In my blog of 17 December (‘Modern Sexual Morality’), I stated that in my view, it would be sensible if our society were to formulate some new ethical and legal principles governing civil marriages and partnerships, involving – among other things – a clearer separation between the thinking on these and Christian marriage (as well as religious marriage in general). I argued that the way we view civil marriages and extra-marital, committed partnerships continues to embody some of the moral standards and judgements associated with our Christian tradition, even though some of the types of relationship themselves could be deemed to be morally at fault on a more dogmatic interpretation of Christian teaching.
In general, the combination and interplay between Christian and liberal principles (what I term ‘Christo-liberalism’) create a great deal of ambiguity about sexual ethics. This contributes to undermining marriage and stable relationships, in that the permissiveness that society tolerates and even encourages in some areas comes into conflict with Christian-derived standards that are expected in other areas. This exacerbates the tendency for individuals in relationships to have different expectations about the degree and type of commitment that are involved; and, indeed, it makes the whole basis for commitment as such more difficult and unpredictable.
In my blog of 16 December (‘The Paradoxes Of Gay Marriage’), I argued in favour of a tripartite arrangement for marriages and formally recognised partnerships: religious marriage (heterosexual, according to the provisions of the faiths concerned); civil marriage (open to both straight and gay couples); and some sort of looser civil partnership arrangement recognising and affirming committed extra-marital partnerships (straight and gay). In the present blog, I will attempt to map out the shape that these two kinds of civil marriage / partnership could take once the inherited Christian moral demands and expectations are stripped away from them. This is not to undermine Christian marriage; quite the contrary. Both Christian and civil marriage could be strengthened if a more rigorous and consistent set of distinct standards and values relating to each could be clearly articulated and agreed, while family law were modified in accordance with those new principles.
1 Civil marriages (gay and straight)
Civil marriages already exist, of course: those carried out, in the UK, in a register office. They are not yet available for gay couples; although I would propose extending them (but not church and other religious marriage) to gays and lesbians.
Some key points in this proposed new ethics of civil marriage, which would then need to be reflected in legislation, are as follows:
1.0 Guiding principles
1.0.1 The relationship between the spouses is accepted as being potentially impermanent and non-exclusive
Under the prevailing mores of our society, civil marriages are in fact, if not in right, predicated on an assumption that they might not last and can be dissolved. The very existence of legal divorce means that a civil marriage, as a legal contract, is reversible. Christian Churches vary in the extent to which they accept divorce. So long as they are held to be valid, Catholic marriages are believed to be permanent: even if a couple obtains a civil divorce, the Church does not recognise it, and the individuals are not able to re-marry in a Catholic church. The Church of England also in principle does not permit re-marriage in church for the same reason (the definitive character of the original wedding vows); although it does recognise divorce and give church blessings to divorced individuals that are obliged to re-marry in a civil ceremony.
This was of course the reason why Prince Charles and Camilla Parker-Bowles were forced to get married in a register office. By an interesting quirk, there would have been no impediment to the royal couple getting married in church if the Prince had been Catholic (. . .). This is because Mr Parker-Bowles (a Catholic) had obtained an annulment for his marriage to Camilla, presumably on the basis that Camilla had not really meant her vows (including promises of life-long love and fidelity) when she made them. Annulments mean that the original marriage effectively never existed as a true sacramental union; so that Camilla was not divorced but single in the eyes of the Catholic Church, and so eligible for a marriage to a widower (Charles).
It is, on one level, entirely reasonable that the Church or any religion should demand of those of its followers who get married that they should promise to love each other and remain faithful to each other permanently and exclusively, and that this should be part of the core concept of marriage (and that in the absence of such a commitment – as in the case of Camilla Parker-Bowles – the marriage is invalid). But is it reasonable that the state should expect such a commitment from couples contracting a civil marriage? It is not part of the remit of the state to assert any kind of duty for one citizen to love another to the exclusion of any other sexual relationship, and to maintain that love indefinitely. In a way, it is almost a case of the state over-stepping its rightful areas of jurisdiction and competence that the civil marriage or partnership ceremony should involve declarations of life-long love and fidelity; apart from the fact that these promises could appear unrealistic from a psychological or spiritual point of view without some sort of appeal in faith to a higher authority than the state – although Christian marriages, according to the statistics, are just as prone to break up as civil unions. Hence, the promise of life-long love and fidelity is an example of what I mean by Christo-liberalism: the civil authorities and law effectively taking on one aspect of the Church's role and value system, and expecting a Christian-type commitment from a secular marriage.
Under my proposed new framework, marital infidelity (adultery) would no longer be a sufficient justification in itself for obtaining a divorce. This is because, built in to the concept and legislation for civil marriages, and perhaps even into the wording in the wedding ceremony, would be a realistic expectation that infidelities on both sides might well occur. In order for specific acts of adultery to be taken into consideration when deciding whether to authorise a divorce, they would have to be viewed in the context of the whole relationship; i.e. whether the relationship as a working partnership had broken down, and whether more harm (emotional, practical, financial, etc.) to all affected, including children and other dependants, would be done if the couple stayed together or separated. There would also be a more formal process for trying to achieve reconciliation between the spouses, which I will go into further below.
But if a civil marriage cannot reasonably demand life-long love and fidelity, what the state does have the right to expect from marrying individuals is a contractually binding, reciprocal duty of care on the part of the spouses for each other and for any dependants, particularly children and extended family members, e.g. elderly relatives. This leads to my second new principle for civil marriages:
1.0.2 Permanent, contractually binding duty on the part of the married individual to look after the needs of their spouses and other dependants, including if the relationship breaks down and the marriage is dissolved in a divorce
The idea behind this is that even if there is a realistic acceptance that feelings may change and the marital relationship may come to an end in emotional terms, the commitment to marry someone should involve accepting that one is taking on a permanent responsibility for their care. In a religious context (and in the current Christo-liberal version of civil marriages), this responsibility is viewed as a natural extension of the commitment to love one’s spouse for the rest of one’s life. In a de-Christianised civil marriage, the continuing nature of this duty of care becomes a matter of social justice. On marrying, spouses make promises to one another that involve decisions affecting the whole subsequent course of their lives (careers, relationship possibilities, etc.). In addition, the state provides incentives for people to get married and have children through the tax and benefits system. Divorce represents a considerable economic cost through the greater dependency of single parents on social services and benefits; through the poverty that it can bring about; and through the personal and social problems experienced by children that are affected by the break-up of their parents and continuing instability in their family lives.
Ensuring that, as much as possible, divorcing individuals are held to the commitment of ongoing care they made when they married is a means to compensate their spouses for the sacrifices they have made for the sake of the marriage and their partner; and it is a way to lessen the other social and economic costs. The increased legal obligation to provide financial support and exercise an ongoing duty of care towards spouses and dependants would be a function of an enhanced set of rights and responsibilities in marriage.
1.0.3 Re-definition of the meaning of the married state itself, and the rights and responsibilities that accompany it
1.0.3.1 On marrying, individuals would be deemed to have established a permanent relationship between themselves, their spouse and their spouse’s family: they become a member of the spouse’s family. After any divorce, they continue to be a member of their former spouse’s family: they can no more sever that tie than they could cease to be the parent of any of their children, or the aunt and uncle of nephews and nieces with whom their children are genetically related.
This is a formalisation of a principle that also applies to Christian marriage. But again, in the civil context, the purpose is not to imply some sort of ontological union between the husband and wife (who in Christian terms become ‘one flesh’, and hence one family) but to express the truth that families continue even when parents split up, and to encourage the relationships both in the nuclear and the extended family (e.g. between parents-in-law and children-in-law; or between uncles and aunts, and nephews and nieces) to be healed and to prosper, emotionally and materially. When couples marry, they effectively take on the roles and responsibilities previously exercised by their spouse’s parents towards their partners and towards other dependants in the family, including eventually the couple’s parents themselves as they need care in old age. This is the meaning of a father ‘giving away’ the daughter to his son-in-law in marriage: the husband takes on the role of care previously fulfilled by the father.
Formalising the principle that marriage makes the spouses permanent members of each other’s family – whether or not they have children who are then genetically related to the extended family – is a way to underscore the importance of the duties and promises towards the whole family that spouses make when getting married: they can no longer consider that they have a lesser duty towards relatives with whom they are not genetically related than towards those with whom they are.
It may seem unnecessary to encode family relatedness in law in this way. However, I would argue that this is not entirely arbitrary but corresponds to the deeper psychological and socio-anthropological significance of marriage: that an individual does not just marry another individual but marries into an entire family, towards which they then have social, moral and legal responsibilities. Enshrining these things in law would be a way of realigning modern Western social practice in the marriage area with these universal psychological and socio-anthropological meanings, which are more explicitly expressed in less secularised cultures and religions that still place a greater emphasis on the extended family, e.g. Hinduism and orthodox Judaism. Along with greater responsibilities, this also gives married persons greater rights as integral members of their spouse’s family.
It might well result from this proposed change to current social and legal practice that the family ties that a re-marrying person felt towards their second acquired family might be weakened if they continued to view their first acquired family as family. But then the provisions of the law (discussed further below) setting out both the continuing responsibilities towards the ‘divorced family’ and those towards the family of the second spouse are intended to reinforce realistic, responsible and caring attitudes and behaviour towards both families. In any case, the purpose of formally instituting the idea that marriage involves marrying into a whole family – for good – is not to weaken second marriages but to help ensure, wherever possible, that first marriages and their socially beneficial effects endure.
1.0.3.2 Spouses have a particular responsibility of care towards their children and stepchildren, along with a clear set of rights. Establishing the principle that, even after a divorce, an individual continues to be a member of their spouse’s family makes it even more difficult for divorced parents to ignore the needs of their children or any children of their spouse from a previous relationship or marriage with whom they have also established any sort of parental relationship. In contrast to the view set out above that spouses cannot be under the obligation to love each other permanently and exclusively, they should be considered to have at least a strong moral obligation to love their children; and a formal, legal obligation to provide for their children’s material needs, even if they are not able to provide for all their emotional needs.
The new law and practice of civil marriage would therefore include strict measures to ensure that absentee parents continued to look after their children’s and stepchildren’s financial and material needs. And at the same time, there would need to be a better way to ensure equal treatment in the assessment of which parent was best-placed to have the greater share of custody, and to enable regular and sufficient access to the children for the parent not awarded custody. In particular, there should be no bias in the determination of these things towards the party in the divorce viewed as being more ‘wronged’ in the marriage break up; and no assumption that mothers are ‘naturally’ more suited to being the main carers than fathers.
These two ideas (the mother as the wronged party and the more able carer) currently often go hand-in-hand and are part of the Christian inheritance that has been taken forward in modern secular (Christo-liberal) marriage. This leads to custody decisions often being made on the basis of reward and punishment in relation to a moral judgement that is taken about unfaithful husbands having violated the ‘sanctity’ of marriage and of motherhood; ideas which clearly derive from the Christian history of our country. These judgements should really be regarded as irrelevant within a fully secular marriage institution. In particular, assessments about custody and access should consider the children’s needs and wishes (emotional, social and economic) first and foremost, and then the rights of both parents to continue to play an active role in their children’s upbringing so long as this will not be detrimental to the children in any way.
1.0.3.3 The above two provisions apply equally to straight and gay couples. As civil marriage would now involve a clear social purpose (cementing strong extended families and fostering responsible personal relationships), and a strict set of rights and responsibilities, there is no reason in a secular context why these elements should not be extended to gay couples as well as straight partners. This is what would give gay marriage a real social and cultural meaning beyond a ‘mere’ celebration of the love and partnership of two individuals. So, under the new regime I am proposing, gay spouses would be considered in law to have become permanent members of each other’s families by marrying each other. For instance, if one’s gay son gets married, his husband becomes one’s son-in-law; and the son-in-law becomes an uncle to any of his husband’s nephews and nieces; etc. And, just as in straight marriage, these family relationships and the associated responsibilities towards extended family members would be considered to continue to be in effect even after any divorce.
The same goes for the duty of care and maintenance towards spouses and children: this should also be considered to remain in effect just as much for gay divorcees as for straight ones. With respect to children, gay married persons should have full equality in terms of assessments of their suitability to become parents: through adoption or equal access to assisted reproduction, e.g. through artificial insemination (for lesbians) or surrogacy (for gay men). If either of the spouses were already a parent before getting married, there should also be no discrimination in determining whether or not the newly married gay couple should have custody over them (if this were disputed with the other parent), or which of the spouses should have custody over any children in the event of a divorce: again, the needs and wishes of the children should be paramount.
Whether or not one regards the advent of the gay family, and the use of artificial means of conception to enable gay persons to become parents, as desirable or morally acceptable is largely irrelevant within the context of a fully secularised marriage institution. Again, these are considerations and judgements that derive from the Christian tradition. The main concerns from the civil perspective are fostering strong family ties and responsibilities; and ensuring the maximum degree of continuing, stable care for family members and children that either already exist or who will be born to gay parents – whether or not society decides to extend the framework of marriage to such gay relationships and families. If that framework is created, this offers the chance of giving those children greater support and rights as they progress through childhood. But this involves society shedding its remaining prejudices about gay people and gay sex: its association as something inherently dirty and immoral that does not have a place alongside and within family life. And if society really decides that gay people are deserving and capable of taking on the elevated set of obligations and privileges that should be associated with civil marriage, then it follows that they should be viewed as capable of taking on responsible parenthood just as much as their straight counterparts.
1.0.3.4 A new language to describe family relationships is required to accommodate these new concepts of the permanence beyond divorce of family relationships that are sealed in a marriage, and the extension of these relationships to gay marriage. For instance, if lesbian and gay married couples either have children through some form of assisted conception or surrogate pregnancy, or adopt children, should both partners be called the mothers or fathers of their children respectively? In other words, should it be possible for a child’s two legal parents (either on the birth or adoption certificate) to be of the same gender? Currently, in English law, it is in fact possible for a child to have two legal fathers or mothers in the case of adoption by a same-sex couple. Interestingly, though, the language that is used about such families – either the official, legal terminology, or the informal language used by parents or children of gay adoptions to refer to their family relationships – tends to avoid phrases such as ‘two fathers’ or ‘both my mothers’; the words ‘parents’, in the formal context, or ‘dad(s)’ and ‘mummy/-ies’ etc. in the informal context, are often preferred.)
This issue of gay parents is a very wide-ranging question covering a multitude of individual circumstances. But in theory, in a civil context, there is no absolutely compelling reason why a child should not have two official mothers or fathers. The sources of objection to this idea are threefold: the Christian tradition (and other religious traditions); an argument from human nature; and psychology. The basic objection itself is similar from all three angles, i.e. that a child needs both a mother and a father, because this is the natural way that a child is procreated, brought up and comes to negotiate its own role in society, including gender role(s).
It is generally accepted that children do need both maternal and paternal care figures and role models in their lives. But the sad truth is that these are very often not their natural mothers and fathers, particularly in the case of adoption, which is of special relevance in the context of lesbian and gay parents. If a gay couple adopts a child, it is probably better for that child, emotionally and legally, for both partners to be legal parents – rather than creating an inequality, and increasing the potential for emotional turmoil in the event of a relationship break up, by allowing only one of the individuals to be legally regarded as the mother or father. And the point about encouraging gay adoption to take place – if it is going to take place at all – in the context of gay marriage and officially recognised gay family relationships is that this should also reinforce the extended family structures that can provide an additional source of caring maternal or paternal figures (in the shape of aunts, uncles, grandparents, etc.) to supplement the potential comparative absence of such figures from the child’s nuclear family.
One other observation that is worth making is that the argument in favour of the need for parental figures of both genders often presupposes that one or both of a child’s lesbian mothers, for instance, could not also serve as something of a model for fatherhood or masculinity. Gender should not be equated with anatomical sex. It is a commonly noted fact, for instance, that lesbian women often exhibit more conventionally masculine traits than typical straight women; and that gay men are often more overtly feminine or effeminate than their straight counterparts. So it is still possible for a child to learn about masculinity and femininity from same-sex parents. It is questionable, then, whether a child’s having two mothers or two fathers really does much long-term damage to their ability to develop their gender identity, sexuality and adult relationships in a ‘normal’ way; although the psychological impact of having same-sex parents should not be written off as insignificant. Maybe only time will tell what the long-term consequences will be.
Another question illustrating how society’s language to describe family relationships might need to evolve to reflect the changes I am advocating is how one would refer to ‘former’ spouses if a permanent relationship with a spouse and her / his family is deemed to be established in marriage. Common parlance would doubtless continue to employ terms such as ‘ex’ or ‘former’ to refer to previous spouses, even after any change in the legislation such as I am advocating. However, officially and logically, it might be better to designate these as ‘first’, ‘second’, etc. – e.g. a straight man who has married three times might refer to his previous wives as ‘my first wife’ and ‘my second wife’; and his third wife as ‘my current wife’.
You could argue that this is tantamount to sanctioning polygamy, in that it is implied that the conjugal relationship with previous spouses continues into subsequent marriages. And, in a sense, this is the case: a serial marrier of this sort would indeed be viewed as continuing to be related to his previous wives and their families. So the law would have to be explicit about the different types of relationship involved – family connection versus primary emotional / sexual relationship – and the rights and responsibilities in each. Determining a workable balance between the different relationships concerned would be part of the process of establishing the conditions and the settlement (financial and personal) for any marriage break up. It would in theory be possible for any such divorce and re-marriage arrangement to stipulate – within agreed limits – that wife No. 3 accepted that her husband could maintain an emotional or even sexual relationship with one or both of his previous wives, as the mother of his children for whom he continued to have a legal duty of care. Once you eradicate as part of the fundamental concept of marriage the idea that it involves an obligation for a permanent and exclusive sexual relationship between the spouses, there is no theoretical reason why situations of this sort should not arise if this was with the mutual consent of all the parties. Indeed, situations such as this do occur in real life today without the possibility to accommodate or negotiate them within the context of Christian-derived models for marriage; so that they frequently result in separation and divorce, which could be avoided if more realism about human behaviour and contemporary mores were built into the marriage model. All the same, the ‘current’ wife of such a serial marrier should have special privileges that preserve her right to reasonable treatment and for the promises made to her in marriage to be backed up by legal protection.
Is the husband in the above example in reality any more of a polygamist than under the current legislation, in which he would perhaps more accurately be described as a serial monogamist? The actual relationships and behaviour could well be identical in both contexts, even with respect to spouses maintaining sexual relationships with their previous spouses, as occasionally happens. The new model for marriage would recognise these realities while protecting the rights and security of all those affected by infidelity and, effectively, by polygamy.
Following on from the above observations, it would also be the case, for instance, that ‘former’ mothers-in-law or sons-in-law should now be called first, second, etc. mothers-in-law / sons-in-law. Familial relationship between non-genetically related uncles / aunts and nephews / nieces would also be viewed formally as continuing to exist after any divorce. Establishing in law the continuance of these types of relatedness could be important to ensure that strong relationships that already exist in the extended family are protected and promoted after a divorce has occurred. The same could be said, for instance, about relationships (and relatedness) between grandparents and non-genetically related grandchildren (e.g. in the case of adopted children or stepchildren). For clarity, it might be necessary to refer to someone as ‘my niece from my first marriage’ or as ‘my (step-) granddaughter from my son’s first marriage’, for example. Nieces and nephews themselves would not have the same dilemma, as ‘Auntie’ and ‘Uncle’ are often used for members of the extended family and for friends of the family, so there should normally be no need to explain the exact relationship in the terminology itself.
In summary, legal changes of this sort could have a positive impact on social practice, which is currently imprecise about what – if any – the continuing familial relationship is between divorced persons and their former spouses’ extended families. If the law stipulates that a continuing familial relationship exists, this creates the social conditions whereby personal relationships can also continue, where this is felt to be of mutual benefit to the parties concerned.
When it came to mapping out things like gay marriages and multiple marriages in family trees, these need not become significantly more complicated than they are already, as they mainly focus on genetic relationships in any case. More complex charting of relationships by marriage alongside genetic relationships could easily be added on. If the genetic relationship is not known – e.g. if a lesbian married couple deliberately decided to remain ignorant about which of the two women was the biological mother (for instance, in cases of in vitro fertilisation), and the identity of the biological father was also unknown – then the family tree could indicate both mothers as being the parents: instead of the usual pairing of father and mother as the next generational link, the tree would indicate two mothers. If the genetic mother is known, then the vertical line down the tree to the next generation could come from the biological mother, while a horizontal line indicating matrimony would still link the two women. In the same example, if the biological father were known, another type of horizontal line indicating parenthood could connect the genetic parents.
1.0.4 New processes for attempting to bring about reconciliation and for dissolving marriages would be required
Under the new reinforced model for civil marriages I am proposing, married couples should not be allowed to divorce unless a) they have been through a rigorous, formal procedure to determine whether their differences are irreconcilable, and b) a binding, enforceable legal agreement has been reached setting out the individuals’ continuing obligations towards their spouse, nuclear family (e.g. children) and even, in some instances, members of their spouse’s extended family; and also setting out their rights in relation to the same persons. These two processes would need to be carried out in a co-ordinated way, in that disputes over responsibilities, and over the use of wealth and property, are often central to marriage break-downs in the first place.
The type of process I would envisage is, in the first instance, a cooling off period of, say, at least two months following the decision by one or both partners to initiate divorce proceedings. This could be followed by anything from one to six months of consistent, verified attendance by both partners at counselling sessions provided by officially certified and monitored counsellors and organisations designed to effect a reconciliation, if possible, or to ascertain beyond doubt that a reconciliation is not possible.
The couple’s claims about their legal or moral rights in relation to money and property could also be discussed and assessed in a preliminary way as part of this formal process of counselling: one of the goals of the counsellor would be to try to disentangle any dispute over such material matters from the underlying emotional conflict. In this way, it might be possible to avoid further disputes over such matters if the ‘marriage-settlement’ process was taken forward to the next stage (winding up the marriage); or, indeed, if by resolving one side of the marital conflict (emotional or material), a resolution of the other aspect of the dispute could also be encouraged.
If, on the other hand, it is determined that no reconciliation of the married partners can be brought about, the second stage of the process would commence: determining a legal contract governing the divorce, which would set out explicitly the rights and responsibilities belonging to both parties consequent upon a divorce, and putting in place legal and financial measures to ensure that the terms of the contract are adhered to and enforced.
1.0.4.1 Aspects covered by the new form of divorce settlement could include:
· Financial arrangements: determining the extent and modality (e.g. one-off or continuous) of financial support, if any, to be provided by one of the divorcing spouses to the other and any dependants
· Custody and access: deciding whether one or both parents should be awarded custody of any children and stepchildren (including different arrangements for individual children, if desirable, most obviously in the case of children of previous marriages); and determining arrangements for access to the children for the other parent, including details such as the geographical distance that parents are allowed to live apart where this affects the provision of access; the amount and distribution (e.g. at weekends, holidays) of time the parent without custody is allowed or mandated to spend with their children; the particular needs, best interests and stated wishes of the children; etc.
· Details about continuing personal relationships between the parties to the divorce themselves, and between them and their extended families of which – under the new arrangements – both individuals continue to remain a part. This part of the settlement could provide a way to legally guarantee the right for continuing relationships and support between any children of the marriage and relatives such as grandparents, aunts and uncles. Provisions under this part of the ‘divorce contract’ could be divided between those that were legally binding and explicitly set out detailed practical arrangements (e.g. access to the children for grandparents); and those that represented a ‘Statement of Expectations and Intentions’, e.g. where one or both of the spouses expressed a wish to continue to maintain a meaningful friendship and working partnership with their spouse and her / his extended family after the divorce (whether shared children were involved or not). A statement of goodwill of this sort could be made even if the terms of the divorce meant the spouses no longer had either an automatic moral right or legal entitlement to a close relationship with their spouse beyond essential practicalities.
· Such a statement of expectations could also provide a formal framework for assessing the impact of any re-marriage on existing personal, material and sexual relationships. This is because part of the new arrangements for civil marriages would be that before a re-marriage could occur, there would need to be a review of the re-marrying person’s divorce settlement to see if any of its binding elements needed to be modified. This would require the consent of the re-marrying individual’s previous spouse. In addition, such a review would take into consideration the former spouse’s statement of expectations and intentions at the time of the divorce, in order to assist in drawing up a renewed statement taking the new marriage into account. This revised statement would attempt to reconcile, as much as possible, the expectations of the former and current spouses of the re-marrying person, so as to minimise conflicts and facilitate a good working relationship between them (necessary when mutual care for children is involved); and to ensure that, if the second marriage itself broke down, a formal statement existed setting out the expectations from the re-marriage that both parties had had when they contracted the marriage. The purpose of this would then be to streamline the process of determining the possibility of a reconciliation and (if that failed) the drawing up of a second divorce settlement.
A mutual statement of expectations could also be composed in advance of any first marriage, thereby serving as an informal alternative to a pre-nuptial agreement. (Couples could of course still conclude a formal pre-nuptial contract if they wished.) This would be a legally documented, but not necessarily narrowly enforceable, declaration concerning the economic, social and personal commitment that individuals were making to one another in their marriage. As such, it could help inform the reconciliation or divorce processes if the marriage did hit the rocks. The document could, for instance, spell out the couple’s expectations with respect to the exclusivity and permanence, or otherwise, of their sexual relationship as part of the more realistic, de-Christianised, but nonetheless legally and socially more responsible re-definition of the status of civil marriage I am advocating.
1.0.4.2 There should be tough legal provisions in place to enforce divorce settlements, if they are flouted, or to impose a settlement if one or both parties refuse to co-operate with the reconciliation and settlement process. The government has recently set out proposals along the lines I am suggesting, although I think the measures could go further. They could go as far as the facility to confiscate or freeze assets (not just withdraw money from bank accounts, as in the government's proposals), or the partial withholding or total withdrawal of custody rights if these were deemed to have been abused (e.g. if a parent who had been awarded custody on the basis that they remained a UK resident emigrated to Australia).
These tough legal penalties and incentives should have teeth. They are not something whose enforcement should be left to chance or to the ineffectual functioning of an anonymous bureaucracy such as the ill-fated Child Support Agency (CSA). Divorcing couples should have to disclose full details about their income and assets, as honestly and in as legally binding a way as they would when declaring these things for tax purposes. At the same time, the enforcement authority should have access to those assets and legal powers to freeze or confiscate them as a last resort to prevent divorcers from evading their responsibilities. Ultimately, some very stringent penalties should be available to enforce the decisions reached during the settlement process, including compulsory sales of assets and even imprisonment if the attempts to thwart a fair resolution of the financial and practical issues were considered to be especially serious or contemptuous.
1.0.4.3 Which agency or agencies would be involved in these processes of attempting to achieve a reconciliation, working to agree a divorce or separation settlement, and enforcement? Here again, my proposals diverge from those of the government. There would probably need to be a new national body to co-ordinate these tasks. But it would be advisable for these tasks to be run and financed at a local level, with only a loose national organisational framework to carry out necessary administrative and oversight tasks, and development of national strategy and policy. I envisage the new body as an offshoot of the current local register offices, co-ordinating the work of multiple service providers involved in the different processes, such as counsellors, lawyers, financial advisers and law-enforcement agencies. The work of this body could be financed largely – maybe exclusively – on the basis of fees paid by divorcing couples: perhaps on a percentage calculation linked to the value of the sums involved in the divorce settlement. There could be an initial upfront fee – by way of deposit – payable by the party suing for divorce.
The purpose of all these measures would not be to stigmatise divorce, as was the case in the past. But one objective they would be trying to achieve is to make couples think extra hard before going down the divorce route. Divorce should no longer be seen as an ‘easy option’ enabling parents to duck out of their responsibilities to children, partners or their wider family; or to provide an effortless transition to a new marriage. Indeed, if the reconciliation and settlement process resulted in a decision that, on balance, it was in the best material and emotional interests of all concerned that the marriage should not be dissolved, there might still be the possibility to negotiate some more flexible living and relationship arrangements as part of the mix. For instance, there could be an agreement that the wife and children of a husband who has been unfaithful could live in the marital home, while the husband would be free to live elsewhere with his new partner, so long as a new agreement on mutual rights and responsibilities (enshrined in a Statement of Expectations and Intentions) was adhered to.
1.0.4.4 What principles should be applied in assessing divorce settlements, especially the financial arrangements? In particular, should the principle of equality be systematically applied, i.e. the divorcing couple’s assets are simply divided into two equal portions? This is obviously a topical question as a result of recent legal cases. The spirit of the reforms that I am proposing here is that, wherever possible, the divorce settlement should aim to preserve a constructive relationship between divorcing individuals, particularly when the care of dependants is also involved. Simply splitting the couple’s material assets in half is not necessarily the best way to achieve this objective – whether this is because it provokes resentment on the part of a husband who sees his hard-won wealth being depleted by his ex-wife whom he sees – rightly or wrongly – as being motivated by greed; or whether, in a more general sense, this is because the focus is then directed towards material considerations rather than to the long-term emotional and practical consequences and needs of all concerned, not just the husband and wife.
So the new regulations should not just lazily enshrine the principle of equality, as if that would automatically compensate for any injustices that might be involved in the break down of the marital relationship itself, and for any harm suffered by grieving children. The outcome that is sought should be one of fairness: equity rather than equality of a type that is calibrated merely in mathematical, material terms. In the case of a family abandoned by a husband and father starting a new relationship, the aim should be to ensure that – wherever possible – the family does not suffer any disadvantages additional to those inherent to the family break up itself. This involves focusing on securing enough material assets so that the opportunities and the options in life that the wife and children had prior to the break up can be preserved or even enhanced, e.g. education choices for the children and opportunities for the wife (who may have sacrificed a career of her own for the sake of the husband and children) to make a fresh start in work and relationships.
To obtain a settlement of this sort does not necessarily involve splitting a husband’s wealth into two even halves. In fact, in cases where the husband is not especially wealthy, the consequence might be that more than half of his wealth was made over to his wife and children; so long as the husband’s ability to continue to develop his career and earning potential was not radically impaired. If this happened, it would also be unjust and ultimately counter-productive, as it would lessen the potential for the husband to a) improve his personal circumstances, and b) pass on some of the benefits to his first family as a voluntary gesture of care and goodwill, as much of the goodwill would have been eroded by the original settlement. This touches upon one potential flaw in the argument that the simplest and most practical alternative is always just to split a separating spouse’s wealth in two: this can damage the spouse’s ability and motivation to grow his or her wealth still further, which could then be of benefit to all concerned.
In addition, sanctioning the notion that jilted wives (or husbands) should automatically be entitled to half of their treacherous spouses’ assets could mean giving even more of a green light to greed as a motivation for getting married in the first place, and then for seeking a divorce. The point of the reforms that are being advocated here is that such motivations should not be rewarded or promoted by the system; that marriage should represent a serious commitment and set of obligations, which the divorce settlement is an attempt to uphold and fulfil.
In reality, however, cases where fabulous sums of money are in dispute are the exception rather than the rule; and the financial-settlement process would simply have to try to find the best compromise deal ensuring as fair a re-distribution of the family’s wealth as possible in the light of the needs of all concerned. Equally, it is in keeping with the principle of fairness that husbands who have been keeping their wives in a state of some luxury should expect to continue to have to do so, to a certain extent. The wives would be deemed to have a reasonable expectation of being looked after in this way, based on the commitment that was made to them through marriage, perhaps backed up by a Statement of Intentions and Expectations on the part of their then fiancé. As has been stated, a divorce should not be a way for husbands (or wives) to back out of their responsibilities, or for women (or men) to dig for gold.
1.1 Summary: marriage
Above, I have set out some new concepts, guidelines and suggested legislative changes relating to secular marriage in the UK. The core principles underlying these suggestions could be summarised as follows:
· Strengthening the cultural meaning and institutional support that is given to marriage
· Affirming marriage as a serious and – in its effects, at least – permanent commitment of two people to each other and to their extended families
· Making marriage fairer: in its availability to persons of any sexual orientation; in the insistence on the rights and needs of children and of the extended family in and beyond marriage; and in the resolution of problems through divorce or alternative arrangements
· Stripping marriage of some of the inherited Christian-derived expectations that it necessarily involves a permanent and exclusive sexual relationship between the spouses; and removing from it much of the associated guilt and blame when things go wrong and spouses stray. The aim of this is to focus on the continuing responsibilities that mature adult individuals have towards their partners, who have previously committed their lives and futures to them.
Part two to follow: new civil partnership arrangements.
