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This blog is maintained by the Ruth Institute. It provides a place for our Circle of Experts to express themselves. This is where the scholars, experts, students and followers of the Ruth Institute engage in constructive dialogue about the issues surrounding the Sexual Revolution. We discuss public policy, social practices, legal doctrines and much more.
by Ruth Institute Circle of Experts Member, Bill Duncan
This article was first published Nov. 21, 2018, at News Max.
The U.S. Supreme Court does not often address divorce. In 1992, the Court specified that the federal courts do not have authority to rule on most divorce cases since the Court’s jurisdiction required a dispute between citizens of different states.
This is not say that the Court has never discussed it, though, because it has and those instances are very instructive.
In 1888, Justice Stephen J. Field (who had been appointed to the Court by Abraham Lincoln) wrote an opinion in a dispute over the ownership of a land grant in Oregon. Although not required to decide the case, Justice Field described the nature of marriage (and, by implication, the nature of divorce): “it is something more than a mere contract. The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities.”
In this case, the Court upheld the validity of the divorce in Oregon, holding that the legislature had the authority to grant divorces and, despite some misgivings about the behavior of the ex-husband in the case. This might seem curious to modern readers who are used to divorces in the court system, but this was not always the case.
The United States did not really inherit a practice for granting divorce from England where divorce was rare, granted by Parliament, and most would either have to be granted an annulment or a legal separation. Some of the states adopted the English approach, others allowed courts to grant divorces and others reserved grants of divorce to the legislature. By the end of the Nineteenth Century, legislative divorce had essentially disappeared, but the legislature provided clear standards for the courts considering a petition to divorce.
As a legal historian has noted, these statutes “were never simple, facilitative laws.” Rather, they specified that a spouse would have to demonstrate that there were serious grounds to justify a court in granting the divorce, such as adultery or abuse.
This is consistent with the rationale for legal divorce recognized in the earliest Supreme Court opinion to mention the topic.
In that 1819 case, Chief Justice John Marshall argued that legislative power to grant divorces only allowed an injured spouse to be leave the marriage because the marriage agreement “has been broken by the other.” Crucially, the opinion continues: “When any state legislature shall pass an act annulling all marriage contracts, or allowing either party to annul it, without the consent of the other, it will be time enough to inquire, whether such an act be constitutional.”
Eventually, though, states began to do just that, to allow one party to end the marriage without the consent of the other. This occurred through the no-fault divorce revolution. Now, if one of the spouses wants a divorce, that divorce will be granted even if the other objects and even if there is no serious fault alleged. It is not just that this kind of “no fault” divorce is allowed, it is the formal or de facto law of divorce in every state.
Now divorce is not a legislative or judicial proceeding as much as an administrative procedure, a mere clerical process where a court always says yes as long as someone asks and then the dispute shifts to splitting up property and child custody.
This is a drastic development given the multiple interests affected. Divorce implicates religious considerations for the parties, property rights, time with children, and on and on. A spouse may lose their opportunity to repair a relationship, may lose the ability to live with their children, may have to pay support to a former spouse when they did nothing to end the relationship, may have to sell their home, and much more, all without a finding that they did anything wrong.
This is a matter of simple justice and it corrodes the perception of fairness in our court system. The law must again recognize that marriage is “more than mere contract.” At the very least, a unilateral divorce should not be granted on no-fault grounds. The spouse who objects deserves a fair hearing. That is simple fairness.
Bill Duncan is director of the Center for Family and Society at Sutherland Institute in Salt Lake City, Utah. To read more of his reports — Click Here Now.