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?

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