The Right to Unmarry?
'The Right to Unmarry?'- this week saw a most unusual marriage proposal, delivered in an abstract for an academic paper. Even by the standards of the family law world (there’s no such thing as a taboo subject for us) it's novel. The abstract- a summary of a forthcoming article- was brought to the attention of the legal world by @scott_wortley whose twitter feed is usually aimed at a loyal following of pedantic law nerds rather than functioning as a broadcaster of high risk marriage proposals (I’ve got your attention now, haven’t I?). As he said, 'quite an abstract. When they ask for papers to have impact I am not sure my face when I read this was the sort of impact they had in mind'. You’ll find the proposal here. *
The authors’ premise is that people should be able to end a marriage and start a new one whenever they want. Their argument runs that if a society protects the right to marry based on autonomy and dignity, then it must also protect the right to unmarry on the same grounds. If it offends autonomy and dignity to prohibit a marriage, it offends autonomy and dignity to preserve a marriage, against the will of the married.
I’ll save my thoughts on the economically protective function of divorce in a social justice context for another blog (edge of the seat stuff, I know). But Frye and Romero’s paper on the preservation of marriage against the will of the married is highly topical for the people who would like to be divorced but are stuck. Most readers will be aware of the case of Owens v Owens in England. If not, there’s a good summary here.
Long story short, Mrs Owens, who lives in England, has to wait five years from separation until she can apply to be divorced because she couldn’t prove behaviour by Mr Owens that was sufficiently unreasonable for the court to release her from the marriage. Law reform is ongoing in England (and indeed continued through the House of Lords through the early stages of Covid-19 related social distancing). If passed, then English law would provide for irretrievable breakdown as the sole ground of divorce with a minimum waiting period of six months. Joint applications would be possible as well as sole applications and there would no longer be any ability to contest the divorce except for fraud, lack of jurisdiction or procedural problems.
Will Scotland follow suit? Well, the position for someone in Mrs Owens’ position is less acute in Scotland: if she lived here it would be a two year wait. But where England follows, Scotland often waits, sees and then decides whether to follow (canny, that). Meantime, there’s an excellent academic conversation started on the desirability and viability of similar but different divorce law reform possibilities in Scotland in Edinburgh Law Review, Vol 23, “Divorce Law in Scotland: Not Entirely Without Fault” by Dr Gillian Black.
Meantime, I think we’d all like to know what happens next between Brian and Maybell….
* The abstract has a link to the full paper, the citation for which is Frye, Brian L. and Romero, Maybell, The Right to Unmarry: A Proposal (April 2, 2020).