• Swastik Routray

The Fault in Our Divorces

Divorce has been debated Ad nauseam. To its virtue, unconformably so.

In fitting the shape of the vessel, divorce has garnered an assortment of furore. It has been antagonized, romanticized, politicized, and penalized across cultures and legislations. Sample the Hollywood classic Kramer vs. Kramer which punishes both its leads who have mistaken parenting for a zero-sum game. Intellectuals and social scientists have been hard done by in their attempt to pick patterns beyond platitudes. While considerable success has been achieved in simplifying separation ethics for policy planners, taming lions of morality is no mean feat.

Fault or No-Fault, divorces are intrinsically stinging. Mutual or Contested (barring extreme cases of abuse and ill-treatment), separation is a crushing defeat of one’s value judgment. It is therefore without question that a nation’s central legislation overwhelmingly presses for divorce to be the last resort. Yet, in hindsight, this discussion seems incomplete. A sensitive mind would ponder the extent to which improved divorce laws stonewall against bad marriages. Not to any palpable extent and more importantly, not least in comparison to solid marital investment in terms of emotion, attention, time, and money. Ron Howard’s eternal classic, A Beautiful Mind, beautifully examined a staggering marital bond between Jon Nash and his wife Alicia where divorce stood defeated by marital commitment. Their will to separate (and eventually get back) was never clause-led. Besides, rolling off the back of universal unanimity is the fact that divorce decisions, fraud, and abetment notwithstanding, are seldom governed by law. The case is clear. It’s not singularly a debate concerning the nastiness of separation procedures, as may be implied by various researchers.

Divorces, by any measure of prudence, can never follow a universal separation code. More so since they are functions of socio-cultural belief, wealth sentiments, and the prevailing idea of social acceptance in a given country. Behold the United Kingdom for instance which makes a great case for legislative experimentation pertaining to separation. The UK was one of the first countries to put an end to marriages, mutually decided to be “irretrievably broken”. Prior to the Labour government’s Divorce Reform Act of 1969, a couple had to sit through tens of confrontational meetings, disputing over custody and finances. The meetings were founded in unrequited resent; crying foul over adultery, insanity, and desertion to euthanize a marriage was the only way to end it. No law in any country had yet provided for incompatibility. Come 1969, things changed. The terms of separation were made mellow by dropping these actions as compulsory determinants of a capsized relationship. It was a welcome change, one that came across as a truly well-intentioned move to do away with accusatory bitterness, until it wasn’t. Of England and Wales, nearly 44% of marriages throughout the 80s fell to divorces, estimates Office of National Statistics (UK). In an attempt to suit the familial requirements of the young, eagerly clinging to new economic morals, Harold Wilson had unwittingly opened doors to a ‘Divorce Revolution’.

Even after that, the sun ceased to set on British Empire’s marital woes, arching from history to contemporary politics. Shook by a decade that threatened to hurt the moral fabric of British society, Conservatives dissolved any further additions to the no-fault debate by dismissing The Law Commission’s findings in 1990. 20 years forth, after heavy campaigning, the same party assented the Divorce Dissolution and Separation Bill by a thumping 231-16 in the lower house.

The argument finds its power when similar legislation in India is contrasted in line with the UK’s consequence. The Marriage Laws Bill, amended in 2013, sought to exterminate fault-based marriages in India. The legislation was designed very proficiently; after either spouse contests, a 3-year separation window is allotted to debate arrangements at the end of which, a clear verdict settles. All knots tied under the provisions of the Hindu Marriage Act (1955) and Special Marriage act (1954) would have been contestable for separation citing damage to both sides. The bill also held an overwhelming premise in acknowledging the wife’s contribution towards building a family by granting her equal share of jointly created assets.

Sadly, yet not surprisingly, it lost power in the lower house of the parliament and was eventually canned in 2016. The then Law Minister, Sadananda Gowda, had come under pressure from socio-familial organizations like Save Indian Family and Centre for Reforms that reckoned this bill to be an “Inter-Continental Ballistic Missile”. A missile that has piqued the airs of Men’s Rights groups. Their concerns, although overblown, arise from some glaring lacunas in a clause. For instance, a split might result in the wife acquiring husband’s immovable ancestral property as compensation while the converse is unaccounted for. Countries following a no-fault system have similar-looking legislations in this regard wherein both spouses are in a position to owe compensation and ancestral gains are untouched on either side.

The billion-dollar question would be: Does a low marriage termination rate (around 1%) imply better familial strength? Separated entities in India do not file for divorce to avoid the hassle. Does this not spell further trouble for those pursuing newer relationships? All in all, a perfectly healthy no-fault law was lost on parliamentarians’ notions of justice delivery. Lawmakers failed to read in between the lines of prevailing norms of gender roles by covering for and conforming to them. They failed to see how this bill would have raised stakes for marriage and commitment instead of making divorce easier. India’s jurisprudence is put into question and significant doubts are raised regarding the legislature’s understanding of the same. Nevertheless, this tragedy provides much clarity. Economies growing at different rates have different societal and familial requirements. The argument is driven home by the consideration that it is in the best interest of citizens that divorce legislations go unassumed, unenforced, and sensibly influenced by international advancements. Until the time, most countries reach a relative economic uniform (which is as far as the eye can see), all social institutions are in dire need of commitment and real-time involvement.

Efficient and accessible family justice systems are a pre-requisite for any developing nation. Canada wins this a mile ahead of its contemporaries. With its new Bill C-78, it provides decentralized dispute resolution services and has made phenomenal breakthroughs in making separation less expensive. It has done away with a one-size-fits-all form of governance by including ethnolinguistic considerations in deciding custody. So why don’t more countries take the same route as that of Canada? It’s obviously not a simple end game. The national agenda is set with polls in mind. Foreign lobby and special interest groups often overstep bullyingly. Centrally constituted legislative commissions cannot be assumed to be bereft of bias. As for federal administration, political differences between the center and states are factored in as a constant. Amidst all of this, a robust family law not only safeguards the haves and the have-nots equally but also delivers appropriate socio-economic impetus for healthier families. Having said that, stronger marriages should always be more of an individual priority and less of a legal one.