Those who have sought to change these laws have often reasoned that a marriage, or the destruction of it, is a personal and private matter, and as such, has no effect on the body politic as a whole, and is therefore not properly an object of interest for the political process.
But they have reasoned wrongly: although a personal matter, divorce is not a private affair. It impacts society and economy. The effects touch many lives - people who knew neither husband nor wife in the case will bear some of the burden.
In an attempt which may have been well-intentioned, changes in divorce laws were introduced to make the process more humane. It was apparent that divorce proceedings in court were painful, complex, and sometimes ethically questionable. To this end, a series of laws were introduced under the heading of 'no-fault' divorce. The Washington Times reports:
One reason was that, in a fault system, a divorce required at least one spouse to prove that the other had committed adultery, abandonment or abuse. This meant hiring a private detective and/or collecting incriminating evidence for the court.
Or - and this happened far too often - couples who both wanted the divorce had to resort to manufacturing evidence - faking abandonment, for instance. This kind of fraud insulted the court, legal professionals complained.
And then there were the genuinely ugly divorces, in which both spouses hurled blame and evidence at each other. Everyone suffered, including the children.
Thus, the noble purpose of no-fault divorce was to remove the contentious, annoying legal requirement for couples to prove anything other than their desire to divorce. After all, the thinking went, if marriage was the union of two people, and one person wanted out, then the union was no longer viable.
Or so it seemed. But there were serious errors in this attempt to humanize the divorce process. First, there was an underlying assumption that it can be humanized; divorce is, in fact, a necessarily unpleasant thing. Even in those rare cases when it might be the morally correct thing to do, it cannot be anything but painful. On a deeply philosophical level, this corresponds to the notion that there is such a thing as a necessary evil. On a common-sense level, it is plain that any effort to re-arrange a family structure involves the disassembly of a human fabric, which is sorrowful, even if that fabric is to be eventually reconstructed into a better pattern.
Instead of making divorce humane - which it can never be - the batch of 'no-fault' divorce laws increased social disintegration and personal emotional pain by increasing the divorce rate:
“The key to understanding the problem is to recognize that the grounds for divorce did not go from fault to no-fault; they went from mutual consent to unilateral,” said Allen Parkman, University of New Mexico economics professor and author of books on divorce.
Under the fault system, “most divorces were negotiated and eventually [happened] based on mutual consent,” Mr. Parkman said. But once one person could legally end the marriage, “there was no longer any need for negotiations.”
Although divorce is a personal matter, it is not a private matter. The personal events have consequences for the entire community.
According to “Stolen Vows,” a 2002 book by Judy Parejko, the California lawmaker (James A. Hayes) who championed no-fault divorce was embroiled in a bitter divorce from his stay-at-home wife and mother of his four children. Removing fault didn’t help Mr. Hayes in his divorce, but it certainly crushed the “negotiating power” of other stay-at-home wives, Ms. Parejko wrote.
With the introduction of unilateral divorce proceedings, any incentive for a spouse to re-think his or her desire for a divorce was weakened. This leaves all spouses, and all marriages, in a riskier environment.
With marriages at risk, the economy is at risk, and with societal fabric lacking integration, the political process lacks integration. Just as divorce was one of many complex factors which weakened the Roman Empire, so it is also weakening America.