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 marriage’s 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? ////////////////////////////////////////////////////////////////////////////// /// ZION LIST CHARTER: Please read it at /// /// http://www.zionsbest.com/charter.html /// ///////////////////////////////////////////////////////////////////////////// --^---------------------------------------------------------------- This email was sent to: [EMAIL PROTECTED] EASY UNSUBSCRIBE click here: http://topica.com/u/?aaP9AU.bWix1n.YXJjaGl2 Or send an email to: [EMAIL PROTECTED] For Topica's complete suite of email marketing solutions visit: http://www.topica.com/?p=TEXFOOTER --^----------------------------------------------------------------
