Monday, March 19, 2012

No-fault divorce: an unmitigated disaster

One of the arguments often made by supporters of gay marriage goes something like this: heterosexuals have made it clear for some time now that marriage is not 'till death do us part, that it's not about what's best for children, and that it's really nothing more than a sort of business agreement dressed up in romantic language and celebrated with a huge and expensive party. So why insist that it has to involve just one man and one woman in a lifelong union with reproduction as an important aspect, when clearly even heterosexuals don't act like they believe that anymore?

While I disagree with the argument, I do recognize that in the last century or so, heterosexuals have indeed made such a mockery of the committment of marriage that it's not such a big stretch to see it as a tax-break and benefit contract which one then celebrates with a big party (and then to argue that it should be extended to include same sex pairs, groups of more than two, and perhaps even humans and those animals intelligent enough to express consent to the relationship in some inter-species-love-friendly future). Divorce is so rampant that the tongue-in-cheek term "serial monogamy" has come to be used of those people whose idea of the sanctity of marriage is that so long as they are only married to one person at a time they are protecting that sanctity, instead of spitting on it; children clearly suffer from the effects of divorce; and the notion that a promise to wed is a promise to be together until death is considered a quaintly romantic thought to be expressed just before the happy engaged couple signs the pre-nup which spells out in detail who will get what when the inevitable divorce happens.

Some Christian supporters of the traditional notion of marriage have addressed this question, calling their faith communities to account for failing to consider divorce and remarriage an evil to be avoided, and making various proposals that would be designed to strengthen marriage and to make divorce much more difficult. They, and others who are discussing the problem of modern marriage, have identified one of the most corrosive influences on the state of matrimony: the creation of the no-fault divorce.

The first no-fault divorce law in America went into effect in California in 1970 (signed, alas, by then-Governor Ronald Reagan); women's groups had been pushing for such laws for at least twenty years prior to that time, on the grounds that it was degrading for women to have to go into court and commit perjury by swearing that they'd caught their husbands in adultery or that their husbands were guilty of cruelty to them in order to get divorced. It was assumed by such groups that the effects of no-fault divorce laws would be overwhelmingly positive for women; unfortunately, that did not turn out to be the case--so much so that when New York passed a no-fault divorce law in 2010 (becoming the last state in America to do so) the National Organization for Women joined the Catholic Church in protesting the law! The forty years since the passage of the first no-fault divorce law in America had proved what the Church warned all along, which was that no-fault divorce harms women, children, and the integrity of the family as well as society as a whole.

Why is that? As the innocent parties in these divorce laws can attest, no-fault divorce laws make it possible for one spouse to dissolve the marriage for any reason at all--and the other spouse often has little or no say in the matter, can't stop the proceedings, and, if children are involved, must often avoid becoming "adversarial" in order not to end up on the losing side of any custody arrangements. The advent of no-fault divorce laws changed the dynamic of marriage in imperceptible ways; married couples once knew that they had to put some effort into working out problems or unhappiness, but today an unhappy spouse can, in effect, hold the marriage hostage to his or her whims, and can still insist on ending the marriage even if his or her demands are fully met.

And simple unhappiness may be the cause of more no-fault divorces than people think, as this piece from Mercatornet points out:

Among those who support the traditional concept of marriage there has been plenty of rhetoric in defence of the concept, but little has been done to come up with practical measures to shore up the institution. Now one organisation – the Institute of Marriage and Family Canada – is trying to change that with the report “Finding fault with no-fault divorce”. The report seeks not only to analyse the damage done by easy divorce, but to make concrete proposals to help rescue marriage.

On easy divorce, it says:

The shift from “fault” to “no-fault” divorce ultimately created a dynamic whereby one unhappy spouse who wanted out - for any reason or no reason at all - could unilaterally do so simply by moving out, be it two months or two years in. The end result is that we speak idealistic words (“till death do us part”) on our wedding days, knowing full well that when the going gets tough, we can - and do - get going.

In most countries that have adopted no-fault divorce, marriages have been failing at a disturbing rate. In Canada, for instance, it is estimated that around 40 percent of marriages that took place in the year 2008 will have ended in divorce by 2035. In Australia the rate is around one in three. But there is a glimmer of hope for the newly wed. The IMFC report highlights the fact that in most failing marriages, at least one of the partners will be in favour of trying to salvage the marriage. It also points out that around 85 to 90 per cent of divorces are in the category of “low-conflict divorce” and that among these, two out of three “unhappily married adults” who manage to avoid divorce or separation end up describing themselves as “happily married” five years later.

Given these facts, the report argues that taking steps to save marriages should be considered as “at least as viable an option” as proceeding with divorce. This view is supported by the Institute for American Values, which argues that “unhappy marriages are less common than unhappy spouses”. This is because its own research indicates that three out of four “unhappily married adults” are married to someone who is happy with the marriage. The IMFC concludes: “If divorce is pushed by one unhappy spouse, whose partner is happy - which, in a low conflict marriage means they have just as great a chance of being happily married five years later – then unilateral divorce simply makes it easy for the one unhappy partner to leave without explanation or negotiation.”

The Mercatornet piece goes on to discuss some strategies for cutting down on the number of no-fault divorces; I think, though, that it might not be a bad idea to take a new look at the idea of covenant marriage laws, which permit people to decide up front whether or not to enter a marriage in which divorce will be an easy out. Ultimately, however, I would be in favor of ending no-fault divorce completely, both because of my religious beliefs about what marriage ought to be and because as a woman I can't fail to recognize that no-fault divorce has been an unmitigated disaster for women and children. Temporary unhappiness as a reason to end what was supposed to be a lifelong commitment of love and fidelity makes no sense; and yet for that reason many marriages end, many homes break apart, and many children are irrevocably hurt in a way that will have repercussions for them throughout their lives. It's time to end the insanity of the no-fault divorce laws; if we're serious about wanting to preserve the sanctity of marriage, that's the place where we need to start.


Siarlys Jenkins said...

As with abortion and many other subjects, I don't believe the blunt instrument of the law is well adapted to sorting out the details of who is at fault for what and how bad is it really?

On that basis, the only ways for the law to be written is "No, you are stuck with it, and that includes paying your marital debt no matter how repulsive, selfish, or abusive your spouse is," or, no-fault.

Given that choice, I favor no-fault. It is hard enough for an abused spouse (and the children are generally also abused) to get away WITH no-fault divorce laws. Without them, the abusive spouse could possibly get a court order REQUIRING the abused spouse to come back and bring the kids. I know you don't favor that at all, but we are talking about the law, not the perfect world we would have if I / you / etc. could make perfect decisions for everyone.

What we do need is for churches, feminist organizations, responsible fatherhood organizations, etc. to drive home the cultural message, the law is flexible, but you made a promise, and for your own integrity and happiness, you should make every effort to keep that promise, before deciding to take the course that is LEGALLY available to you, but may not be the morally best thing to do.

Also, the law should give more weight to what is best for the children, before considering what it means that the parents are irreconcilable.

Rebecca in ID said...

Interestingly one of the fall-outs from no-fault divorce is the dividing of custody of the children when there *is* fault. A man can be sleeping around and the court will assign the children to have visits with him, because the court no longer makes value judgments about whether it is moral or immoral to be shacking up with various people.

Siarlys, I'm very surprised at what you say--I don't think the law in this country has ever required spouses either to have sexual relations with one another or to live in the same home. Nor should it. Also, though fault may be difficult to sort out, that is not an excuse just to throw in the towel. People make all kinds of binding agreements, and when those are broken, the courts do in fact try to sort out who is at fault. The binding agreement, or what used to be the binding agreement, called marriage, had very much to do with protecting especially women and children, who are among the most vulnerable in our society, from abuse and abandonment. It is important, at least as important as the business agreements that *do* maintain their binding nature and have consequences when disregarded.

Patrick Penitent said...

It's unclear to me why Catholics allow civil marriages laws to have such an effect on the sacrament of marriage. It's a flawed analogy, but its the best I can do right now:

if a civil law was enacted tomorrow allowing me to reverse the my baptism, or my communion, or my receipt of holy orders - it shouldn't matter - my sacrament is of the church - my catholic marriage is a lifelong commitment to my spouse. NY law can stand on its head and spit nickels but it wont really affect how I treat my wife and my marriage - IF I buy into the meaning of marriage that the church sold me on back in grammar school. I think the State has told Catholics that their marriages are easily dissolved and the church has failed in challenging that. For me, the whole gay marriage debate raises great questions about how much state law should matter and should not matter when I bind myself to another in Christ's church on earth.

L. said...

Just to clarify, NOW wasn't quite on the same side as the Catholic Church, since it approached marriage not as a sacred bond but as a legal contract, and the woman stands to lose if the man is at "fault":

"NOW’s state chapter president, Marcia Pappas, said women are disproportionately losers because New York judges tend to have a gender bias. The problem with the no-fault provision is husbands, typically with more money, could opt for that, driving the court process and leaving their wives with little money or legal recourse, she said."

t e whalen said...

I think the genie is already out of the bottle. I expect that the repeal of no-fault divorce would just drive the marriage rate down, since people are not going to want to get married if they can't get divorced.

Diamantina da Brescia said...


I agree with you that no-fault divorce has been a disaster (as it was for my mother: she could have used a traditional at-fault divorce, since my father cheated on her, drank too much and gambled). Nevertheless, I also agree with T E Whalen: repealing no-fault divorce will mean that fewer people will want to get married in the first place. I suspect that many people do not trust themselves to make permanent commitments to others.

Just take my two younger brothers and me as examples. I refused to marry or have children or even date past my mid-20s, and neither of my brothers have married. My 44-year-old brother cohabited for a couple of years with a very nice woman, but they are no longer together. My 36-year-old brother fathered a child out of wedlock: the child is being raised by his mother away from our lives. (Such a shame: I think I would be a good aunt.)

Neither of my brothers is likely to marry in the near future, if ever: they are intelligent, charming and good-looking, but did not finish college and would not be good providers for a traditional family. And I am happy to be an old maid at 45, though I wonder whether God wanted me to marry and have children, since my health was too poor for religious life. I think my mother has accepted the fact that she will never have grandchildren whom she can dote upon, but since we do not talk about such things I can never be sure.

Siarlys Jenkins said...

Patrick, I think the answer to your question is found in part in Erin's later post about the definition of marriage. An individual who marries themselves, or a warehouse, then divorces, does not affect another person. Baptism, communion, and receipt of holy orders may be a covenant with God, or a promise to your church, but they do not affect another person as party to the contract.

If a civil law "dissolved" your baptism, what would that mean in practical terms. That you could declare yourself unbaptized? You can do that already any day of the week -- whether your church or your God acknowledge your assertion, is beyond the jurisdiction of the civil law.

You've also answered your own question nicely. "...should not matter when I bind myself to another in Christ's church on earth." Well, yes, if YOU know that you have bound yourself to another in Christ's church on earth, then you WILL NOT avail yourself of the option to go to court for a divorce.

In fact, if you choose to breach your commitment to accept holy orders, the church cannot go to court to compel you to live up to your promise. It is unenforceable. Likewise, an individual who married in the church, also got a marriage license from city hall. The latter can be dissolved by divorce. The former is no defense in court -- although God may have any number of ways to remind one that it was a sacred promise.

The court cannot breach a sacrament, but for all legal and practical purposes, it can grant a divorce. A faithful Catholic (or Mennonite) will not seek or accept one.

Rebecca, spousal rape laws only date back to the 1970s. Even after that, lawyers tried for a couple of decades to offer as a defense "But your honor, she's his wife!" Although not often enforced, it was legally possible for a husband to require his wife to "live with him," and the usual amenities usually followed. The phrases "conjugal right" and "convivial obligation" are of long standing, even if to our ears they whisper "male chauvinist pig."

You and I agree in this instance on what "should" be, but we are talking about the law. The law is not only an ass, it is a blunt instrument, difficult to fine-tune with any precision, and always available to technically defensible perversion. That's why lawyers are paid so well.

I think it may be possible to add to "no fault" divorce some sort of cooling off period, or mandatory counseling, and as to child custody, allowing more consideration of fault in terms of fitness -- but I read such things being traded in divorce cases all the time already, usually in a confusing welter of self-serving he said / she said.

c matt said...

I don't believe the blunt instrument of the law is well adapted to sorting out the details of who is at fault for what and how bad is it really?

I would disagree. This is done on a daily basis in our country on matters as diverse as murder, medical malpractice, car accidents, contract breaches and fraud cases. It's called the jury system, and it seems to be able to sort these issues out fairly well. At least, I haven't come acros a better system.

And at least under Texas law, the primary concern, by statute, is the best interest(s) of the child(ren).

Siarlys Jenkins said...

Obviously there are matters we subject to the blunt instrument of the law, and matters we reserve to our private selves. In a murder case, at least there is a corpus delicti. When it comes to marriage, than is often intangible, and comes down to "he said / she said."

The law can enforce a written contract, but it cannot determine whether a marriage is, in truth, irretrievably broken.

Anonymous said...

I would rather be the married gay couple committed to raising my two children than the heterosexual couple getting a divorce and fighting over my children.

While religion claims that marriage is their concept and theirs alone, it really is just legal. However, marriage is also symbolic of a union between two consenting adults. A family consisting of two parents, happily married and regardless of parental gender, is better than a family divorced.

Melody Vasquez

Red Cardigan said...

Interesting wording, Melody. You wrote: "I would rather be the married gay couple committed to raising my two children..." MY two children. In other words, not the two children of the couple, whose father has been cut out of their lives by the very choice to raise children with two same-sex "parenting partners."

No, divorce is not worse than this. This is every bit as bad for children as divorce, with some unique pathologies added for good nature. After all, the divorced mom might make her kids feel guilty when they want to be with their dad instead of with her, but the two gay "moms" will shut down any conversation their children start which begins, "I wish I had a dad like other children..." by telling them what horrible ungrateful monsters they are not to buy into the "two moms are as good as a mom and a dad" myth that so-called "gay parenting" depends on.

Anonymous said...


MY two children have a willing-to-be-known donor for their father and I have explained to them that when they turn 18 they can contact him. They know that Mom and Mum are legally and lovingly their parents and they do no have a problem with this.

I don't care if they want to meet their father in the future. It is their choice. When they do, they will still be mine and my wife's children.

Melody Vasquez

Red Cardigan said...

Sorry, Melody: your children still have a mother and a father. You are (somewhat selfishly, in my opinion) refusing to let your children have a relationship with their father until they are grown-ups, because YOU have decided that children don't need a father when they have two "moms" instead. If, when they are grown ups, they disagree with you and your lifestyle choices so vehemently that they cut you off from their lives, I suppose you will be able to consider that just their choice, right?

Your needs, your wants, your desires, and your lifestyle come ahead of giving "your" children what all children are owed by birthright: a mother and a father whom they know and have a deep and loving relationship with. To me, that's no different from a single woman selfishly deciding to be donor-inseminated out of wedlock because she "needs" the maternal experience. It's an objectification of the child, just as your insistence that your children "don't have a problem" with having two moms is. You won't know if the children you are raising together will have deep, serious, abiding problems such as not being able to have a serious and healthy long-term, marriage relationship with a member of the opposite sex because they have no idea what such a relationship looks like, or the problem of rampant sexual experimentation and promiscuity that affects many kids raised in same-sex homes, or the problem of being unable to relate properly to men, etc. for a long, long time--but the truth is that you don't care, either, because your "choice" to raise children as same-sex parenting partners trumps any possible negative for the children in the situation.

Siarlys Jenkins said...

In the best of all possible worlds, children should have a parent of each gender. In the world we live in, adoption by a stable gay couple seems to me far preferable than bouncing around the foster care system.

When adults deliberately choose to "have" children, at least partly based on what "I want" or to prove a political point or as a status marker, it is a species of cruelty to the children, even if the impact turns out to be relatively moderate.

I can well imagine that Melody's children might be quite a bit better off than quite a number of children of heterosexual married couples... including the pathologically abusive, perhaps some of those who have divorced.

No easy answers.