Time to Challenge No-Fault Divorce

High in the catalogue of social pathologies afflicting marriage and the family in America stands our system of family law, the central purpose of which is to enforce no-fault divorce. In a letter to the Holy Father and the recent Extraordinary Synod on the Family, almost fifty international scholars and religious leaders joined us in urging the Church to consider the effects of no-fault divorce, along with other barriers to faithful, lifelong marriage.

State laws on divorce began to be implemented in the late 1960s, but today have been absorbed into the legal and cultural mainstream nationwide. The logic of no-fault divorce is that spouses should not be trapped in marriages that make them unhappy, or forced into the expense and psychological trauma of proving “fault” in divorce court. If one spouse wants out, the judge’s mandate is to manage the breakup of the family and to protect the interests of the children.

Like the increase in abortions after Roe v. Wade, divorce rates increased significantly with the onset of the policy. As with Roe, there were other contributing factors, especially the sexual revolution, which multiplied the “liberating” effects of the new legal regime. The clear losers in both were children—aborted in ever increasing numbers after Roe, and wounded socially, economically, and spiritually in the wake of no-fault divorce.

The other casualties, far less studied, have been abandoned spouses, the institution of marriage, and American society itself. A dearth of transparency and accountability within family courts, and a consequent lack of data, have discouraged the study of causal connections between no-fault divorce and its effects on women, rates of cohabitation, and rates of out of wedlock births.

For example, the laws were intended to achieve consensual divorce for those in “unhappy” marriages who agreed that they wanted to move on. But some 80 percent of divorce filings are initiated by one spouse, not both, and the majority of divorces today occur in marriages not characterized by serious conflict. The most common reasons cited for divorce are problems that affect most marriages, such as “growing apart” and “not being able to talk together.” And, as anyone who has observed a unilateral divorce proceeding knows, the process is anything but consensual. Abandoned spouses are simply left in the lurch. If one spouse decides to move on, there is very little the other can do to stop it. In America, the only contract that is utterly unenforceable in law is marriage.

It seems highly likely that no-fault divorce has, over time, undermined the success of the majority of marriages in this country—that is, normal, non-abusive marriages. Divorce rates have continued to rise over the past few decades among men and women in their fifties and sixties, while young adults appear to be rejecting, or at least postponing, marriage in favor of cohabitation. Adult children of divorce who do marry are at significantly higher risk of divorce themselves, compared to children from intact families. And so the cycle continues.

Although some have tried, few political leaders, liberal or conservative, are willing to challenge these laws, now deeply embedded in the American understanding of personal freedom. When reform does come, it tends to target financial equity among divorcing spouses, not the behavior that harms spouses and children, economically, morally and spiritually, such as abandoning a spouse for an affair partner. This is unfortunate. It is the moral and religious, not financial, dimensions of most divorces—for example, the clear lessons learned by children about commitment—that underlie its transmission from one generation to the next. As C. S. Lewis observed, “You can’t get second things by putting them first. You get second things only by putting first things first.” When gauging the health of marriage and family life, finances, while important, are necessarily secondary to moral integrity and virtue. This explains why even the poorest among us are able to sustain loving, faithful, and permanent marriages.

One of the proposals we make in our letter to the Synod is that the Church help organize a consortium of attorneys and legislators (mental health professionals might be added to this list) to defend those who are divorced against their will, and who remain committed to the marriage even after a civil divorce. Such men and women are at an extreme disadvantage when facing the family law bureaucracy created by no-fault divorce—judges, mediators, “parenting coordinators,” and court-appointed “counselors” who view them as maladjusted and troublesome because they are religious, and because they won’t just “move on.”

Officials frequently refuse to consider moral or religious factors in deciding the fate of children whose parents are divorcing, or the views of a spouse who seeks to save a marriage, keep the children in a religious school, or prevent an abandoning spouse from exposing the children to an unmarried sexual partner. Many of these questions should be considered under the heading of religious freedom.

While it is difficult to identify with precision all the forces at work in the secularist divorce industry, at least two seem reasonably clear. First, family judges are part of the culture at large—many are divorced themselves and view “moving on” to new sexual relationships as a necessary, healthy outcome of divorce. Second, many bureaucrats have embraced the “privatization” school of religious liberty, i.e., that public manifestations of religion are dangerous to society and, ipso facto, to marriage and the family. Like federal Judge Vaughan Walker, who overturned the California Prop 8 decision establishing marriage as a union of one man and one woman, they see religious and moral justifications for public policy as irrational and unconstitutional.

Earlier this month in Rome Pope Francis observed that “[w]e now live in a culture of the temporary, in which more and more people are simply giving up on marriage as a public commitment. This revolution in manners and morals has often flown the flag of freedom, but in fact it has brought spiritual and material devastation to countless human beings, especially the poorest and most vulnerable.” As one of few remaining institutions that values the permanence and fidelity of the marriage vow, the Catholic Church has a strong interest in investigating violations of religious freedom in our family courts, and the implications of these abuses for generations of Catholic marriages and families. It should get in this fight, and soon.

Thomas F. Farr is Visiting Associate Professor and Director, The Religious Freedom Project, Georgetown University. Dr. Hilary Towers is a developmental psychologist.