Clayton Craddock
In response to frustration among legal practitioners regarding fabricated legal marital controversies and divorce difficulties, California Governor Ronald Reagan signed the Family Law Act of 1969, resulting in the country's first no-fault divorce law. No-fault divorce became available to spouses who filed either a unilateral divorce (without the spouse's consent) or a consensual divorce (with the spouse's consent). The rest of the country followed suit over the next 15 years, resulting in a skyrocketing divorce rate.
The law's supporters said it would do away with lengthy trials, reduce animosity, contain costs, and spare people additional emotional pain. The reality of divorce proceedings was much darker. With unilateral divorce, couples often took adversarial roles--the very thing the original law's proponents thought would be avoided. When children are involved, divorce can be more contentious. Parents usually try to demonstrate the other isn't a fit parent—pitting one spouse against the other for an advantage with custody, child, and spousal support orders.
Why do we tolerate unilateral divorce, where the power rests in one person's hands to vote on behalf of the whole family? Doesn't the fact that a spouse can call it quits without the other's consent raise questions concerning the vows taken and the institution of marriage itself? With no-fault divorce, is your marriage secure? At any time, your spouse can pick up and leave. Some say it’s the worst business contract you can sign.
Why isn't the marriage contract as consequential as any other ordinary business contract? A contract is legally binding, which means the law provides a remedy if the contract is not fulfilled. When one party fails to perform a term of a contract without a legitimate legal excuse, the contract has been breached. There will be legal remedies. Monetary compensation is often awarded to the injured party to the contract.
When you enter into a marriage, you have a written agreement with the state (the domestic relations law) and a verbal contract (your wedding vows). In a marriage, you have all the requirements of a legal agreement. If we applied the same standards to matrimonial law, the party breaching the marital contract should be sanctioned.
Why is divorce, which is essentially the dissolution of a marriage contract, not treated similarly as the dissolution of an agreement between business partners? Can we make marriage important enough to be viewed as a legally binding contract by the courts? Matrimonial laws should express a particular interest in encouraging, supporting, and protecting the marital agreement.
First, let's separate the marriage (and divorce) contract from shared parenting. In a child's perfect world, the parents stay together and all live happily ever after. If the adults cannot do so, the child's need for both parents remains the same and shared parenting should be the default parenting arrangement, with exceptions only for extreme cases that involve something like violence. That's it on that topic.
As to marriage contracts, they are unlike other contracts because no two are alike. How is that? Well, the marriage contract has two major parts. One establishes a legal tie between the parties and that is codified by the license, etc. The other part is unwritten and has as many variations as there are marriages. To go further, much of the unwritten contract is also unspoken. For example, the license legalizes sex between the two. It does not speak to frequency or any other details of sexual relations. If it is permissible by law, does that make it a contractual obligation? Couples find their way through this in spoken and/or unspoken ways. The same is true for financial responsibilities and dishwashing and raking leaves and we didn't get to child-rearing roles.
If one party feels the other is not living up to his/her role, is that a contractual failure? If it is, what remedy might be applied?
There is no way this can ever be enforced like other contracts. In the event the marriage comes apart, though, shared parenting should be the default.
Matrimonial laws must be reexamined. Maybe there can be more reasonable controls on unilateral and involuntary divorce when children are in the picture— like shared parenting.
The essential point of fault is to make sure that a spouse is held accountable for their actions and misconduct and cannot escape the consequences of their actions or behavior. No-fault laws essentially allow one party to not adhere to the principles of the marital agreement.
Wouldn't it be beneficial to the public interest if there were a better understanding of the meaning of marriage and the marital contract? That might help bring some stability to the institution of marriage and our society.
Clayton Craddock is a father, independent thinker, and the founder and publisher of the social and political commentary newsletter Think Things Through and host of the Think Things Through Podcast.
Twitter: @claytoncraddock
You already know what I think, or at least after all we've exchanged and shared for years now I hope you do: the state, any state, is simply unqualified on every level to be the arbiter and adjudicator of anyone's personal affairs, period.
Dammit, stop whining about how to fix the state's behavior already. The better investment of one's own humanity is to understand first why anyone ever became so weak and helpless as to require and expect any form or function of government to manage our lives for us.
The things you speak of, and this being only one example, in terms of what's so wrong about the state's behavior, only demonstrate that it is far too important in our lives to begin with.
And this is a damning indictment of the people, not the state. The state doesn't regard itself as being accountable to us for one reason:
WE DON'T REQUIRE IT TO BE.