Does No-Fault Divorce Threaten the Institution of Marriage?
Despite New York State’s recognition of no-fault divorce, as well as its widespread acceptance throughout the United States, no-fault divorce has been the subject of much controversy and debate. Many critics of no-fault divorce argue that it essentially increases divorce rates, thereby threatening the institution of marriage. The central issue in this highly political debate is whether the protection of marriage as a social and legal institution ought to be valued more than an individual’s right to dissolve his or her marriage with relative ease.
No-Fault Introduced in ‘70s to Eliminate Conflict, Perjury
The widespread introduction of no-fault divorce to state legislatures began in the 1970s and 1980s. Supporters of the proposed legislation suggested that divorce based on no-fault grounds would eliminate conflict between spouses, as blame for marital issues would no longer have to be assigned to a specific party. Additionally, no-fault divorce would serve to eradicate illegal activity, i.e. parties committing perjury for the purposes of obtaining a divorce.
Opponents Argue No-Fault Divorce Undermines Marriage Contract
While no-fault divorce has undoubtedly alleviated these issues, opponents argue that no-fault divorce has led to the deterioration of marriage as a legal institution. While marriage was traditionally viewed as a binding contract in the form of a lifetime commitment between two parties, no-fault divorce has made that commitment easily revocable. Under this premise, critics argue that marriage can hardly be considered a legal contract anymore, as no-fault divorce renders that contract largely unenforceable. This paradox of a fully revocable contract seems to diminish the legitimacy of marriage.
Divorce Rates Rise After No-Fault Divorce Implementation
Critics point to a significant rise in divorce rates following the implementation of no-fault divorce laws in various states to emphasize this point. Many find that the ability to obtain a quick and easy divorce, which also neglects to reprimand either party for any potential wrongdoing has unquestionably weakened marriages in contemporary American society.
Proponents of no-fault divorce have argued that there is no correlation between the acceptance of no-fault divorce laws and the rise in divorce rates. However, recent research suggests that no-fault divorce is responsible for a 15-25 percent increase in divorce rates since the 1970’s. Maggie Gallagher, End No-Fault Divorce? 75 First Things 24 (1997). Advocates of no-fault divorce who have come to terms with these statistics argue that the restoration of fault-based grounds for divorce would pose an even bigger threat to society from a moral and legal standpoint.
Proponents Argue Revoking No-Fault Divorce will Prolong Litigation, Prevent Justified Divorce, Threaten Children
An argument against the reimplementation of fault-based grounds in many states is that establishing fault will deter the dissolution of marriages that should very well be ended. For example, marriages that involve domestic violence may continue by virtue of the difficulty associated with obtaining a divorce. Moreover, establishing fault in divorce would prolong the litigation process, inviting more conflict between the parties. Intensified marital discord in an already contentious divorce could pose a potential threat to any children involved in the proceedings.
Would Revoking No-Fault Divorce Restrict Personal Freedom?
In addition to this argument is the assertion that doing away with no-fault divorce would revoke the fundamental rights of individuals to make personal decisions regarding marital relationships. Only extending divorce on fault-based grounds places a great deal of legal power in the hands of the state in determining when and whether a divorce should be granted. Advocates of fault-based grounds argue, however, that divorces should not be granted so freely in order to encourage couples to at least attempt to resolve their issues before seeking dissolution of their marriages.
No-Fault Divorce Reflects the Evolution of the Contemporary American Family
What this argument fails to take into consideration in the debate surrounding no-fault divorce is the evolution of the contemporary American family. While fault-based grounds may have been considered the appropriate legal standard prior to the introduction of no-fault divorce, we recognize that times have changed and so have our cultural values. No longer are we a society that stigmatizes failed relationships or overly emphasizes the importance of maintaining “the perfect marriage”. It is virtually impossible to paint a portrait of what the typical American family looks like in this day and age. Resorting to the re-establishment of fault-based grounds for divorce would effectually force individuals to conform to what was once considered to be a social norm, but is no longer today.
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