The Scandal of “Unilateral Divorce”—How No-Fault Divorce Undermines Society

America’s experiment with no-fault divorce–an experiment that could well mean the virtual abolition of marriage as an institution–has produced a massive toll of cultural destruction and personal pain. Millions of marriages have been terminated, homes have been broken, and lives have been destroyed in the wake of easy divorce.

Jennifer Roback Morse, a research fellow at the Hoover Institution of Stanford University, has been tracing the effects of no-fault divorce throughout the culture. In “Why Unilateral Divorce Has No Place in a Free Society,” she argues that the nation’s high divorce rate is the direct cause or a major contributor to a vast array of social problems. Furthermore, she argues that “divorce is in the background of the same-sex marriage debate because same-sex marriage is the end of the trend that no-fault divorce began.” As she makes clear, “The legal innovation of unilateral divorce began to reduce marriage to nothing but a temporary association of individuals. If marriage is merely a free association of individuals, there is no principled reason to exclude same-sex couples, or even larger groupings of sexual partners. The permanence of marriage was one of the key features that distinguished it from an ordinary contract.”

Interestingly, Morse is out to prove that libertarians should oppose no-fault divorce. Yet, even as her argument is tilted especially toward those with a libertarian bent, her research and arguments concerning marriage should interest all Americans.

Her redefinition of no-fault divorce as “unilateral divorce” is a significant semantic game. The very fact that easy divorce, facilitated by law and virtually uncontestable in court, was labeled “no-fault” in the first place was a significant concession to the divorce culture. The revolution in America’s divorce laws has produced a situation in which one spouse may demand and cause the breakup of the marriage, even if the other spouse is committed to maintaining the relationship.

Morse understands that the libertarian bent of contemporary America plays right into the hands of those who promoted no-fault divorce. “The ‘leave us alone’ posture has been one of the most successful rhetorical moves of the advocates of the deconstruction of marriage. I believe this is because minimum government has traditionally had deep roots in the American psyche and continues to have a deep hold on the American imagination. But the redefinition of marriage is part of the left’s attempt to redefine freedom to mean a combination of having your own way and being completely unencumbered by human relationships.”

She perceptively argues that many Americans want minimal government and absolute moral freedom. As she describes this pattern, many citizens want a society that is fiscally conservative and lifestyle liberal. “It sounds good on paper,” she argues, “but in practice it simply is not possible.”

Why does marriage emerge in virtually all civilizations and cultures? This is simply a fact of history, as the various cultures of the world have found their way toward the recognition of committed heterosexual couples as the privileged unit of society. In their own way, these cultures recognize and formalize these couplings through public ceremonies and an entire network of social, legal, and relational protections.

Most significant to Morse’s argument is the fact that government is not needed in order for marriage to emerge. “Marriage is an organic, pre-political institution that emerges spontaneously from society,” she argues. Furthermore, the actual operation of marriage as an institution depends only to a very small extent upon government at all. “This culture around marriage may have some legal or governmental elements,” she acknowledges. “But in most times and places, the greater part of that cultural machinery is more informal than legal and is based more on kinship than on law.”

How does this work? “We do things this way because our parents did things this way; our friends and neighbors look at us funny if we go too far outside the norm. The formal legal and political structures provide some support and enforcement for the norms, but by far, the bulk of the daily enforcement of the social expectations about marriage takes place informally.”

Essentially, the entire logic of marriage has been reversed within postmodern American culture. “The modern alternative idea about marriage is that society does not need such an institution,” Morse explains. Accordingly, “no particular arrangement should be legally or culturally privileged as the ideal context for sex or childbearing.” As she sees it, this simply and necessarily means the end of marriage. When marriage disappears, it is replaced by “a legalistic concept of a bundle of benefits granted by the state.” Of course, this is no lasting substitute.

This new legalistic concept, understood to be created by the state, is simply no substitute for the informal culture of marriage.

At this point, one of Morse’s central concerns appears–where the informal culture of marriage fails, the government must step in with litigation, laws, supervision, and bureaucratic intrusion. Inevitably, this means “a disaster for the cause of limited government.”

All this is part and parcel of the entitlement society–a cultural assumption that all privileges should be equally accessible to all citizens (even if the government must mandate this access). As Morse conventionally argues, sexual activity is now considered such an entitlement. Marriage has simply been sidelined, “no longer the only socially acceptable outlet for sexual activity or for the rearing of children.” Instead, “It is now considered an unacceptable infringement on the modern person’s liberty to insist that the necessary context of sexual activity is marriage, with rights and responsibilities, both implicit and explicit. It is equally unacceptable to argue that having children outside of marriage is irresponsible. Women are entitled to have as many children as they choose in any context they choose. In this sense, children have become a kind of consumer good.”

In the case of our modern litigious culture, all of this is reduced to matters handled by the courts. Yet, the courts are stunningly inefficient and ineffective in compelling adults to behave in ways that will lead to the protection, nurture, discipline, and care of children.

In one incredibly descriptive paragraph, Morse explains why a married couple operates very differently. “No one from the state forces them to pool their incomes, if they both work. If they have the traditional gender-based division of household labor, no one forces the husband to hand over his paycheck to his wife to run the household. No one makes the wife allow him to take the kids out for the afternoon. No one has to come and supervise their negotiations over how to discipline the children. When he’s too tough, she might chew him out privately, or kick him under the table. When she lets them off the hook too easily, he might have some private signal for her to leave so that he can do what needs to be done.”

Where this informal and very natural pattern of home life is not preserved, the state must enter the picture. As always, the state enters clumsily and at great cost. Spending just a couple of hours observing a divorce court or custody hearing will be sufficient to prove the point–government simply cannot replace what the breakup of marriage destroys.

In another important section of her essay, Morse reveals that the majority of divorces are initiated by women–a fact not generally known throughout the culture. The current shape of laws and the ideological bias of feminism points women toward divorce. Morse argues that the sole custody laws, with a preference toward women, “is correlated with an increased probability of women initiating the divorce.” This is because the woman “can have the enjoyment of her children, and possibly some financial support from the father, while reducing the difficulty of negotiating with their father over the children’s care.” As she argues bluntly, women would be far less likely to initiate divorce if they lacked confidence that they would be given the custody of the couple’s children. She also argues that women often grow more frustrated with the burden of maintaining the relationship and may see a divorce as the easy way out of this emotionally-demanding challenge.

“Women need to stop seeing marriage as dispensable and men as disposable,” she asserts. Likewise, men must be led to see marriage as a life-long commitment of their highest priority.

Rebuilding a culture of marriage is no small task–especially as the cultural elites promote any number of “alternatives” to civilization’s most central institution. Nevertheless, it is a challenge we must accept, starting with our own homes, our own marriages, and our own churches. Christians understand that marriage is about far more than sociological analysis and economic considerations. Marriage is the unique arena of God’s glory in which the Creator’s love for His creatures is shown in the right ordering of the man and the woman and in the establishment of the marriage bond as the locus of sexual expression and the gift of children.

Jennifer Roback Morse offers important insights in this essay, including her relabeling of no-fault divorce as unilateral divorce. We are also indebted to her for her convincing argument that lifestyle liberalism is incompatible with a free and ordered society. Clearly, we have much work to do.

Jennifer Roback Morse’s essay, “Why Unilateral Divorce Has No Place in a Free Society,” is published in The Meaning of Marriage: Family, State, Market, and Morals, edited by Robert P. George and Jean Bethke Elshtain (Spence Publishing Company, Dallas, 2006).