A Marriage Contract Should Still Be a Contract

by Carrie Lukas

It’s rare that I write on the same side as someone from NOW, but on the issue no-fault divorce, NOW’s New York chapter is on the right side, if not for entirely the right reasons. New York State is considering adopting no fault divorce, which will allow either party to a marriage to initiate a divorce without claiming that their spouse has broken the marriage contract. The New York Times had a debate on the subject that included this from Marcia Pappas, the president of NOW’s New York chapter:

Under “divorce on demand” legislation sponsored by Senator Ruth Hassell-Thompson and Assemblyman Jonathan Bing, either party can go into court, say the marriage has broken down, and get a divorce — no grounds are necessary. Approximately 95 percent of divorce cases in New York are resolved by the parties themselves, not by the judge, without going to court. This is the best possible process.

No-fault takes away any bargaining leverage the non-moneyed spouse has. Currently she can say, “If you want a divorce I’ll agree, but you have to work out a fair agreement.”…

We must look at the socioeconomic standing of women in our society. Women clearly continue to be the non- or lesser moneyed spouse, as women continue to give up careers and financial independence for the role of housewife and mother. For this reason alone we must look closely at how divorce affects the lives of women and children and the role that the state should play to ensure that homemakers and children not be left destitute after divorce.

NOW focuses on the issue from the perspective of women, their “socioeconomic status” and greater vulnerability. That’s important, but it misses the broader principle, which is the freedom to contract.

Marriage should be a contract like any other, with terms that are respected by the legal system. When the state decides that fault need not be considered in a divorce, it is changing the terms of marriage for everyone who is married and for those considering marriage. It reduces the ability of a couple to specialize and to consider themselves a true team (one person sacrificing personal earning potential for the good of the family unit, for example).

Writing in U.S. News and World Report, Bonnie Erbe misses this point entirely when she criticizes NOW’s statement, saying: “I must say, I disagree with this approach. The longer we mollycoddle women, the less well women are going to fare economically. Women must realize that marriage is an economic partnership as well as a romantic one, and if women want to give up working to stay home to raise children, they are also giving up their financial futures as well.”

But it’s because marriage is an “economic partnership” that women shouldn’t be “giving up their financial futures” when they stay home with young children. That legal partnership is supposed to make women (or men) feel safe in the decision to sacrifice their personal earnings for the good of the family unit. Enforcing a contract isn’t “mollycoddling” women; it’s the way the legal system is supposed to work.

That’s the fundamental problem with no fault divorce, in which one party can opt out of the marriage contract, for whatever reason, or no reason at all, without penalty: it makes the marriage contract effectively no contract at all.

People wonder why marriage as an institution is in trouble. One reason could be that the legal system has devalued the marriage contract and made marriage a less attractive institution.

Carrie Lukas is vice president and director of policy at the Independent Women’s Forum.

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