divorce ethics I: whether, when and how

As I always say, divorce is neither good nor bad. It's like chemotherapy. You wouldn't do it for fun, but sometimes it is necessary. Our ability to recognise that things are so far gone that only divorce will save the patients is in a pretty dire state these days, but this incredibly important issue falls right down by the wayside, because we've been having the wrong debate since about the beginning of Christianity, namely, "Divorce- yes or no?" This is the "whether" debate. But generalisations like that cannot be ruthlessly applied to the infinitely variable relationships that can exist between two people. Like most kinds of agreement, marriages can be perverted and abused by one party at the expense of the other, and anyone with an ounce of humanity should at a bare minimum allow the victims in such cases to get out. A blanket yes/no argument does not deal with the reality of human life.

Jewish law is very clear about this reality; there are certain circumstances under which divorce, like abortion, is actually mandated. This removes responsibility from the victim for their own victimhood, in a way that is impossible under Western law. Here, you have to take it upon yourself to divorce someone, and it can be a very difficult battle. Jewish law also sets out in some detail what kinds of settlements should be made after divorce, which removes a great deal of the potential for vicious conflict during and after the divorce. However, I'm not going to discuss Jewish abortion or divorce laws here, because I am not knowledgeable enough and do not wish to open up discussion on either subject. What I want to point out is that the yes/no debate is meaningless, and distracts us from the real issues which are when and how, and that other systems than the modern West do actually acknowledge and try to get to grips with those issues. Whereas we have few good standards and very limited knowledge on those things, because we are too busy wondering yes/no and crossing our fingers in the hope that it won't happen to us (or sitting in our marital towers looking down on those lesser mortals who didn't get such a good spouse). And this is a serious problem which needs remedying.

When and how. Is there any way we can develop a realistic and humane understanding of when divorce should occur, for ourselves and our children, and to help us better support those around us in the midst of bad marriages and bad marital breakdowns? Can reasonable general rules about what should happen after divorce ever be established, and how would they be applied and cultivated?

The system of the West is currently based on adversarial debate. People are motivated to improve their ideas in order to win battles. For example, fathers who were not winning custody (now called residency in the UK) developed the idea of shared custody, which had more chance of success. At the same time there have been moves by the authorities to encourage mediation before legal contests, an improvement no doubt designed to limit the time-wasting pointless mud-slinging and emoting that has dominated family courts for years. Adversarial court proceedings are all those things, and also extremely destructive to the individuals concerned and any future working relationship they may need to have for the sake of their children. They are a brutal kind of chemotherapy when a more humane one would work better, the people administering it are exploiting us for thousands of dollars worth of medicine (and we seem often to want that- which doesn't mean the doctors should be allowed to give it to us!) and we should certainly not be relying on this whole thing as the system which will lead to improvements for the future! We can do better.

But we will continue to do sub-optimally as long as we stay stuck in the yes/no divorce debate. Yeses are in no position to help, and nos actually like the difficulties and regard them as necessary deterrents. Divorce is never actually going to be easy, because it is not just a matter of filling in some forms and walking away with everything you regard as rightly yours. "Just walking away" from the bed you made and surely ought to lie in forever, then, often means leaving behind many things that you care about and value. Actually, nobody is entitled to stay in bed forever: we do things, sometimes we fail, we clear up the damage as best we can, take note of the lessons, do our best to help others involved in the disaster, and go and start in a new place with a hammer and a few planks of wood. That's more what life is about than clinging forever to Titanic wrecks. But the difficulties of divorce are not about whether you can file right now or not. They are all about what happens after that. The ease of divorce we tend to discuss is the ease of being legally allowed to do it: but diagnosis is only the start of the unpleasant treatment that actually constitutes divorce.

Giving chemotherapy on demand to drug-addicts would be as unethical as punishing cancer patients for having treatment. Both causes unwittingly fail to notice the real obligations on which their judgements should be based. The first, in denial about the need for informed expert diagnosis, in practice enables healthy people to kill themselves. The second, in denial about the existence and dangers of cancer, used to kill sick people when it had the upper hand, and now attacks people in their hospital beds for trying to recover. Both are stuck on whether. Neither has got to when, never mind how.

I will come to those in my next post.