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Thursday, October 3, 2013

Marriage Privatization the Answer to Fixing the Cultural Side-Effects of No-Fault Divorce

I have now come to the conclusion that the proper way to fix the cultural mess no-fault divorce has created is by marriage privatization.

No-fault divorce was legalised in many places before I was born. Originally a legal device to improve things for separating couples and decrease the risk of people being locked in situations of domestic violence, it has helped if not created a culture of easy divorce. Luckily, I come from an extended family where divorce was generally taboo during my upbringing - it wasn't the sort of thing that happens to families like ours. But divorces were happening out there, and I have long held a view that the current divorce rate is unacceptably high - by a factor of at least 50 times probably. No contract other than marriage comes with the possibility of one party just walking away from it without needing to pay appropriate compensation, and no other contract comes with an almost 1 in 2 chance of failure.

Can we, or should we, go back to the previous system we had, though? Up until around 2006 I was in favour of courts not granting divorces easily, a few years ago I instead embraced an optional covenant marriage style legislation, for a while. But it wasn't going to change things - people could still separate, for one. Covenant marriages have been quite unpopular too, and it won't be a force for change either way. Also, determining fault in marriage breakdown is rather complicated in the modern world, may lead to potentially unfair outcomes, and would generate lots of legal costs.

It is the culture of divorce that is driving the high divorce rate, I believe, and no-fault divorce has caused that, as a side effect. Whilst no-fault divorce may be a good idea for court proceedings, it has also generated the cultural idea that marriages can just end because the couple has drifted apart and are no longer attracted to each other. The truth is that, marriage is a life-long commitment, and you cannot just end it because you are no longer attracted to your partner or you find a 'more suitable' one. It shouldn't end unless you really, absolutely, cannot live with each other. People are still usually able to live with each other even when not particularly attracted to each other, unless there is violence or intimidation, or one party has committed adultery. To walk away in the absence of such absolute need is fault in itself, I believe. Whilst no-fault divorce is actually quite practical in law, in culture it is a disaster. It's just another way that putting a cultural and religious institution into the law can generate inappropriate outcomes. Marriage privatization can fix this.

The fact that marriage, if based on a marriage certificate from the government, is owned by the government and could be revoked by the government at any time, is the source of many problems. If marriage was instead owned and maintained by the couple and witnessed and helped by the community of family and friends around them, I believe things would be much better. If governments no longer own any claim on marriage, any 'no-fault' separation would just be the termination of a civil union. Whichever party was at fault of not trying their best to maintain the marriage - well, they would know it themselves, and the family and friends would know it too. And there would be no government to help soothe the guilty conscience, nor any decree from a court to make a moment of profound failure into a moment of freedom (the decree would be to dissolve the civil union - the marriage is still broken solely by the guilty party). This would definitely help end the divorce culture, I believe.