Why are Americans fighting over no-fault divorce? Maybe they can’t agree what marriage is for

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Why are Americans fighting over no-fault divorce? Maybe they can’t agree what marriage is for

Credit: Pixabay/CC0 Public Domain

“First comes love, then comes marriage”—so goes the classic children’s rhyme. But not everyone agrees. Increasingly, the idea that love is the most important reason to marry—or at least to stay married—is under *******. *********** pundits and lawmakers have been pushing back on the availability of no-fault divorce, challenging the idea that not being in love is a valid reason to end a marriage.

Speaking as a

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, I know such views aren’t new. Zsa Zsa Gabor

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, “Getting divorced just because you don’t love a man is almost as silly as getting married just because you do.” But while Gabor was probably joking, the *********** ******* on divorce is serious.

A history of ********* divorce

For most of U.S. history, getting a divorce was difficult. Many states

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, while others permitted it only under limited circumstances—typically

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. Unhappily married couples who couldn’t prove such “faults” were effectively stuck.

Then, in 1969, California became the first state to

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—meaning that a spouse could get a divorce simply by asking for it, without having to prove that their partner had done something wrong first.

After California enacted no-fault divorce, the rest of the states quickly followed. By 1977, 47 states permitted no-fault divorce, and by 1985,

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.

But now, nearly 50 years later, no-fault divorce is under increasing *******.

The issue gained

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in 2023, when Steven Crowder, a ************* commentator who prides himself on his “provocative” views, expressed outrage and disbelief that his wife could divorce him without his consent.

Crowder isn’t alone in such criticisms: Divorce has become a hot topic among many red-state *********** lawmakers. Most recently, in January 2024, Oklahoma lawmaker Dusty Deevers proposed a bill to

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and suggested

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of spouses who commit marital fault and then divorce. Restricting no-fault divorce is also part of both the

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and

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*********** Party platforms, and was

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by Louisiana lawmakers.

The ability to divorce regardless of what the other party wants is the essence of no-fault divorce. I think it’s alarming that it’s under *******. Nevertheless, the idea that not being in love is a valid reason to divorce is an assumption that should be questioned. It’s based on the idea that love is the purpose of marriage, and that itself is debatable.

Oklahoma’s KFOR reports on a proposal to end no-fault divorce in the state.

What’s marriage for, anyway?

Marriage is a legal status that confers important rights and benefits on the married, and these rights and benefits

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. In fact, the purpose of these advantages is to give couples non-love reasons to marry. The idea is that the social benefits of marriage are so significant that incentivizing marriage, or even flat-out

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, is justified.

For an example of this kind of cost-benefit analysis, consider the policy debate over whether children are better off being raised by two married parents. In her recent book “

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,” economics professor Melissa Kearney argues that this advantage is significant and wide-ranging. Not surprisingly, Kearney’s work was

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and has reinvigorated

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.

If children do better when raised by married parents, it’s understandable that the government would enact laws and policies to promote marriage. It also explains why the government might seek to limit divorce. This is a purely instrumental view of marriage, and one that would have been

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.

For most of U.S. history, marriage was unabashedly transactional. Laws

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that most men and women would wed; love had nothing to do with it.

Striking a ‘marital bargain’

Historians refer to marrying for legal and economic benefits as the “

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.” However, in the late 19th century, acceptance of the transactional nature of the marital bargain began to wane, and publicly, men and women began to declare that

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. As historian Nancy Cott writes in her book “

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,” by the turn of the 20th century, ********* culture had “put love and money on opposite sides of the street.”

My book, “

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,” also explores this history and shows how Americans went from encouraging the marital bargain to viewing it as harmful, both to couples and to the institution of marriage as a whole.

Despite the public view that love is the only reason to marry, the law takes a more practical approach, recognizing that love alone may not be enough to get couples to the altar. That’s why it continues to encourage marriage for instrumental reasons, with

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.

When marriage was a clear bargain for exchange, the benefits of the union were obvious. Like the 19th-century marital advertisement “

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,” each side knew exactly what they were getting. Now, the purpose of marriage is less clear. I believe the move to eliminate no-fault divorce is simply the latest symptom of this confusion regarding the goals of marriage.

If marriage is about love, then a lack of love should be the quintessential reason to divorce. However, if marriage is a contract for benefits, then it isn’t surprising that Crowder and other no-fault critics are outraged that it can be unilaterally broken. Although the push to eliminate no-fault divorce is presented as a ****** over the purpose of divorce, it’s really a ****** over the meaning of marriage.

Provided by
The Conversation

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Why are Americans fighting over no-fault divorce? Maybe they can’t agree what marriage is for (2024, March 21)
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