic to all societies and to the perpetuation of humanity – can be dissolved by the language of personal preference.

Or take the question of assisted dying. Individuals who seek it, and their supporting euthanasia organisations, argue that people have a right to get others to help them die. They see it solely as an individual human choice. A conservative view looks at the matter more widely. It notes long-standing traditions against self-slaughter. It is sensitive to the moral problem of getting doctors and others who are professionally committed to “do no harm” to help kill a fellow human being. It worries about societies that want old or very ill people dead.

Go slower. The English rule of law is based on precedent. When a change of law is unprecedented, it is probably unwise.