Saturday, July 24, 2004

A Modest Proposal
This is a lengthy but worthwhile article on the current state of family law. Many good points on the problems with the current no-fault divorce system. Where else in life can the one who breaches a contract still go to court with no prejudice against them and ask for all the benefits from the contract? Why on earth have such a crazy system for the most important agreement in life? (The article proposes one answer: the more divorces there are, the more divorce lawyers and courts and social workers there are.)

No-fault divorce was sold because people shouldn't be "forced" to remain married. But it's no  more fair to force them to get divorced. At least the marriage they voluntarily chose at some point.

The fad for "covenant marriage" laws seems to have passed. But I see no reason why people shouldn't accept a simple, fair proposal with no religious trappings: treat marriage like any other contract. If two parties both want to rescind the contract, they can do so on whatever terms they want. But otherwise, the one who breaches the contract can claim no benefits under it and may be liable for damages.

How would this work in real life? There would basically be three potential divorce scenarios:

1. Both parties want to get divorced. They would draw up their own divorcing contract, negotiate between themselves who gets the kids, the house, etc. The court would then certify and enforce this contract, freely negotiated between the parties.

2. One party breaches the marriage contract in some way other than filing for divorce. (The classic grounds for fault: adultery, abuse, abandonment.) The other party can, if he or she wishes, file for divorce by establishing one of those grounds for fault. If they establish it, they are presumptively entitled to the children, the house, child support, etc., since they were injured by the breach of the marriage contract. (The other party can of course keep their own personal belongings and may have an equity claim to some portion of the marital property, as would be the case under any other contract.)

Some would say that this puts us back to the bad old days of evil, acrimonious divorces where everyone's dirty laundry is aired. Yes, and we're so far from that now. Does the name Jack Ryan ring a bell? Especially when children are involved, all that dirty laundry is going to be aired anyway, even if it has to be soiled for the purpose at hand.

3. One party wants a divorce but the other does not, and no fault is shown. In that case, the party who wants a divorce gets one--but that's all they get. In fact, they may be liable for damages (alimony, child support, etc.), to the extent the other party can prove them.

Now, there's nothing religious about that treatment of marriage and divorce--just simple, straightforward contract law. Who could object? And it would result in a nosedive in the divorce rate, as people discovered it wasn't worth the cost to go off and "find themselves."

And on the side, it might dampen the push for same-sex marriage. If marriage really was marriage, would they want it?


Anonymous said...

As much as I hate no-fault divorce, you've overlooked scenario 4: Both parties want to get divorced, but party A wants it more than party B, and party B is just that little bit more selfish or vengeful. Party B will therefore not cooperate with party A in implementing scenario 1, but continues to make party A's life ever more miserable while staying just this side of grounds for scenario 2, driving party A to go for scenario 3. Thus party B retains the bulk of the marital assets of which party A really ought to have a share in this situation. This scenario 4 is likely to occur with alarming frequency. If people are mature and unselfish enough to negotiate a fair divorce settlement, they're usually mature and unselfish enough to stay fairly happily married.

As for your remarks on how this would affect the desire for same-sex marriage, the answer is obvious: the proportion of straights to gays wanting to get married under your proposed system will be exactly the same as it is now, for two reasons. Firstly, the genie is already out of the bottle, and making the stopper tighter isn't going to put it back in. Secondly, to suppose that gays are less interested in lifelong relationships than straights is to fundamentally understand man's fallen nature. We are *all* fallen and depraved, each in our own individual way, and gays are not somehow more fallen than straight people. There is no reason to assume that, given the availability of the same opportunity, they will desire it less than straight people do, or be less successful at it.

Auntie M.

Anonymous said...

Arggh! That should be "fundamentally misunderstand", of course.

Auntie M.

Queen of Carrots said...

First of all, freely negotiated does not necessarily mean amicably negotiated--they may very well each get their own lawyer and duke it out. I don't see scenario 4 occurring where Party A actually wants the divorce less--they're hardly acting in a way to preserve the marriage. It could well happen when they are more interested in spiting the other party than anything else, but selfish and juvenile behavior is not going to be prevented by any kind of family law. (You remember the joke about the woman whose husband got half of everything . . . so she cut the car in half, the house in half, etc.) The other party is always free to retaliate in kind. Not pretty, but there's nothing to be done about it.

I do, of course, realize that no legal change is going to reverse the sexual revolution. A revival of morals must come from another source.

I don't think one group of people is any more or less depraved per se. I'm sure if divorce laws got stricter, we'd also see an upswing in cohabitation among heterosexual couples. But the permanent, exclusive nature of marriage is tied to the biological and psychological realities of the male-female relationship: the need to legitimize resulting children and the greater demand of women (on average) for fidelity. Those dynamics aren't present in a same-sex relationship. As witness, marriage has always existed, and homosexuality has always existed--in some cultures, even openly honored. But not until now has anyone ever suggested homosexual relationships need or would work as marriage. In my opinion, that's because marriage has already disintegrated to the point that it has little meaning left.

Anonymous said...

I think you're mistaken on two counts: (1) The permanent, exclusive nature of marriage is tied to the decision of God to create it as a representation of our relationship with him; the causes you suggest are more appropriate to an evolutionary biologist view than a spiritually aware Christian one. (2) Same-sex marriage is not a new thing, though this is likely the first time it's been wanted on such a broad scale. Same-sex marriage was not unknown among the Romans, the Greeks, Native Americans, and some Africans. There's ongoing debate about whether it was practiced in medieval Europe.

Auntie M.

Queen of Carrots said...

You are right on number 1; I was making this argument from a secular standpoint, though, so I won't feel too guilty. (Even things that have purely spiritual origins have secular benefits, because after all God made the world.) But, of course, if one looks at marriage as a representation of God's union with us, same-sex marriage makes even less sense and becomes a form of heresy, because it says false things about the nature of God and His relationship with us.

As to number 2, I freely admit that same-sex relationships have existed, but my impression (although I admit I'm no scholar) from ancient societies is that they were seen as something quite different from marriage. For instance, in Sparta homosexuality was widespread--the men didn't even live with their wives--but they *had* wives. The purpose of marriage was to create and raise legitimate children; other sexual relationships might be acceptable and even more desirable, but they were different. I'd want to see some hard evidence that it was otherwise, and be sceptical as to how much was a scholar with an agenda reading modern sensibilities into ancient customs.