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Rescuing marriage from no-fault divorce

Two out of three unhappily married adults who stayed together were happily married five years later.
William West | 12 March 2012

 

Over the past few decades, the institution of marriage has been undermined on almost every front, so much so that you might wonder why homosexuals would want a right to it. After all, one of the key attractions of the marriage contract has been its permanence – the commitment to life-long support which benefits not only the partners of the marriage but any children who come along. That this aspect of marriage has been in radical decline over recent decades is due at least in part to the spread of “no-fault divorce”.

In fact, the trend towards temporary marriages has been so profound that it has moved one government official – a city councillor from Mexico City – to formally propose “temporary marriage licenses”.

Among those who support the traditional concept of marriage there has been plenty of rhetoric in defence of the concept, but little has been done to come up with practical measures to shore up the institution. Now one organisation – the Institute of Marriage and Family Canada – is trying to change that with the report “Finding fault with no-fault divorce”. The report seeks not only to analyse the damage done by easy divorce, but to make concrete proposals to help rescue marriage.

On easy divorce, it says:

The shift from “fault” to “no-fault” divorce ultimately created a dynamic whereby one unhappy spouse who wanted out - for any reason or no reason at all - could unilaterally do so simply by moving out, be it two months or two years in. The end result is that we speak idealistic words (“till death do us part”) on our wedding days, knowing full well that when the going gets tough, we can - and do - get going.

In most countries that have adopted no-fault divorce, marriages have been failing at a disturbing rate. In Canada, for instance, it is estimated that around 40 percent of marriages that took place in the year 2008 will have ended in divorce by 2035. In Australia the rate is around one in three. But there is a glimmer of hope for the newly wed. The IMFC report highlights the fact that in most failing marriages, at least one of the partners will be in favour of trying to salvage the marriage. It also points out that around 85 to 90 per cent of divorces are in the category of “low-conflict divorce” and that among these, two out of three “unhappily married adults” who manage to avoid divorce or separation end up describing themselves as “happily married” five years later.

Given these facts, the report argues that taking steps to save marriages should be considered as “at least as viable an option” as proceeding with divorce. This view is supported by the Institute for American Values, which argues that “unhappy marriages are less common than unhappy spouses”. This is because its own research indicates that three out of four “unhappily married adults” are married to someone who is happy with the marriage. The IMFC concludes: “If divorce is pushed by one unhappy spouse, whose partner is happy - which, in a low conflict marriage means they have just as great a chance of being happily married five years later – then unilateral divorce simply makes it easy for the one unhappy partner to leave without explanation or negotiation.”

Similar concerns about no-fault divorce have been expressed by Professor Douglas W. Allen, Burnaby Mountain Professor of Economics at Simon Fraser University, in Vancouver, British Columbia. Professor Allen asserts that one of the strengths of traditional marriage is that it tends to “mitigate bad behaviour”, and that allowing individuals to unilaterally abandon their marital responsibilities has led to a lot of bad behaviour:

In the 1960s debate, no one thought the divorce rate would change, but it changed enormously and led to a divorce culture. No one thought there would be changes to labor force participation, hours worked, violence against spouses, suicide rates for children, and on and on. And yet, changes to these things are linked to no-fault divorce.The no-fault divorce experiment proves that marriage is an institution designed with a purpose, and therefore, further changes to accommodate same sex couples will also have consequences. As in the 1960s we're probably unable to predict what they all will be, but they will come nonetheless.

The IMFC agrees that the impact of easy divorce has been profound. It says the sorts of problems that normally lead to divorce nowadays are so common that if everyone who was married acted on them we would end up with a “100 per cent divorce rate”. The harms created by no-fault divorce, it says, now far outweigh the benefit that it offers in the “small minority of cases where one partner was being abused”. Among those harms are increased poverty, particularly for single mothers, the profound suffering experienced by the children of divorce, and the inestimable impact of divorce on society as a whole.

So what can be done? The report makes it clear that we cannot hope for a single solution to achieve “strong, permanent marriages”, but that many steps must be taken to support married couples, and that this should start well before marital problems begin, with the early education of children:

Surveys of kids in high schools show that the vast majority want to get married. So early education is a must. Children and teenagers need to be taught all the positive features of marriage, so they can realize that it involves both joy and hard work and, more importantly, remains the best way to raise children.

The report also calls for pre-marital counselling to be “strengthened and broadened beyond religious communities”, where most pre-marital counselling currently takes place, so that all couples can benefit. It suggests that counselling in religious settings could also be improved as few religious leaders at present have actual training in counselling. “Counselling,” it says, “should look toward restoration and reconciliation as a plausible first option -- again, in low-conflict marriages.”

It also supports marriage mentoring programs to help young married couples learn from those who have “weathered storms ahead of them”. It explains: “While divorce is very commonplace and problems in marriage are ubiquitous, we fail to address those problems. One of these is a lack of community - something marriage mentors might attempt to address.”

As for the temptation to try to re-introduce fault as a ground for divorce proceedings, the report warns this would be an “uphill road”. Instead, it advocates helping couples to rediscover the great “attractiveness” of permanent marriage as something worth dedicating your life to. It argues that given the true value of traditional marriage, this should not be too hard a task to carry out.

Finally, the report backs “non-legal solutions” first proposed by the Institute for American Values in a report titled “Second Chances: A Proposal to Reduce Unnecessary Divorce”. These solutions include the concept of “notification documents” which would allow one partner in a marriage to inform the other partner of serious problems in the marriage. This approach, it argues, could help avoid the “first treacherous step” into the legal system and, ultimately it might help avoid divorce: by making one or both partners aware of the possibility of reconciliation it could stop the rot from setting in and help them to reflect on the fact that divorce “does not bring greater happiness”.

Summing up, the Canadian report says the fact that marriage survives at all “after the vicious assault of the past decades on the institution” is testimony to the desires of individuals to be in true, lasting partnership with one another.

In spite of years of feminist rhetoric that women are better off without men, in spite of the movement of the culture away from community and toward individualism, marriage still stands. We need to remind people how to live it - through good times and bad, ‘till death do us part,’ just as the vows say, once again.”

No doubt children who have suffered the pain of their parents’ divorce would say Amen to that.

William West is a Sydney journalist and editor of Perspective magazine.

MORE ON THESE TOPICS | divorce, happiness, marriage education
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