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If California ban divorce – should the UK follow suit?

With the UK divorce laws under attack from Lady Deech and the chances of your marriage failing having much better odds than you winning the lottery, the initiative by John Marcotte to change the law in California to ‘ban divorce’ may be more dangerous than it sounds.

The Starting Over Show – which was the UK’s first ‘divorce fair’ and which hopes one day to take it’s mixture of legal and financial information to the US, along with it’s inspiration to start over whilst keeping on talking terms with your Ex, not surprisingly vehemently opposes such a proposition – but for reasons that we should all be concerned about.

As the Starting Over Show’s creator, I believe that it is a fundamental human right to feel supported and encouraged when you want to move forward from any life changing event, and that to be condemned to going back to a society where abuse and adultery were tolerated, couples slept in separate rooms and ’till death us do part’ was the only way out, this would be the result of any ‘ban’ or attempts to make divorce more difficult. This would also mean that accidentally backing the car over your spouse would become the best option for those no longer willing to accept a life-time of punishment, because their marriage didn’t pan out as planned.


But how real is the threat of public support for banning divorce?

By October 17th John Marcotte will have heard from the US Secretary of State whether he will be allowed to gather signatures supporting his proposed law to ‘ban divorce’ in California. Marcotte has 4,000 Facebook fans, and close to a thousand dollars in donations. He’s even sold out of T-shirts which read, ” You said, till death do us part, you’re not dead yet.”

Following on from Lady Deech’s accusations that the the old public divorce hearings have been replaced by “an unpleasant inquisitorial procedure designed to establish the husband’s financial position and revials the old law in its depth, length, cost, temptation to lie and humiliation,” and a clear desire to stem the tide of “undeserved millions” being handed out to celebrity wives, is it just possible, that with the more right-wing approach to government likely after the next general election, that such outrageous ideas of banning divorce altogether could take hold in the UK?

The Conservative think tank that produced ‘Every Family Matters’, an in-depth review of family law in Britain, estimated that the direct financial cost of family breakdown in the UK to be in excess of £20 billion pounds per annum. They were also clear about not wanting to currently reform the lack of legal protection for the increasing number of people who cohabit: “we want to encourage a high commitment culture and break the relationship breakdown culture”. This is a significant statement, when you consider that ‘common law marriage’ is a myth and particularly women with children are increasingly finding themselves without any legal rights if their relationship breaks down – unlike their married counterparts. 58% of the YouGov Poll (April 2008 & January 2009) thought that giving cohabitants similar legal rights to marriage would undermine marriage, and 84% agreed that it is important for the law to support marriage.

Surely the simplest way to achieve this is to make divorce more difficult? Is this not what is effectively happening with the stubborn refusal of Government to bring in ‘no fault divorce’ as a standard, irrespective of the (sensible) need for ‘cooling off periods’? Although marriage is undeniably a legal contract that should be respected as such, the very fact that what is essentially an emotional and spiritual matter is not treated as such by the current legal system suggests that for government, marriage is seen as an indicator of a healthy society – or at least one that is behaving as the powers that be wish it to.

More progressive family lawyers, who are increasingly gaining links with mediators or becoming ‘collaborative’ lawyers, approach divorce with more sensitivity to the emotional state of their clients than has traditionally been the case.

The Starting Over Show exhibitors have regular networking meetings so that the lawyers can form trusted relationships with the mediators, divorce coaches and holistic therapists so that they will be better able to refer their clients to specialists who can help make a less combative divorce the primary focus. It’s hard to be nice, or even reasonable, to someone you’re divorcing when you are frightened, confused, don’t have any positive vision for your future and have forgotten that your children deserve you to at least try to be a ‘good Ex’.

I agree with one thing Marcotte says about banning divorce: “What it might do is cause people to really think about it, and really value their marriage while they are in it.” But wouldn’t it be better to encourage people to do that in a more proactive way, rather than punishing them if they get it wrong? The Social Justice Report ‘Every Family Matters’ concludes “that there should be strong government encouragement of couples getting married to take part in high-quality, standardized and accredited pre-marriage information and preparation, delivered in an accessible fashion.” Of course they are right that we should not all go into marriage without a tool-box of skills – such as communication techniques, parenting skills, positive shared visions for the future – but are government the right people to be judging and accrediting how we access those skills? Let’s face it, are we able to find any politicians or government employees to hold up as fine examples, mentors even, of how to have a ‘successful marriage’?

US attorney Kevin Healey says, a “No Divorce” law is unconstitutional and will never happen.
“Anybody can get something before the voters, but I think it will be shot down handily. ” But does Healey have a facebook group of 4,000 fans, many of whom are taking comedy writer John Marcotte’s campaign as a serious suggestion, not as the ‘parody’ that some claim it to be?

Whether it’s pre-marriage support, refusing to provide legal protection for cohabiting couples or making divorce even more difficult and painful than it already is, the political drive to control society in order to reduce that £20 billion pound cost of ‘family breakdown’ needs to be taken seriously.

UPDATE:

California Secretary of State Debra Bowen today authorized the backer of an initiative that would ban divorce to begin collecting signatures to put the proposed constitutional amendment before voters.

John Marcotte now has until March 22, 2010, to collect 694,354 signatures of registered voters in order to get the measure on the ballot next year. The proposal would change the California Constitution to “eliminate the ability of married couples to get divorced in California.”

Couples could still get their marriages annulled under the proposal.

Here is the official text of the initiative:

ELIMINATES THE LAW ALLOWING MARRIED COUPLES TO DIVORCE. INITIATIVE CONSTITUTIONAL AMENDMENT. Changes the California Constitution to eliminate the ability of married couples to get divorced in California. Preserves the ability of married couples to seek an annulment. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Savings to the state of up to hundreds of millions of dollars annually for support of the court system due to the elimination of divorce proceedings.

References:

New York Times: http://latimesblogs.latimes.com/lanow/2009/10/ban-divorce-ballot-effort-gets-ok-to-gather-signatures.html#comments

Times article on Lady Deech’s speech http://business.timesonline.co.uk/tol/business/law/article6832973.ece

Fox40 News

http://www.fox40.com/news/headlines/ktxl-nodivorce,0,5509809.story

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1 Comment

  1. There are so many things that could be said about the notion of ‘banning divorce’!

    My main question at the moment is this – what is/are the underlying intention(s) in our society’s approaches, rules and regulations on human relationship? You point to the emotional and spiritual aspects of marriage and divorce. I think that this is something that we miss in our compartmentalised approach to living. I’m wondering what would happen if we really started considering the whole human being. Marriage is a legal status and is therefore subject to the purview of law and by extension government.( Although the relationship between ‘law’ and ‘government’ is a topic in itself.) Marriage as a legal status provides certain protections and regulations for individuals, property and material resources. Historically, marriage laws were brought about for these purposes – and for the purposes of ensuring lineage continuity in certain strands of society. Historically marriage laws were not created to address the requirements of the feeling, thinking, breathing human being. And for me, there’s the rub.

    I wonder what would happen if law and government were to start taking seriously the needs of the whole human being – material (this includes the property/ money/ resources aspect), emotional, intellectual and spiritual. It seems that there is a second question following hot on the heels of this one: are law and government equipped to address these? Historically religious institutions have supposedly addressed the inner life of man (and I use the gendered pronoun deliberately). But increasingly, people seem to have different needs. I have many friends who have got married in church. Not a single one of them goes to church or engages in ongoing commitment to a religious institution. Church provided a beautiful and sacred setting for the momentous rite of passage that was their wedding. But would they consult a priest for relationship advice? Probably not.

    So the question is, what are our relationship needs and how can they best be addressed? How can the legal vehicle of marriage/ divorce best relate to the inner life of human beings – our emotional, intellectual and spiritual needs?

    I expect that starting to answer those questions would shake things up in a more interesting and constructive way than the suggestion of banning divorce. Who wants to start?

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