Divorce: a proposal

[Michael deHaven Newsom]

A very interesting idea indeed!  There are some problems with it,
however, such as how to ensure that there was something resembling
equality of bargaining position between the parties.  But the idea of a
three party agreement, or something like that, at least forces us to
think about the liberal view we take, for better of worse, to the right
to marry.  Requiring couples intent on marrying to jump through a few
hoops strikes me as a good idea.  Having to negotiate a contract
regarding the terms for ending a marriage is one such hoop.

But I also wonder about another "taboo" -- the ability to raise children
at least reasonably well.  I would never suggest that prospective couples
demonstrate a minimum level of parenting skills, at least as a matter of
civil law in any direct sense.  But what if religious groups, the "third
parties" to these agreements, were to impose, on their own, a requirement
that the couple demonstrate some minimum level of parenting skills.  What
if psychological profiles were to be insisted upon?

I am not personally familiar with the kind of counseling that
clergypeople provide prospective couples.  But it does seem to me, to
piggy-back on McConnell's proposal, that here is an area or subject that
could well use some thought and reflection.


Michael deHaven Newsom
Howard University School of Law

Michael McConnell wrote:

> Since we are on the subject of divorce, let me float a general
> proposal for reform that I have been thinking about.
>
> The idea is that at the time of marriage, the couple will be required
> to specify what they mean by it, which is to say, they will specify
> the rules under which the marriage can be terminated. If they want no
> fault divorce, fine. If they want "covenant marriage" (along the
> Louisiana lines), fine. If they want to conform to Roman Catholic (or
> Jewish) or any other religious law. The state would then enforce the
> marriage according to its terms, as a matter of private law
> (contract), with an escape hatch for truly compelling circumstances
> (such as abuse).
>
> Here is the argument for it: In our liberal society, we may no longer
> have the practical ability (or the right) to impose a strict view of
> the obligations of society on people who do not desire it. But the
> effect of easy divorce is to deny to everyone -- including those who
> would prefer a stronger commitment -- the ability to form and enforce
> that kind of contract. (To Emily H. and others: I certainly do not
> mean that marriage is *only* a contract; it is much more; but in the
> eyes of the state it is at least a contract.) There is no problem
> with a liberal society allowing people to take obligations upon
> themselves, and enforcing those obligations.
>
> In practice, I would expect the real "work" of administering such a
> system to devolve upon churches and other civil associations. I would
> expect that some (maybe most) churches and synagogues would take the
> position that they would not allow a couple to be married in their
> institution unless that couple was willing to specify that the
> marriage would be in accordance with the religious understanding of
> that institution. Thus, in the case of Roman Catholics, priests would
> not marry couples in church unless they agreed that the marriage
> could be dissolved only in accordance with the canon law applicable
> to annulment. My expectation would be that most Protestant churches
> would devise a somewhat less strict, but nonetheless serious,
> procedure by which to ensure that the grounds for divorce were
> substantial and that all parties were being treated fairly. The great
> advantage of such a system is that these church procedures, being the
> result of voluntary agreement, could be more intrusive and could
> insist upon a more substantive standard of justice than the liberal
> state is capable of providing.
>
> Any reactions?
>
> -- Michael McConnell (U of Utah)