Marital Contracts

Should husbands and wives be granted a "no-fault" divorce—even if their marital faults are legion? Phyllis Witcher of Pennsylvania says an emphatic "no." Her own husband deserted Phyllis after 25 years of marriage. He wanted a "no-fault" divorce from her, even though, according to Phyllis, he'd committed adultery and physically abused her. So Phyllis filed a counterclaim on fault grounds. She believes it's a violation of her due-process rights for Pennsylvania law to force her to accept a "no-fault" divorce that would give her husband the right to demand half the family's assets. But Phyllis also wants to know why her husband should receive an equal share of their assets when he alone flouted the terms of their marriage agreement. Phyllis is asking the U.S. Supreme Court to decide whether or not her husband ought to suffer the consequences of breaking his marital agreement—just as he would if he broke any other legal agreement. And she's seeking to have Pennsylvania's mandatory "no-fault" divorce law declared unconstitutional. Once upon a time, most Americans expected to suffer the consequences of marital misdeeds. Our laws reflected the biblical teaching that marriage is a covenant between two people—an agreement whose terms protected the interests of both husband and wife. For example, a man knew that if he abandoned his wife, he'd have to leave his home to his family and pay child support and alimony. And wives faced grave consequences if they ran off with another man. But all that changed in the 1970s. That's when states began passing "no-fault" divorce laws. As Larry Huff of the Family Research Council puts it, "no-fault" divorce has turned the marriage "covenant" into a "testament"—a one-sided transaction whose terms serve the wishes of only one of the parties. The result is that the marriage covenant, with its noble clauses about sticking together "for better or for worse, in sickness and in health," isn't worth the paper it's written on. Today no other contract can be broken so easily. Yet innocent spouses and children suffer when the offending spouse forces the sale of the family home and takes off with half the proceeds. Isn't it ironic—and tragic—that at the same time we're finally recognizing the importance of healthy marriages to a healthy society, our courts are treating marriage contracts in such a cavalier manner? Bryce Christensen, director of the Rockford Institute's Center on the Family in America, points out that today it's much harder to get rid of an unwanted employee than an unwanted spouse. Why? Because an employer has to live up to the terms of his employee's contract or face legal consequences. But he can walk away from his marital contract with few repercussions. That's unjust, and people like Phyllis Witcher deserve credit for attempting to force the state to put the moral dimension back into family law. You and I ought to get behind changes in the law that would force couples to take the marriage covenant seriously. Changes that would assign the same serious consequences to broken marriage vows that apply to any other broken contract.

02/14/95