To serve its social function, marriage must include the elements of complementarity (both a husband and wife), permanence and fidelity. When the law allows for divorce with little or no consideration of the consequences for society, the spouse, and their children, it weakens the element of permanence in marriage.
The laws of the United States have long allowed for divorces in exceptional circumstances, such as abuse of a spouse or children, abandonment or adultery. In 1969, however, California launched a social experiment to make divorce available solely because it is requested by one spouse. This no-fault divorce law required courts no longer to inquire into the reasons for ending a marriage and make a determination of whether a divorce was justified by the fault of one of the parties. In subsequent decades, all the other states have acquiesced in this revolution by adopting no-fault laws. Utah was one of the later states, adopting no-fault divorce in 1987.
Previous to the no-fault divorce revolution, the spouse seeking a divorce had to show that the other spouse had engaged in behavior that destroyed the marriage, so divorces would not be sought or granted with impunity. Divorce is now unilateral and can be ended for trivial reasons or for no substantive reason at all. This places the state on the side of the spouse who wants out of a marriage without responsibility and severely undercuts the spouse who may be willing to make the marriage work. This is fundamentally unjust.
Utah law should be reformed to treat the decision to divorce as morally serious. In alimony determinations, custody awards and ultimately divorce itself, the courts should be allowed to consider the misbehavior of spouses. Doing so is a step toward strengthening marriage and restoring justice and common-sense to the state’s family law.
Brief: Gambling Away Marriage in Utah
Book: Second Chances: A Proposal to Reduce Unnecessary Divorce
Journal Article: Does Divorce Law Affect the Divorce Rate?