Maggie Gallagher:
By gutting the marital contract, no-fault divorce has transformed what
it means to get married. The state will no longer enforce permanent
legal commitments to a spouse. Formally, at least, no-fault divorce thus
demotes marriage from a binding relation into something best described
as cohabitation with insurance benefits.
What have we gotten in exchange for this sweeping abandonment of the
idea that marriage is a public, legal commitment, and not merely a
private exchange of sentimental wishes? When in the 1970s and early
1980s no-fault divorce swept through state legislatures, its advocates
promised us two great benefits: (1) no-fault would reduce conflict, as
spouses would no longer be forced to assign legal blame for the
marriages end, and (2) no-fault would enhance respect for the law, as
couples longing for a divorce would no longer have to commit perjury,
lodge false accusations of adultery, to get one.
In this sense, as Herbert Jacob points out in his excellent history,
Silent Revolution, no-fault divorce was the brainchild of elites who
consistently portrayed it as a mere technical adjustment to the law, a
minor change that would in no way endanger marriage or encourage
divorce, but merely close the gap between the law in theory and the law
as it was actually practiced.
In reality no-fault divorce laws did something decidedly more
revolutionary. Rather than transferring to the couple the right to
decide when a divorce is justified, no-fault laws transferred that right
to the individual. No-fault is thus something of a misnomer; a more
accurate term would be unilateral divorce on demand.
The idea that couples who wish to divorce should be able to do so
without making false accusations is now uncontroversial. Even the most
aggressive of the new divorce reforms to restore fault recently proposed
in Michigan permits couples to dissolve their marriages quietly and
amicably, by mutual consent. The idea that marriage is a covenant larger
than the two people who make it has already been lost.
What the current no-fault debate revolves around is the lesser question:
Is marriage less than a legal contract between two people? Is the
marriage contract enforceable, and if so how? When we marry, are we
making a binding commitment or a fully revokable one (if revokable
commitment is not an oxymoron)? If the latter, what is the difference,
morally and legally, between getting married and living together? Why
have a legal institution dedicated to making a public promise the law
considers too burdensome to enforce?
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