Vow for now - harmful effects of no-fault divorce

National Review, May 29, 1995 by Robert L. Plunkett

Mr. Plunkett, a practicing attorney, is vice dean of the Southern California Institute of Law and an adjunct professor of the University of LaVerne School of Law. He is happily married (as that term is currently understood) to his original wife.

MUCH has been written in the last twenty years about the state of marriage. These commentaries tend to fall into two opposite camps: those which advocate or celebrate the redefinition of matrimony and those which deplore its decline. Two decades ago, the former clearly predominated; the latter are more common today. To my knowledge, however, none of the commentators has stumbled upon the fact that marriage was abolished in the United States in the 1970s. That status which we call "being married" today is nothing of the kind; it is to real marriage what the Holy Roman Empire was to the real Roman Empire, something that borrows the name of a dead institution to give itself legitimacy.

According to Black's Law Dictionary (1968), in marriage "a man and woman . . . mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and wife." That quotation summarizes definitions set forth by precedents and authorities going as far back as such things are preserved. In simple terms, the essentials of a marriage are: 1) a man and woman 2) in a state of union 3) for life. There are variations from time to time and from society to society. In polygamous cultures, for instance, one man can have many marriages, but each is a one-man-and-one-woman contract.

The "for life" part of the definition has been more or less elastic since at least Roman times. But the promise to be married "until death do you part" was, until the establishment of no-fault divorce, binding on at least one of the parties as long as the other remained blameless. Where women were chattel, the wedding vow was breakable by the husband but unbreakable by the wife. Where a tribeswoman could turn out her husband at will, the husband was bound to stay with the wife until she either threw him out or did something wrong that would justify his leaving.

It was established long ago by the courts that alleged marriage vows which did not contemplate a lifetime union did not create a marriage. Saying "I promise to be your wife for five years" did not make someone a wife for even one second. With even stronger logic, a vow to be husband and wife "as long as we want" was no marriage vow. A purported marriage ceremony established a marriage if and only if at least one of the participants believed that they were making a commitment to which they would be held for life.

What is this thing we currently call "marriage"? Most wedding ceremonies still contain the requisite language about "forsaking all others," remaining together "for richer for poorer, in sickness and in health, until death do you part." But these words have no basis in reality. Under current law the bride and groom are in fact promising to be husband and wife only until one of them doesn't want to any more. The lifetime commitment which defined marriage is gone.

"You can't stop somebody from getting a divorce if they really want one." That is the first thing an ethical lawyer today tells someone who is trying to avoid a divorce. Divorce for the asking is the rule. Even if a state required more, that could easily be gotten around by establishing a brief residence in a state that wasn't so picky.

In 1969, when California Governor Ronald Reagan signed the nation's first no-fault divorce law, he and the legislature talked as if they were merely reforming the existing system by establishing a single humane standard for the dissolution of marriage. Supposedly, they were simply making it easier for those trapped in hopeless unions to fix their lives by getting out. It was hailed as a progressive reform and quickly imitated by almost every other state. It was a noncontroversial act, buried in the news by the Vietnam War and other concerns. Yet signing the no-fault divorce law may have been the most important thing Reagan did in his entire political career. To understand why, we need to review the history of divorce.

Anglo-American jurisprudence once considered marriage a sacrament, or at least an unbreakable vow. While a marriage might be annulled in circumstances which struck at its validity, such as concealed impotence, a marriage, once valid, was set in stone. This was true even if both spouses desperately wanted a divorce, because in making their marriage vows they were deemed to have made a covenant not only with each other but also with God and society. As late as 1900, fewer than one thousand divorces a year were granted in all of Britain.

The iron rule against divorce softened with the adoption of the principle that a person who was grievously wronged by his or her spouse should get relief from the courts and that this relief could include the right to get out of the marriage. When people "sued for divorce," they actually were filing a suit against the other spouse, just as if they were suing for personal injury or breach of contract. To get a divorce, the petitioner had to show that the respondent was guilty. If guilt was found, there would usually be not only a divorce but damages in the form of alimony and loss of property.