The legal
status quo of no-fault
divorce is a great
hindrance to the
stability and endurance
of “The American
Family”. There are
considerable moral and
prudential objections to
no-fault divorce, but an
even stronger case
against it can be made.
No-fault divorce is a
violation of the
individual rights
of the party that
does not initiate
divorce proceedings as
well as of any children
that a marriage might
have produced.
To
understand why no-fault
divorce is incompatible
with basic individual
freedoms, we need to
examine the fundamental
principles behind any
contract -- including
marriage. Contracts are
formed under the
principle of
consent. All
of the parties involved
in a contract agree to
participate in a certain
exchange of goods or
service or to bind
themselves to certain
courses of action. No
coercion or
compulsion
can be at the foundation
of a legitimate
contract.
In order for
a contract to be
legitimately dissolved,
one of two things must
happen. Either there
must be a violation of
the contract by one of
the parties, in which
case the injured party
or parties may appeal to
the law in order to
compel the other party
to adhere to the
contract, to receive
restitution for damages,
or to nullify the
contract altogether.
Without a violation of
the contract, the only
way for it to be
legitimately dissolved
is for
all parties
involved to agree to do
so.
From a legal
standpoint, marriage is
fundamentally a
contract, entered into
with the consent of both
partners. Thus, in order
for a marriage contract
to be legitimately
dissolved, one of two
things must occur.
Either there must be
some violation by one of
the partners of the
terms of the contract or
of some individual
rights of the other
partner. Adultery,
squandering the property
of one’s partner, and or
physical and emotional
abuse falls into this
category. Or, if no
violation has occurred,
both partners
must agree to dissolve
the marriage of their
own free will -- each of
them thinking themselves
better off as a result.
But no-fault
divorce goes against
this principle in
permitting one of the
partners to
unilaterally
initiate legal
proceedings and
effectively dissolve the
marriage. Under no-fault
divorce, all that this
partner needs to do is
file the relevant
paperwork; the judge is
not permitted to
question the legitimacy
of the reasons for which
the divorce is filed.
Indeed, via this method,
many marriages are ended
against the will
of one of the
parties. This is a clear
violation of the
principle of consent and
of the rights of the
partner who did not
agree to the divorce.
Consider a
similar situation
between two businessmen,
W and Z. W has signed a
contract to deliver a
shipment of goods to Z,
in exchange for an
upfront payment from Z.
Z pays W the upfront
payment, but then W
suddenly changes his
mind about delivering
the shipment and files
for “no-fault contract
nullification” with the
local court. Does W have
the right to
unilaterally break the
contract,
with the aid of the law,
even though Z
has faithfully executed
his side of the bargain?
Surely, he does not. Why
is the case of the
marriage contract any
different?
In this
hypothetical situation,
Businessman W may try to
opt out of his contract
with Z in order to
receive something for
nothing -- to get Z’s
money without having to
deliver the goods.
Similarly, many people
today use no-fault
divorce to effectively
expropriate their
spouses against their
will. Such individuals
may say that “I’ve
simply realized that the
two of us are not a good
fit,” but what they are
really thinking is: “I
want to get half of
his/her stuff without
fulfilling any of the
promises I made in the
marriage contract.” Should the law actively
collaborate in the
suffering of innocent
people who have done no
wrong and who have kept
their word? Should the
law protect those who
are actively trying to
break their
word and effectively
steal their
spouses’ property?
Furthermore,
consider a family with
children. Surely, if one
of the parents files for
no-fault divorce, the
other parent will not be
the only person harmed.
The children are, too, a
part of the family and
will be deprived by the
divorce of the kind of
material support and
parental upbringing they
have come to expect and
rely on. Certainly,
there may be child
support payments, but
they pale in comparison
to a situation where the
children can
fully tap the
material resources made
available by both
parents. Furthermore,
the children’s
consent is
not asked for in the
divorce proceedings,
even though the children
may be even more
adversely affected by
the divorce than either
of the parents.
I propose
eliminating the legal
allowance for no-fault
divorce and replacing it
with the much stricter
concept of
consensual divorce.
Consensual
divorce may only be
granted if
both spouses
agree to it of their own
free will and without
any force or threats of
force imposed by one
spouse on the other.
Furthermore, in a family
with children below the
age of 16, all of the
children must agree of
their own free will for
a consensual divorce to
be granted. But even in
cases where all the
children agree to the
consensual divorce, the
judge may have the
liberty to not grant the
divorce if he believes
the children’s consent
to be due to
misinformation or a lack
of understanding of the
full implications of a
divorce.
Abolishing
no-fault divorce and
replacing it with
consensual divorce will
restore to marriage all
the protections that
virtually every other
kind of contract already
enjoys. This change will
protect the individual
rights of all the
parties involved in the
marriage contract, as
well as the children in
many families.
Moreover, by making
divorce more difficult
and restricting it to
only cases of genuine
abuse and contract
violation or cases where
all parties
agree that a divorce is
for the best, the shift
to consensual divorce
will keep more families
together and make it
possible for all married
people to be able to
rely on the
family’s continuity in
making their financial
and personal decisions.
Knowing that the
marriage will endure
unless somebody violates
the contract or both
partners agree to end it
will enable both
partners to harness many
of the economic
advantages of marriage,
which stem from
long-term specialization
and division of labor.
More stable families
will lead to more
comfortable, secure, and
loving environments for
millions of children,
who will be less
inclined toward crime,
underachievement, and
self-destructive habits.
Individual rights,
morality, and a
consideration of the
consequences all require
the abolition of the
legal allowance for
no-fault divorce.
The
Fault With No-Fault Divorce