Fr Gouder on divorce

This column is devoted to arguing that Fr Anton Gouder's account of divorce (The Times, October 25) is marred by factual mistakes, misrepresentation of people's behaviour, an over-legalistic attitude, and a mistaken evaluation of the role of the state. He makes claims that no senior sociologist, anthropologist or historian of the family has made. In short, his understanding of how society works is too simple. But let me begin by saying that Fr Gouder and I share at least one basic attitude.

From Fr Gouder's various writings on divorce, it is clear that he is angered by those who want to legalise divorce in the name of tolerance. For him, this is a tolerance on the backs of others, the victims of broken marriages - especially children. Since the legalisation of divorce is sociologically linked to a higher rate of marriage breakdown than there otherwise would have been, Fr Gouder sees calls for divorce in the name of tolerance to be tolerance on the cheap.

I too reject cheap tolerance. That is why I argue that the legalisation of divorce in Malta should turn on looking at Maltese behaviour and its consequences: is legalising divorce more or less socially harmful?

For me it is an open question. However, for Fr Gouder it is open-and-shut. He is familiar with the statistics (which I accept) that link divorce, in today's Western societies, with certain distressing family conditions that exist to a lesser degree in families where the couple has stayed together. But he moves from this correlation to make claims that are untrue.

He says: "In countries where divorce has become the norm, the number of marriages has gone down and the number of cohabiting couples has gone up." Wrong.

Divorce has been permitted, in some form, in most societies in history; in some of them, the divorce rate has been high. The situation Fr Gouder describes does not fit the bulk of these societies. It does fit contemporary Western societies - although there are striking differences between them, too.

Fr Gouder implies that divorce is a main cause of this situation. But many factors explain the fall in number of marriages and rise in cohabitation. In earlier times, marriage marked a significant change of status: the setting up of one's own house; the beginning of legitimate sexual activity; the transference of family property (especially when the dowry was materially significant). These markers have been eroded by developments that were not caused by the legalisation of divorce. As a result, marriage has become less socially significant.

And although the number of marriages has fallen in Western societies, the institution is far from bankrupt. A significant number of marriages are re-marriages. Many cohabiting couples end up marrying, sometimes after having one or two children; the statistics (together with some testimony) suggest that marriage is considered a form of upgrading of commitment.

Fr Gouder challenges this: if so, he writes, "how can they manage to put their marriage in the trash?"

I am very surprised by this narrow view of why marriages break down. Of course some marriages break down because there was no great regard for marriage in the first place. But marriages break down for several kinds of reasons. It is perfectly possible for couples to regard the institution of marriage highly, while behaving in ways that lead to the eventual collapse of their marriage. It happens all the time. It's why normal people are depressed when they face the fact that their marriage has collapsed.

Surely this is obvious to us who have seen couples grow apart because of work pressures and the accumulation of small grievances - until the dam burst. But if we didn't know it already, sociological research - in the UK and Australia - also shows that filing for divorce is not taken lightly.

None of this is to say that a divorce law makes no difference. The number of divorces is probably slightly higher than it otherwise would be. The kind of divorce law in place also matters. But when European rates of divorce vary between (roughly) 30 to 50 per cent, it is clear that it is not just the law that matters. European marriages today are more fragile because the right balance between work and family is difficult to find, because men and especially women expect more from marriage, and because it is easier to divide up the family's material assets.

In this situation the role of the state is to regulate behaviour as best it can, in the interests of justice, equality, and liberty. It is not the role of the state to implement God's law (let us agree it prohibits divorce) - even on believers. The state is too clumsy for the pastoral care that God's law requires, and it has no spiritual authority.

Fr Gouder states this is absurd. Should the state therefore not prohibit theft and murder? But the argument does not hold. The role of the state is to prohibit what is clearly disruptive, and look closer at more complex matters before deciding what to do.

Consider this: God's law also prohibits adultery. Yet it's a bad idea to make it illegal - the consequences of enforcing the law would be a police state, surely more socially disruptive than widespread adultery.

My argument is that with divorce, it is not so clear what is more disruptive for Malta: legalisation or prohibition. To determine this, one needs to take a closer look at Maltese society. Looking at the European cases helps too - because they help us take a more nuanced view of divorce than Fr Gouder offers.