I recently read The Economics of Marriage and Divorce on FEE.org, which raised some interesting points. The article starts out in an informative manner, and is rightly critical of state meddling, regulation, and intervention in the private matters of marriage and divorce. However, the article goes on to say,
Another turning point was no-fault divorce, which was first introduced in California in 1969 and has spread to almost every state. In no-fault divorce, a spouse does not need to prove wrongdoing but can merely claim incompatibility. It is sometimes called unilateral divorce because one party can request it; the other cannot refuse. Moreover, marital conduct cannot be used as a factor in determining the division of property. The arrangement is set by law, not by the parties involved.
The writer cites to skyrocketing divorce rates as a result of No-Fault Divorce policies, and goes as far to quote a Men’s Rights Activist who laments, “You can be forcibly separated from your children, your home, and your property, also through literally ‘no fault’ of your own. Failure to cooperate with the divorce opens the innocent spouse to criminal penalties. No-fault divorce made divorce far more destructive by allowing the state to undertake court proceedings against innocent people, confiscate everything they have, and incarcerate them without trial.”
I don’t think “No-Fault Divorce” should have required a law to begin with, as no one should be forced by the long dick of the law to stay in an unhappy or even abusive relationship, but the reality is the law wants to have an opinion on just about everything, and this particular regulation (really, it seems to be the negation of a prior regulation – Fault Divorce law) happens to be one that is in accordance with the principles of liberty. Consider the alternative. If one spouse wants to leave, should the other truly have the right to refuse and to enforce that refusal? One may not want to lose their spouse and face terrible financial consequences, which are exacerbated by government laws, but the answer should not be to force people with government laws to continue to be legally bound together against their will.
I will never forget when my high school English teacher from sophomore year casually related a story of her marriage to her first husband, who was regularly physically abusive. She literally had to show up at court with bruises on her body, with a witness in tow (a friend), and both of them had to testify to the horrors of her husband’s beatings for her to be able to legally obtain a divorce. There are numerous abhorrent aspects of family law, but No-Fault Divorce’s abandonment of antiquated ideas of people as slaves or property is not one of them. Do we really want to return to the days of Fault Divorce? Is this author really a feminist?
Strangely, this article describes in great detail how financially destructive and downright devastating divorce can be – then proceeds to nonsensically argue the current legal state of marriage is such that marriages are insufficient contracts because they essentially are agreements that “can be unilaterally broken without consequences” …Say what?
Admittedly, one person initiating a divorce and dragging the other unwilling party through unwanted consequences is lamentable. The fact the consequences can be so severe, expensive, and dire, is largely the fault of other government policies, as the writer rightly points out, but the answer is not to require someone to prove “fault” – e.g. adultery, cruelty, abandonment, mental illness, and criminal conviction – or be forced to remain in a marriage. Indeed, for an article coming from FEE.org, I have to point out it is the very antithesis of libertarianism to advocate a person be forced to remain in a marriage unless they prove certain elements of fault, just because some number of years ago they made vague promises to be “patient” and “kind” and to be together “forever.”
While there are a great many things wrong with family and divorce law, this Men’s Rights Activist (predictably) and this author (who claims to be a feminist) blatantly turn logic on its head by suggesting that not forcing someone to stay in an undesirable marriage is in fact “forcibly” separating family, home, and property. This makes absolutely no sense, unless operating on the assumption people are objects, or a means to an end, and that a spouse is legally entitled to the labor and utility of the spouse attempting to dissolve the marriage.
The author concludes, “No-fault divorce removed all vestige of marriage as a contract between two people” and proposes the following:
The simple and proper solution is to return to marriage as a civil contract. It does not need to be a complicated agreement. It could and probably would evolve in the same manner as wills have—that is, a variety of standard ones can be purchased inexpensively in bookstores or online. Close down the family court systems that regulate divorce and which provide lawyers with inflated incomes. Allow the breach of a marriage to be arbitrated in a manner spelled out in the contract itself.
While I can get on board with the idea of privatization of matters that are none of the government’s goddamn business, it is absolutely not the case that No-Fault Divorce is to blame for the failure of marriage as contract. If marriage is to be treated as a contract, it must abide by the principles of contracts, and most marriages do not, and historically have not, at least in the modern era with which I am familiar. The hopelessly vague, undefined, and nondescript marriage vows 99.99 percent of couples currently exchange in the course of wedding ceremonies would never hold up as a valid contract in any court of law (private or state-run).
Additionally, to the contrary, it’s unlikely marriage in and of itself could ever be an uncomplicated agreement. There are undoubtedly some clear indicators of wrongdoing, such as repeated cheating or violence, but for the most part, marriage is a complex relationship of constant negotiation and re-negotiation based on mutual, rather vague, promises of people to do their best to stay together. Sometimes even cheating or violence may be forgiven, but sometimes a more minor offense might be the straw that breaks the camel’s back after years of emotional neglect or abandonment. Regardless, it’s not the place of the law to dictate what constitutes “fault” and force parties to remain together in the absence of proof of that fault.
Surely, some terms of marriage commonly used are unambiguous; promises to be faithful are widely understood. Few people are going to get away with, “Oh shit, you mean sleeping with your sister/brother violates my promise to be faithful?” On the other hand, spouses often promise to “honor” or “respect” one another. They assent to bible passages in the course of their vows to be “patient” and “kind” to each other. But what does this actually mean?
Anyone who has ever read any contract will notice the first several pages of any contract contain recitals and definitions setting forth the mutual understanding of relevant context and certain terms. Well, what in the fuck does “honor” or “respect” mean to each individual? Are you dishonoring your husband if you only do the laundry every month when he wants you to do it every week? Is your husband disrespecting you if he plays too many video games after you’ve asked him to cut down? What does “patience” and “kindness” entail? How patient do you have to be after your husband forgets to clean up the dog poop day after day, month after month? How kind do you have to be if your wife kicks the family cat? Some women promise in vows to “follow” their husband, the god-ordained “leader” in marriage; does that apply when the husband goes on a murder-suicide rampage? How are these terms defined, and how are the respective actions to be implemented?
To my knowledge, few, if any marriage vows bother to define or clarify the meaning or expectations associated with these terms. If a husband regularly enjoys taking a giant shit on the living room floor, is this “dishonor” or “disrespect” constituting breach of contract? And if so, to what remedies is the wife entitled? In that case, would a proponent of Fault Divorce agree the husband committed fault? Or is that insufficient “fault” such that the wife is still without reason to “unilaterally” breach the contract? If a spouse threatens to cheat or file for divorce, but has not actually done it, does it count as anticipatory breach, so that the other is immediately entitled to remedies? Or given the duration and gravity of the relationship contemplated, are such matters considered minor breaches for which the breaching party is entitled to a chance to cure the defect?
Things get even more complicated. Contracts are rightfully dissolved when there is a frustration of purpose. If Alana contracts with Beth to supply widgets for building robots, but Alana’s robot factory gets crushed by an asteroid, there is a frustration of purpose, and the contract can be terminated. As applied to marriage, most people enter into marriage to mutually provide and receive security and happiness. What happens when one person feels financially and emotionally insecure and miserable? This is certainly frustration of purpose for at least one, and possibly both parties, but more importantly, who is the breaching party? Is it the person who failed to take reasonable measures to provide security and happiness to the other? Or is it the person who is insecure and miserable because he/she is simply a difficult person? We don’t know because none of these things are agreed upon in advance of 99.99 percent of marriages.
Imagine the many pages of definitions one would have to append to a contract to be able to define what circumstances constitute “security” or “happiness” for each individual involved. Perhaps one might want to include a clause indicating that if a party substantially complies with certain acts in furtherance of promoting security and happiness, the duty/responsibility is considered fulfilled and the other spouse’s lack of subjective feelings of security and happiness is not grounds for breach. Or perhaps the parties might decide that in fact, the individual subjective valuation of these elements is key (or would that then be an illusory contract?)
Even if we were to force a contract analysis on marriage vows, which do not remotely fit the definite requirements of contract formation, what’s to say the flood of divorces are actually “unilateral”? Maybe the spouse who filed for divorce on No-Fault grounds in fact felt dishonored, disrespected, unloved, and not at all “cherished” for the last 15 years, and thereby finally decided to seek divorce as a remedy for the 15 years of continual breach by the spouse who is unwilling to divorce. This attempt to conflate marriage promises with enforceable legal agreements is laughable and downright wrong.
If definite terms of a marital relationship were in fact achievable, one could begin to make some good faith arguments as to who was breached the contract and the damages owed accordingly, but in the absence of these definitions, marriages that dissolve today and result in nasty legal consequences do not come to such ends because someone “unilaterally” breached a clear-cut, valid, and mutually agreed upon contract “without consequences” or because of No-Fault Divorce. Rather, they dissolve in a messy way because an adequate, comprehensible, and enforceable contract as to rights, responsibilities, and property division was not created to begin with.
Many, many, many people do not make clear agreements when they get married (or any agreement at all), and then become entangled in the government clusterfuck of divorce law when shit hits the fan. Of course, even for couples that do make clear agreements (e.g. in the form of a prenuptial or marital agreement), the government (at least in California) can unfortunately override their agreements to an extent, e.g. agreements to not pursue spousal support or child support. But according to this source, only 5 percent of divorces involve couples who had a prenuptial agreement, so these people are in the vast minority.
What is far more practicable and realistic is for the finances associated with marriage, rather than marriage itself, to be subject to contract principles, but free from some of the egregiously unjust and burdensome laws currently in existence. It is much easier to formulate how to split a house, a 401K account, or how to divide other family assets, than to decide who is at “fault” for the degradation of happiness, security, fulfillment, and meaning in a marriage. When entering into a marriage (however each individual may subjectively define that relationship), it is a good practice to decide in writing or otherwise how to split assets, property, income, and how to handle other matters in the event of dissolution.
Certainly, as acknowledged above, because of bad laws and state meddling, even if people do come to definite agreements, they can face expensive lawyers and unfortunate consequences. However, as it currently stands, while legal fees and hurdles can be a barrier, the majority of people do not bother to attempt to make specific agreements because they simply do not want to. According to the Huffington Post, it is a minority of people who think a prenup is a good idea (44 percent), and even of people who have been divorced, only 15 percent wish they had one in the first place (here). Just take casual poll of people you know, and it becomes clear it’s not just that it can be cost-prohibitive to hire attorneys; a large proportion of people avoid definite, binding financial agreements in the context of marriage simply because they believe it unromantic, morbid, pessimistic, and just a plain bad idea, and this has absolutely nothing to do with No-Fault Divorce, nor is it solely the fault of government.