On September 4, 1969, Governor Ronald Reagan signed California’s Family Law Act—the nation’s first “no-fault” divorce statute. The law emerged from an almost decade-long research project conducted by the Governor’s Commission on the Family, which had the goal, ironically, of strengthening California’s marriages and reducing the state’s skyrocketing divorce rate. The commission’s first recommendations included several measures which might have proven effective: mandatory pre-divorce counseling, a “marriage hospital” providing various rehabilitative services, and a separate family court charged with handling divorce proceedings. In the end, however, the State Assembly reduced California’s divorce-law reform to a single provision: the elimination of “fault” as a consideration in divorce proceedings.

Before 1969, every state in America based divorce on some fault in one or the other spouse.¹ Heirs of the Christian tradition, early Americans understood marriage to be ordained by God for the benefit of the espoused and of society as a whole. As such, both the Church and the state had a vested interest in making sure marriages were not dissolved without sufficient reason. By 1969, many factors had colluded to erode that concept of marriage.² Two of them were Enlightenment libertarianism and radical feminism.

Before the Enlightenment, Western cultures understood marriage to have four different but complementary aspects: It was a covenant between two people, a spiritual association solemnized and shepherded by the Church, a social estate recognized and encouraged by the state, and a natural institution springing from the very order of human society. In the seventeenth and eighteenth centuries, Enlightenment thinkers introduced a new theology of marriage which defined it exclusively as a voluntary sexual contract between consenting adults. The essence of marriage, they argued, was neither in its natural, nor its social, nor even its spiritual aspects, but solely in the voluntary bargain struck by the parties. The terms of this bargain were not legislated by either natural law or Scripture. They were set by the parties themselves, who thus had the right to honor, amend, or revoke them as they saw fit.³ In time, these “freedom-of-contract” and “sexual privacy” notions fueled the drive for no-fault divorce laws, in which no better reason than one spouse’s claim of “irreconcilable differences” would be needed to dissolve a marriage.

With the publication of Mary Wollstonecraft’s A Vindication of the Rights of Woman in 1792, feminism was born. Though she argued for many legitimate causes, including educational reform, equal suffrage, and even the abolition of abortion, Wollstonecraft also called certain marriages a form of “legal prostitution.”⁴ By the 1960s and 1970s, Wollstonecraft’s followers had turned her polemic into an enthusiastic celebration of divorce. It was, they said, a perfectly legitimate escape for frustrated, disappointed, or adventurous women tired of being tied down by the oppressive patriarchy of their husbands. Said one writer, “Your divorce can turn out to be the very best thing that ever happened to you.”⁵ Within a few years, feminists had succeeded in making divorce-on-demand the law in all fifty states.

Years later, Ronald Reagan said he regretted signing the no-fault divorce bill—and for good reason.⁶ No-fault divorce has contributed to the dissolution in the U.S. of 40-50 percent of all first marriages and 60 percent of second marriages.⁷ Rather than bringing promised liberation, divorce leaves women 20-30 percent poorer than before marriage.⁸ Children living with divorced mothers experience a dreadful 38 percent poverty rate, compared with 11 percent for children in two-parent homes.⁹ Experts also point to the long-term emotional trauma and deficit in social skills exhibited by children of divorce. In the face of such tragedy, the Church is often alone in picking up the pieces. In addition to teaching about preventing divorce through healthy marriages, pastors can help develop a community marriage policy by building a coalition of churches who require pre-marital counseling as pre-requisite to marriage. Finally, Church representatives can support reform of divorce laws in their respective states that would make no-fault divorces illegal or more difficult to obtain. These measures just might be the first step in restoring the stability of the home.

Footnotes: