Vow for now - harmful effects of no-fault divorce

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

The grounds for divorce, primarily adultery and desertion, were originally narrow and directly related to the marriage contract. Furthermore, divorce was granted only when an innocent party sued a guilty one. If, for instance, the wife and the husband each proved that the other had committed adultery, the couple had to stay married, because the guilt of one spouse canceled out the guilt of the other. If you watch old movies, you might hear a character say, "My wife won't give me a divorce." This meant that the wife wouldn't go along with his seeking a divorce and that she refused to seek one herself based on whatever grounds she had. Under the fault divorce system, the innocent spouse had an absolute right to keep the marriage together.

I'm OK, You're OK

THE idea of divorce as a lawsuit by a good spouse against a bad one eroded over the decades as a result of misuse and the "reform" it encouraged. There were two major types of misuse. First, one party let the other trump up a phony adultery or desertion purely to meet the letter of the law. Second, courts stretched the letter of the law to absurd lengths to accommodate the parties -- for example, by ruling that trivial incidents qualified as "extreme mental cruelty." But this worked only if the husband and wife were in cahoots.

The misuse of existing divorce law involved blatant hypocrisy and frequent perjury, but it did not strike at the essence of marriage as a lifetime commitment. So-called reform of the divorce laws, inspired largely by distaste for collusive divorce, did far more damage. By creating new grounds such as "incompatibility," legislators sought to get away from the idea that you could end a marriage only if one spouse was bad and the other good. These attempts to graft a nonfault ground onto the traditional system of suing for divorce led to some odd legal decisions. Then came the idea of no-fault divorce.

By 1970, among the intelligentsia, the idea that marriage was a sacred commitment was as dead as Queen Victoria, and the idea that marriages should be preserved for some reason independent of the happiness of the couple was comatose. The belief that people should not be forced to stay in bad marriages was firmly established among our policy- and opinion-makers. No-fault divorce fit this new dogma perfectly. Instead of inquiring into whether the husband or wife was bad, the courts would inquire into whether the marriage was bad. Instead of suing for divorce, one would petition to dissolve the marriage. Issues of fault and blame would be eliminated.

Had the first no-fault divorce law been presented as one that would allow either spouse to dissolve the marriage at his or her whim, it almost certainly would have been defeated. It appears that everybody whose opinion counted believed that its sole effect would be to make it easier to end hopeless marriages. After all, the law's main innovation was to allow the dissolution of marriages afflicted with "irreconcilable differences which have led to the irremediable breakdown of the marriage." Few, given the dominant ideology of the time, could oppose divorce in that situation.