Re-building the institution of marriage requires changing the no-fault divorce laws, argue Thomas Farr and Hilary Towers. Another product of the 1960s, these laws have had unintended social consequences, to the point that “the only contract that is utterly unenforceable in law is marriage.”
From Thomas F. Farr and Hilary Towers, Time to Challenge No-Fault Divorce | Thomas F. Farr and Hilary Towers | First Things:
State laws on divorce began to be implemented in the late 1960s, but today have been absorbed into the legal and cultural mainstream nationwide. The logic of no-fault divorce is that spouses should not be trapped in marriages that make them unhappy, or forced into the expense and psychological trauma of proving “fault” in divorce court. If one spouse wants out, the judge’s mandate is to manage the breakup of the family and to protect the interests of the children.
Like the increase in abortions after Roe v. Wade, divorce rates increased significantly with the onset of the policy. As with Roe, there were other contributing factors, especially the sexual revolution, which multiplied the “liberating” effects of the new legal regime. The clear losers in both were children—aborted in ever increasing numbers after Roe, and wounded socially, economically, and spiritually in the wake of no-fault divorce.
The other casualties, far less studied, have been abandoned spouses, the institution of marriage, and American society itself. A dearth of transparency and accountability within family courts, and a consequent lack of data, have discouraged the study of causal connections between no-fault divorce and its effects on women, rates of cohabitation, and rates of out of wedlock births.
For example, the laws were intended to achieve consensual divorce for those in “unhappy” marriages who agreed that they wanted to move on. But some 80 percent of divorce filings are initiated by one spouse, not both, and the majority of divorces today occur in marriages not characterized by serious conflict. The most common reasons cited for divorce are problems that affect most marriages, such as “growing apart” and “not being able to talk together.” And, as anyone who has observed a unilateral divorce proceeding knows, the process is anything but consensual. Abandoned spouses are simply left in the lurch. If one spouse decides to move on, there is very little the other can do to stop it. In America, the only contract that is utterly unenforceable in law is marriage.
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