“As he was passing by a fishmonger who was skinning an eel alive, he heard him ‘curse it because it would not lie still’”1
“Do not go gentle into that good night.
Rage, rage against the dying of the light”2
The Tini & Hugh Owens case caused considerable consternation amongst family law practitioners, a divorce petition was refused. In their view this was not supposed to happen; traditional marriage had been slain by the cultural revolution and in practice divorces should be available on demand. The lawyers and other reformists are similar to the aforementioned fishmonger and the eel is the tiny vestige of resistance, being provided by Mr Owens’ successful defence against his wife’s divorce petition. Mr Owens had the temerity to seek to hold his wife to the marriage contract and to ‘lock her in’ to a ‘traditional marriage’. Mrs Owens was actually the party who repudiated the marriage contract by committing adultery but Mr Owens forgave her and expressed a desire for them to continue to live together in their old age.
One of the ‘arguments’ for removing the need to prove unreasonable conduct in the absence of the prescribed period of separation, is that divorce law must reflect modern social norms. Indeed Mrs Owens’ Queens Counsel, Mr Marshall, even argued that the Court of Appeal should not be bound by its own precedents (a heretical submission) because of ‘current thinking’ and ‘modern social norms’ see here.
The observation that something is not ‘modern’ normally amounts to an appeal for that thing to be abolished without the need for analysis or argument. Mr Marshall went on to put forward the predictable and all encompassing human rights argument; being held to the marriage contract would breach his client’s ‘human rights’.
Another ‘argument’ put forward by family law practitioners for divorce law reform is that their clients are ‘forced’ to allege unreasonable conduct; as if going against their desires or simply admitting that they do not have legal grounds for something that they want, is impossible. This is a very short article and I am not seeking to refute the claims for further reform in detail. I therefore encourage readers to examine the case in detail but I think you will find that all of the arguments are self-justifying and are formulated within the individualistic-hedonistic paradigm. It is not clear exactly what family practitioners are asking for and this will of course vary according to the practitioner. The time limits have been described as arbitrary (2 years with consent and 5 years without) but how long should they be? I get the impression that for many, the fact that one party wants a divorce should be enough, which would render marriage meaningless.
It may be too late to save the institution of marriage, the Owens case is something of an aberration and Mr & Mrs average can not afford to run up six figure sum costs bills in order to contest a divorce.
However one can at least have the audacity of the eel in James Boswell’s biography of Dr Johnson, or the poetic dignity of Dylan Thomas’ father and incur the ire of progressives by fiercely challenging their shallow arguments as they seek deliver the coup de grace against marriage; something which the arguments of those in the vanguard for the abolition of marriage were regrettably spared from.
1J Boswell ‘The Life of Samuel Johnson’ 1791 Vol III p337
2D Thomas ‘Do not go gently into that good night’ 1947