Volume 9, Issue 3: Magistralis
As this is a bridal issue, it seemed good to write about the civil government's role in marriage. That's why this article is on divorce. No bridal issue would be complete without an article on divorce. Even in our day, there is no more solemn covenant entered among men than marriage. Yet the civil government has made it the easiest covenant to break.
Prior to 1969, the law took a fairly biblical view of marriage. It was a covenant between a man and a woman to take each other as husband and wife (the biblical definition of marriage was assumed by the statutes), which could be solemnized by a judge, a magistrate, the governor, a mayor, or a "priest or minister of the gospel of any denomination." In other words, a minister of God. Annulments (making the marriage void ab initio) could only generally be granted if one of the spouses was already married, was incapable of giving consent, or if consent was obtained by fraud. Married couples could only be divorced for reasons that were considered to be violations of the covenant: adultery, extreme physical or mental cruelty, wilful desertion, the husband's negligent failure to provide for his wife, or habitual intemperance which prevents the spouse from attending to business or causes great mental anguish. These causes could not simply be asserted by a spouse. In order to obtain a divorce, the conduct had to be proven. The biblical roots of these statutes are evident. There is an amazing affinity between pre-1969 divorce laws and Chapter 24 of the Westminster Confession of Faith.
The modern concept of "no-fault" divorce has been with us less than 30 years. In 1969, then-governor of California Ronald Reagan (the great savior of the family) signed the first law taking the concept of covenant breaking out of divorce. Forty-five states followed suit within the next five years, and all 50 states currently have some type of no-fault divorce statute. While most state codes still contain the "old" causes of action, they have been rendered dead letters by the no-fault provisions.
Typically, these laws use the phrase "irreconcilable differences." Irreconcilable differences are "those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved." Obviously, this can mean anything, and that was exactly the intent of the law. Unlike the old system, a spouse need not offer any specific proof as to what the irreconcilable differences are. They simply need to be asserted, and the divorce will be granted. Even over the protestations of the other spouse.
With the advent of no-fault divorce, the marriage contract became the easiest legal contract to break. No other agreement between men could be broken with less formality or fewer legal consequences. The expressed design of no-fault divorce law was "to promote harmony and reduce fighting," particularly where children were involved (as if harmony can be increased in a process that is, by definition, inharmonious). But critics of the no-fault system counter that the actual result was an increase in the divorce rate and a casual and irresponsible attitude toward marriage and divorce. A move is currently underway in several states to repeal the no-fault statutes and return the concept of culpability to divorce.
Both sides of the debate are stacking up pragmatic arguments and waving the family values flag. The "no-faulters" claim that the statistical correlation between the divorce rate and no-fault statutes is negligible if not tenuous, that laws can't force people to stay together, that the costs of divorce will rise as spouse's spend more time litigating blame, that children will be caught in the middle of open war, and that if divorce is not readily available then people will opt to live together without matrimony rather than make a binding commitment. The "faulters" respond that no-fault laws have caused the divorce rate to skyrocket, that repealing them will encourage a greater sense of responsibility and commitment, that couples will have more incentive to work their problems out, and that the war over children rages on just as much now when deciding custody matters, and is no harder on them than the ultimate consequences of the divorce. Engaging these battles on pragmatic grounds have caused the real point of the war to be missed.
Marriage is ordained by God, not man, and we are not free to tinker with its creation or dissolution in an effort to modify it to fit our arbitrary standards of what a marriage should be. It is not primarily a loving, caring and nurturing relationship which can be had by pairings other than husband and wife, nor is it a haven for family values. It is fundamentally a picture of Christ's relationship to and interaction with His Church (Eph. 5:22-32). While that marriage can never be dissolved because its head is perfect, divorce is allowed among men because of our hardness of heart (Mark 10:2-9).
Of course no-fault divorce laws should be repealed and repented of. When the marriage covenant is broken, it is a recognition that one of the spouses has committed grievous sin. Someone really incurs moral blame. The civil magistrate, as God's minister, has a duty to require that people honor the marriage covenant as God ordained it.