Bungling our divorce laws will be disastrous

Nov 23, 2008 AFC Column, Features / Columnists

---

…especially for our women and children

By Khemraj Ramjattan
AFC Chairman

I rather like the quest of Ms. Manickchand, our bustling Minister of Human Services, to force a debate on the state of our divorce laws in Guyana.

It has been suggested that highlighting this onto the political agenda at this time is to attenuate the spike in anti-PPP sentiment which emerged as a result of the bungling by the President on the EPA issue, and the even greater bungling by His favourite, Mr. R. Persaud, on the torture issue. These were among some of the minor and major fiascos this PPP/Government got roughed up on recently.

This throwing of a cat among the pigeons may not have created the diversion that the Government intended.
In any event, the fact that it is on the political agenda means that it must be addressed.

I have noticed that a number of analysts, columnists and interested persons are sharing their views one way or the other. I am happy that they are. I will be even happier still if the state of our Freedom of Information laws can be nationally debated!

On most issues I have a rather liberal approach. Not so, however, on issues relating to family, marriage and divorce. I am very much conservative here, and will willingly accept the consequences which will follow.

The family has been and will forever be that substantial cornerstone of human interaction and of civilized community which is a major source of social cohesion.

And one of its foundational pre-requisites is marriage. By this I mean marriage of the formal legal type. Indeed, I will not be blind to the fact that there can be a family without a marriage of this formal legal type. We have many in our country.

But when there is a strengthening of the institution of marriage, there are stronger families and a healthier happier community. In my book, this is a truth that I need not prove empirically.

Since man and woman who comprise the marriage union are not angels, it is inevitable that a number of marriages may become dysfunctional. Dissolving such a failed marriage is thus necessary. Our legal system in its wisdom made provisions for this, and we call them our divorce laws.

Our divorce laws, as Ms. Manickchand rightly points out, are based on the “Fault” principle. To obtain a divorce in this country one party has to prove to the satisfaction of the High Court one or a combination of these: cruelty, adultery, or malicious desertion. These categories each have their special meanings with malicious desertion being extremely wide in application.

This Fault principle has worked very well for us, notwithstanding its imperfections. Which legal regime covering the matrimonial relationship (and especially divorce) will ever be perfect?

Additionally, I know of no recent popular sentiment within any circles – much less influential circles – in our society which have called for a paradigm shift as is proposed by Ms. Manickchand.

But even if I have missed such a national sentiment, I wish to voice this opinion – No-fault divorces will have an extremely adverse impact on marriages and especially women and children in our society!

When there is a quick-fix by having an easy exit, the party opting out will not want to give it that extra effort to make the marriage work and last. The easy exit will cause him/her to walk in that direction.

I want to emphasise, further, a point which I think is being made de minimis by the proponents. No-fault divorce as proposed in the consultation paper is something of a misnomer. It does not transfer to the couple the right to determine when a divorce is justified.

This no-fault principle transfers that right to one of the spouses in the union, that one who wants to go! A more accurate term then to describe what is being proposed would be –“unilateral divorce on demand”.

This unilateralism dilutes the institution of marriage and is a retrograde step. It cheapens and lays to waste the sanctity and sacredness of marriage.

This is unlike fault-divorce which in my view upholds and lends more respect and responsibility to the institution of marriage, and consequently discourages the idea of and propensity to divorce.

Moreover, a no-fault divorce will empower the spouse who wishes to leave the marriage (generally the male here in Guyana); and, will make powerless the spouse who is being left (generally the female here in Guyana). The latter will be crushed, made helpless and become overwhelmned.

There is an erroneous pre-supposition of equality between husbands and wives, by Ms. Manickchand and those in support of her, which has no basis in the Guyanese reality.

So I want to warn that no-fault divorce will have our women and their dependents in a disastrously disadvantaged position.

Experience has taught me, even in our existing regime of Fault divorce, that men’s standards of living rise after a divorce, whereas the women’s plummet.

This is simply because women find it difficult in the job market which they have been out of for years, or never used to be in because of ‘minding the children’ or ‘keeping the house’.

Divorcing husbands end up almost always in an improved financial situation, while the divorced wives are poorer for the divorce.

President of the Bar Association, Mr. Teni Housty, has circulated a Research Brief which speaks to the question of how the divorce rates increase in all countries which have implemented the “No-fault divorce”. It is quite an eye-opener. In Great Britain it went up by 43%!

Finally, I want to leave with this point. Children are the greatest sufferers in a divorce, whether it is a Fault or No-fault divorce! Why then go to No-fault when more children will suffer?

---

---