The battered husbands
Christine Verity
The sad subject of divorce has always had its funny, or at least ludicrous side. In happier times, the mirth usually centred round those furtive interventions by private detectives Which inspired Evelyn Waugh in A Handful of:Dust to the hilarious episode which ends With the wife's statement: 'from then onwards I had him watched by private agents, and as a result of what they told me I left my husband's house on 5 April.' Thanks to our recent 'divorce revolution', this increasingly familiar feature of everyday life has by no means become any less sad. On the other hand, there is plenty of evidence to suggest that it has become a good deal more ludicrous, without even the saving chance that it might inspire a comic novelist to a little harmless humour. , The greatest heartaches and headaches of the old divorce law were thought to have stemmed from the need to apportion .blarne, to fix on a 'guilty party'. In 1966, in its fervour to bring Britain's laws up-to-date and more in line with a liberal, humane society, the Law Commission expressed the need for a 'good divorce law', which would provide a 'decent burial' for dead marriages one which would take the heat out of the wrangling, and above all would not embitter future relations between the parents and their children. The Commission's recommendations resulted in the passing of the lvlatnnionial Causes Act 1973, which consolidated the leading statutes on divorce and property. Like many examples of re i cent legislative hyperactivity, its results n Practice have not been impressive. The main plank of the new law is that the Only ground for a divorce will be 'the irretrievable breakdown' of a marriage. Section 1 (d) adds the novel 'consent' factor, which allows a couple to divorce after two years' separation, without reference to either party's conduct. Even so, the so-called Matrimonial offences' are retained, as Proof of breakdown, namely adultery, desertion and unreasonable behaviour. Since the Passing of the Act, the number of divorces has risen dramatically, but only 25 Per cent in 1974 were granted on a straight consent' basis. 'Blame', 'conduct', call it What you will, may be nugatory to the law ef?rnler; not so to the average aggrieved Petitioner, 70 per cent of whom are women. , 13u i But even if blame can be dispensed with in divorce, it may still be relevant when t Ines to deciding on apportionment of Property and the making of future financial 1).!°vIsions. Judicial powers are to be exerei„,sed, under section 25 of the Matrimonial i!ses Act, 'having regard to their [the par:Les ] conduct'. In other words, the very 'nog the Law Commissioners of 1966 most wanted buried has been smuggled straight back in through the back door. And more and more evidence is coming in — much of it in correspondence to MPs — that, despite the obvious financial headaches after a divorce for women, the real victims of the 1973 .Act are men. So strong has this 'male backlash' become that a group was formed earlier this year, under the unlikely patronage of newsreader Reginald Bosanquet (ordered to pay 13,600 maintenance arrears), to campaign for a change in the law relating to financial provisions on divorce. The Campaign for Justice in Divorce claims that, in practice, the notion of a 'decent burial' for dead marriages has turned out in many instances to be the cruellest joke of all. . What happens when a couple get divorced ? The husband will usually leave what lawyers call the 'matrimonial' home' with all its creature comforts. Rarely will he be able to get custody — let alone care and control — of his children, although he will be awarded something called 'reasonable access' on divorce. Thus he will move to a small rented apartment (despite A Handful o f Dust, divorces occur in the 'lower income brackets') and wait for the lawyers to sort out the finances if this has not been done already. There is plenty of incentive for delay, with legal aid freely available. Meanwhile relations with his children are deteriorating fast. Access Saturday at the zoo is uncomfortable: the mother has probably made her feelings all too apparent. Sometimes, in what can prove to be the very distant future, the tax returns, school bills and affidavits will be placed before a county court registrar. Like many other areas of matrimonial law statistics here are hard to come by (these cases go unreported). But a study of registrars conducted in 1974 showed that over a third still found themselves considering the question of conduct, when they should (on judicial dicta) only do so when it is 'gross and obvious'. 'One must not be too far m advance of society', one registrar declared. The end result will usually be that the wife and children remain in the family home and the husband will be ordered to maintain them. Until recently, the husband's loss of his main asset — the house — was not altogether complete. The courts could use the device of the trust for sale which allows the wife and children to remain in the home until the latter are grown up when it must be sold and the proceeds divided. But this year in the case of Hanlon v. Hanlon the Court of Appeal transferred ownership of the house completely to the wife. Her husband, they said, had a 'roof over his head' (a police flat to which, as Crown property, there attaches no security of tenure) whereas she would always need somewhere to live. This seems rather hard on him when he comes to retire. However, 200 years ago Blackstone observed that the female sex is `so great a favourite. . to the laws of England'.
If 'he' remarries his new wife's income will go into the communal pot for any future reassessments of payments to the ex-spouse and children. If 'he' wins the pools or completes a good business deal the ex-wife can claim from the proceeds (even if she is now living with another man). If he defaults on any of his payments he can be sent to prison. In 1973 3 per cent of the prison population were maintenance defaulters and it was costing the taxpayer about £3 million to keep them there. Between a half and two thirds of all maintenance payments are in arrears (lawyers agree that awards against husbands are often absurdly high). Many men simply cannot afford to pay, others embittered by the whole system just will not. Meredith's poetic evocation of a broken marriage now bears a more literal truth: 'Then each applied to each that fatal knife/Deep questioning which probes to endless dole'.
• It is ironic that the provisions of the divorce laws fly directly in the face of recent legislation which was aimed at providing women with full legal status. Equal pay and equal opportunities are enshrined in statute and underpinned by free education and birth control. Yet a divorced woman is more or less encouraged not to work. 'She seeketh wool and flax and worketh willingly with her hands', says the Book of Proverbs. Not necessarily so. An ex-wife can expect to be kept until she remarries or dies, even though her husband may have a new family to support, and she is childless herself. If she is awarded a lump sum of money after the divorce, she has no obligation to repay it, even if she remarries. If 'he' dies, and fails to make provision for her, she can contest the will or claim from the estate.
What then is the answer to such a freakish by-product of our supposed age of 'female emancipation', in which women appear to be eating and having their cake in such unprecedented fashion (even though we may all know individual cases where women are still in practice suffering considerable hardship)? The political parties sit on the fence. Labour agrees basically with Engels — man exploits woman as the capitalist exploits the proletariat, ergo growth of 'feminist' legislation. The Tories are naturally fearful of any reform which might increase public expenditure.
Nevertheless it is hard not to recognise that state support for maintenance payments, at least to families on low incomes, would at least help to correct some of the financial anomalies which have arisen. Most awards are supplemented already, and the administrative costs of chasing up defaulters are enormous and unproductive. All too many 'flee from those they once did seek'. Let the better-off care for their child ren. All maintenance payments to wives except in cases of real hardship should cease.
If this seems hard on wives who, for the best of reasons, wish to stay at home to care for their children, then perhaps another suggestion should be to cut through the appalling hypocrisies which have arisen under the present law, by returning to the old, wholly blame-oriented system adjudicating what is fair on that basis. Although modern legal thinking (when it suits the political temper of the times) claims to be against confusing law with morality, that has not stopped the parties themselves from continuing to apportion blame and as we see, the courts in practice still follow suit. Is it not time we stopped pretending that, in our enlightened age, this is not still so?
Perhaps the greatest unknown of all is the effect all this is having on the hundreds of thousands of children of marriages which now end in divorce every year. How will they develop? As strange androgynous creatures, uncertain of the role of the sexes? As man-haters, to whom a man is simply 'daddy who would not pay for us'? Will girls in the future grow up to regard looking after a man as simply 'work to be remunerated', a kind of living-in 'temp job'? An even more fearful consequence of the devaluation of the male role, in this age of the 'battered husband', may well be a revival of male machismo in the form of 'butch authoritarianism' and uniform-wearing. We are not far away from it in some of the disportings of the National Front. In the past such worship of pastiche-maleness, as a consequence of the shattering of genuine masculine pride, has led to unimaginable horrors. It could happen again.
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