The Divorce Law Disaster

By Michael Wagner

            Long before the same-sex marriage controversy, heterosexuals were demeaning and degrading the institution of marriage by frequently abandoning the commitment it is supposed to entail. The rate of divorce has risen dramatically since the 1960s due to social change that emphasized individual desires over faithfulness to duties. Making divorce easier was supposed to lead to greater happiness because people would no longer be trapped in loveless and uncaring marital relationships. But, in fact, the dramatic increase in divorce has led to severe social problems and unhappiness.

            The children of divorced couples bear the brunt of the consequences of divorce. The children are genuine victims of the divorce revolution, and many of them suffer from the effects throughout their entire lives. 

Divorce hurts children

            These effects have now been well documented. For 25 years American scholar Judith Wallerstein has studied the lives of children whose parents divorced. In 2000 her results were published in The Unexpected Legacy of Divorce (Hyperion Books). The introduction to this book includes summaries of major findings: “National studies show that children from divorced and remarried families are more aggressive toward their parents and teachers. They experience more depression, have more learning difficulties, and suffer from more problems with peers than children from intact families. Children from divorced and remarried families are two to three times more likely to be referred for psychological help at school than their peers from intact families. More of them end up in mental health clinics and hospital settings. There is earlier sexual activity, more children born out of wedlock, less marriage, and more divorce. Numerous studies show that adult children of divorce have more psychological problems than those raised in intact marriages” (p. xxix).

Thus the negative social consequences of divorce perpetuate themselves, as many children of divorce manifest a disproportionate amount of anti-social behavior (such as non-marital sexual activity) that effect their own offspring as well. In this respect the situation goes from bad to worse. Divorce not only affects the couple who split up; the children are frequently affected much more severely than the parents, and as a result our entire society is affected for the worse. Divorce is a disaster for the whole country, not just those directly involved.

The rise of no-fault divorce

            The dramatic rise in the rate of divorce has been assisted by the adoption of no-fault divorce laws in Western countries. Barry Maley’s 2003 book Divorce Law & the Future of Marriage (Centre for Independent Studies) describes the results of no-fault divorce law within the Australian context, but the principles are likely the same for other English-speaking Western countries.

Before the adoption of no-fault divorce law (1975 in Australia’s case), divorce could only be attained if one spouse could show a “fault” by the other spouse. Fault consisted of such offences as adultery, desertion, cruelty, etc. The innocent party could then pursue divorce in court. In cases where one spouse wanted the marriage to end but the other did not (and there was no genuine fault) agreements could be reached whereby the spouse who didn’t want a divorce could negotiate from a position of strength. The spouse who did want the divorce could offer his or her spouse a favorable settlement to get his or her cooperation to divorce. “An implication of this is that the spouse who wanted the marriage to continue possessed a ‘property right’ over the marriage that the spouse who wanted the divorce had to ‘purchase'” (p. 28). The spouse who did not want to divorce had considerable legal power in this situation.

This power was removed by the adoption of no-fault divorce laws. Under these new laws, it is sufficient if only one spouse wants a divorce. “The change to no-fault divorce virtually inverted the former juxtaposition of the spouses and their relative powers. Either spouse could now end the marriage unilaterally without any issue of fault or proof of misconduct, and without needing the consent of the other spouse. Indeed, the spouse who wanted to leave now held the ‘property rights’ in the marriage and the other spouse had no legal leverage for bargaining over the terms of the divorce settlement” (pp. 29-30).

Predictable, horrible consequences

 Of course this change in law is not the sole, or even the primary, cause of the increase in divorce. The social change that had taken place due to the sexual revolution of the 1960s is undoubtedly the main factor in the breakdown of marriage. However laws do have consequences, and the effort to make divorce easy certainly adds to the problem.

“The move from fault-based to no-fault divorce had two consequences. It no longer gave public or legal recognition to the reality of serious misconduct in a marriage and the injury or distress that it may cause to spouse and children. It abolished the possibility of compensating a victim of a destroyed marriage…with a favorable property settlement and/or maintenance/alimony provisions arrived at by private bargaining or a court order. Together these two effects diminished the notion of marriage as a serious and permanent bond, thus foreboding its easy and more frequent dissolution” (pp. 30-31).

Although the divorce law in place before no-fault divorce was adopted had problems of its own, it at least created a situation where a weaker or vulnerable spouse could prevent a divorce unless his or her interests were protected in a settlement. The vulnerable spouse could bargain from a position of strength. “An important effect of no-fault divorce was to disempower a victimized spouse, or a spouse unwilling to divorce, by depriving him or her of leverage to bargain over the terms of settlement of property and financial matters” (p. 36).

Why feminists like no-fault

 According to Maley, those who have suffered the most under the no-fault divorce laws are women in otherwise “traditional” marriages. That is, women who stay home to raise the children while the husband works are most vulnerable to disadvantageous property and financial settlements. While the husband enhances his earning potential over time through his job and developing his career, his wife at home with the children is (rightfully) sacrificing her career prospects by investing her life in those children. This puts her at a notable financial disadvantage if her husband decides to divorce her. He can still earn plenty of money in the marketplace, whereas she likely cannot. A non-traditional wife, who had been pursuing her career all along, would not be in such a bad situation. It is the traditional wife at home with the kids who has the most to lose through no-fault divorce.

Interestingly, some feminists favor no-fault divorce for this very reason. They believe marriage is bad for women because wives become economically dependent upon their husbands. Therefore they don’t want fault-based divorce laws that protect traditional housewives because that will encourage and perpetuate “female dependency.” Instead, they want women to pursue economic security through careers, rather than staying home to take care of children.

            As feminists see it, “if fault-based divorce were to be reintroduced, and produced higher settlements for women on the basis of compensation for lost career opportunities, this would encourage women to make ‘economically disabling’ choices – by rejecting careers – in the future. So, the feminist problem is to engineer the circumstances of marriage and divorce to ensure that women will not be so foolish as to make ‘economically disabling’ choices. In other words, they should not commit to gender specialization in marriage but maintain full-time workforce participation, and divorce law should not make special provision for women who choose otherwise” (pp. 50-51). Female emancipation in marriage revolves around the care of children. Women who stay home to care for their children are dependent upon their husbands. “The emancipated wife has to be willing to give up the care of her children to outsiders” (p. 51). Feminist support for no-fault divorce clearly works against the interests of those women who are willing to sacrifice their careers in the interests of their children.

The way it should be

             Laws cannot make people good, but they can provide incentives or disincentives to certain behavior. This is true with regard to marriage and divorce as it is with other matters. “The outcome of the no-fault initiative has been a marital regime that erects perverse incentives that undermine the very motives and conditions that successful marriages need” (p. 79).

It would be much better, of course, to fix this incentive structure to favor permanent marriage and traditional family arrangements. This would not only benefit the husbands and wives involved, but more importantly, it would benefit the children. Children suffer the worst consequences of divorce, and so they would gain the most from improved divorce laws. There will always be divorce, but the law should make it difficult, not easy, and it should protect those who are most vulnerable, traditional wives and their children.

* This article was first published in Reformed Perspective, June 2004