End “No Fault Divorce”

No Policy Has More Undermined The Strength of Our Civilization

There is a crisis in America. A crisis of broken homes. A crisis of broken-down castles that should be the beacon of safety and stability. They are falling to ruins. They fall because the foundation upon which they must rest is not one of mortar and stone but one of God’s uniting covenant with the man and woman, and the esteeming of this covenant is in jeopardy. They have sworn an oath to remain unshakeable, to guard and cultivate their sphere of influence, to protect and defend the next generation, and to stand as a beautiful buttress of divine architecture, as a monument not to the faithfulness of man or woman but to the faithfulness of Almighty God. The foundation has been shaken. Because of the hardness of our hearts, the castles are falling.

The Advent of the “No Fault Divorce”

In every state of these United States, family courts must decide on the interpretation of statutes regarding the dissolution of a covenant made before God to remain faithful to another person of the opposite sex for all of our lives. The statutes that exist in the states now can be defined as “No-Fault Divorce Laws” (NFDL). NFDL simply stated are laws that permit divorce to be initiated by either party for no reason or, in some cases, a cursory or ambiguous reason such as “irreconcilable differences” or incompatibility. The state ultimately dismisses all reasons except if there is a criminal allegation.

NFDL are the abolition of marital obligation, and until they are repealed, Christians cannot say that there is a right of marriage in the US, for we do not have a right when it can be arbitrarily terminated without cause by the State. Apart from prenatal homicide (abortion), many have said there is no more unjust set of laws in the U.S., none where the state does more social harm. A no-fault divorce can be initiated unilaterally, bringing the agents of the state into the marriage to sort out property, child custody, and other highly personal matters without the consent of both parties.

It has not always been this way, however. In 1969, no less than Ronald Reagan himself signed the first no-fault divorce bills into law when he served as Governor of California (Reagan later condemned this policy as the worst mistake of his political life). As the sexual revolution swept the nation, by 1974, 45 states had NFDL on the books. In addition to codifying the states’ policies about marriage law, the law served to instruct the people in morality (as all laws ultimately do). It taught that marriage was disposable, an at-will relationship, and not of foundational social value, even carrying less weight than business contracts and rental agreements. As a result of this paradigm shift, divorce rates rose a catastrophic 250% between 1960 and 1980. This was a monumental blow to America and one of the primary drivers of the ongoing collapse of Western Civilization. It is a great sin against God.

Prior to the widespread acceptance of NFDL, there were different rules on the books. You could call them FDL or “Fault Divorce Laws.” Under this system, reasons given for divorce proceedings needed to be sufficient to warrant a permanent separation and breaking of the contract. Issues between spouses, such as abuse, adultery, and abandonment, would all have been considered substantial by the court. Adultery and abandonment were, in many cases, even criminal matters, and the perpetrators could be fined or forced by the state to return home and do their duty. The old regime of FDL was arranged to ensure due process and equal treatment under the law with protections for the innocent party’s life, liberty, and property. They understood that in divorce, there could be victims, and those victims need protection and restitution. They understood that we should not normalize cheating, beating, and ill-treating. They understood that abusive acts on innocent victims are shameful. This includes the well-being of the children. Common-sense strategies to preserve the union of the spouses were taken, such as mandatory waiting periods of sometimes up to a year and even providing resources to help resolve conflicts and care for children of divorcing households.

Changing Directions

The truth of how disastrous the NFDL regime has been has become undeniable. Recently, the Texas GOP Platform, Article 214, included efforts to reform NFDL. “We urge the Legislature to rescind unilateral no-fault divorce laws, to support covenant marriage.” The plan seeks a return to more sane times when an initiating spouse must prove infidelity or abuse to obtain a divorce decree from a court. It also adds a six-month waiting period to allow heads to cool and resources to be brought to bear for reconciliation. 

Critics of the return to FDLs claim that NFDLs have made the world a safer place for people, especially women. Opponents claim that access to no-fault divorce “leads to a dramatic decrease in suicide, domestic violence, and even murders, with women being primarily the victim.” None of this is true. Fewer women were murdered before the widespread acceptance of NFDL. Male and female suicide rate has continued to rise since 2000. If our marriage rates today were like those of the 1960s, estimates are that we would see 70,000 fewer suicide attempts.

Another critique of FDLs is that they will decrease happiness for disgruntled married people needing a way out. The claim that divorce allows people to find happiness is not born out in reality. Second marriages end in divorce 67% of the time, and third marriages fail 73% of the time. Research indicates that the emotional benefits of divorce are significantly overblown and that most divorcees recognize that they have traded one set of problems for another. Those who get divorced are not significantly happier than those who remain married, even among those who report themselves to be in an “unhappy marriage.” This is compounded by the presence of children shared between the former spouses who have had their lives irreparably disrupted, and the simple logistics of getting Little Johnny to baseball practice on time becomes a shell game involving multiple households, step-parents, and siblings, which does not even address the emotional toll of a child’s parents separating.

The Toll of Rampant Divorce

When two parties enter into a binding contract, there are penalties for failing to live up to your side of the bargain, except in a marriage covenant sworn to God in front of witnesses. Yes, business contract law is more rigidly enforced in the United States than marriage under the current NFDL regime. A society that teaches and allows a marriage covenant to be less important than a business contract will reap the fruit of social upheaval, unfettered dishonesty, lawlessness, violence towards women, war on men, and expendability of children. When marriage is merely a means of self-oriented consumption, then a person’s primary obligation is not to the family but to the self. To devalue marriage is to devalue the family is to undermine the foundation of a thriving society. 

Destroying marriage is a means to remake the world. Marriage and strong families are the frontier fortifications that secure the way of life of their civilization and nation. Strong marriages and homes are the safe places that we run to when our way of life is faltering. Regressives want to deconstruct the family in order to reconstruct a society where the state is the father and the citizens are state-dependents rather than marriage dependents. Now, you know the big picture of how the state becomes the father-god, and the Creator God is cast off.

Whose Law?

To understand the role that NFDL plays in the United States, you must understand what the law is for. The use of the law in government is three-fold: First, It teaches what is a crime according to the governing authorities; second, it teaches how to live justly in that society; third, it restrains evildoing with protections for the innocent. Underlying these, the law also orients us to the god of the system, the ruling power and authority behind the law, whoever that may be.

Law always does this. It tells us who is the ultimate authority, how to live under that authority, and the consequences for failing to do so. The inescapable reality is that there is a god of every system of law. It is not whether there is a god or a morality, it is which god and whose morality we are serving and being ruled by.

Are you saying people can not divorce?

People in fallen human society will continue to divorce; furthermore, there are times when divorce is the right and proper prescription, even under the much-maligned and poorly understood biblical standard. When governing human beings, the question of how best to restrain evil and orient the people toward the common good must be considered by the magistrate. The laws of God have proven themselves to be the historically best means, and so the laws of God related to divorce should be the first place of investigation for how to codify the state’s policy on divorce.

The question is not if spouses can divorce but if they must make restitution to their offended spouse or if they are due restitution if they are the innocent party. If one spouse is guilty of abuse, abandonment, or infidelity, must they make their spouse whole again? Is an aggrieved spouse deserving of court-ordered relief? If there is no offense, can the state merely allow a party to depart without any censure because they wish to? These are the legitimate questions that the lawgivers must consider.

The Church and The State

A common cause of some confusion on the issue of divorce is when there is confusion about how different institutions must behave in a way consistent with their category. For instance, how should the state treat divorce versus how the church should react to divorce. All the above comments relate mostly to the way that the state should consider the issue and respond to it. Many church-goers may point to the incident in John chapter 8:

And early in the morning he came again into the temple, and all the people came unto him; and he sat down, and taught them. And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst, They say unto him, Master, this woman was taken in adultery, in the very act. Now Moses in the law commanded us, that such should be stoned: but what sayest thou? This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not. So when they continued asking him, he lifted up himself, and said unto them, he that is without sin among you, let him first cast a stone at her. And again he stooped down, and wrote on the ground. And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last: and Jesus was left alone, and the woman standing in the midst. When Jesus had lifted up himself, and saw none but the woman, he said unto her, Woman, where are those thine accusers? hath no man condemned thee? She said, No man, Lord. And Jesus said unto her, Neither do I condemn thee: go, and sin no more. 

This is an easy text to misapply. It is right and good for the church to welcome repentant divorcees or those who are divorced and have been wronged by their departing spouse. It is also the right thing for churches to call upon divorcees to go and sin no more if they have contributed to the marriage’s failure. But the state and the church are not the same, and they have different roles. The church does indeed have the task of helping pick up the pieces of a shattered home or holding those fragile pieces together to help spouses endure hardship and survive as a married couple. The church must use the resources they have to do this: preaching the gospel, love, emotional support, logistical support, pastoral counseling, prayer, the preaching of the Word, the administration of sacraments, and, if necessary, church discipline.

Civil authorities, on the other hand, have the task of holding those who swear a mutual oath of loyalty and permanent devotion to one another to the understanding that it was indeed mutual and permanent and that violations of the contract/covenant that victimize a spouse and children are indeed punishable. The civil authorities must do this in order to grant justice and protection to the innocent. Governing authorities must be concerned with the common good of all of society. It is the state that has to deal with many issues of the fallout of divorce, such as fatherless homes, which account for a substantial increase in crime and other societal ills that cause difficulties outside of the immediately affected parties. The state has to be concerned with the well-being of children who may have insufficient provision due to abandonment. The state must deal with the criminal issues of spousal abuse, child abuse, and bigamy (marriage fraud). The state must mete out punishment for criminal violations. It is the state that must mediate the dissolution of a contract that was never designed to be broken. The state must use its tools to do this: the law, the courts, and the enforcement apparatus.

As a legislator, I must consider this common good. I must consider justice as equal protection under the law. Law and policy must contribute to the common good for all of society and the specific justice due to the parties involved. The rights of the aggrieved party cannot be trampled upon. Can anyone really say that marriage truly exists as it should if we have the ability to simply walk away from it? The laws of divorce must be changed; there are few examples of a set of laws so unjust and that do more social harm than No-Fault Divorce.

As a pastor, it is my duty to help a struggling married couple remember the high value of their oath. The seriousness of it. It is my joy to lift up the beauty of what God designed marriage to reflect: the sacrificial and unswerving love of Christ for His Bride, the church. They have sworn before God to remain faithful until death, and to break that oath will not bring them more happiness but less. I must call them to repentance if they are in sin. I must call them to reconciliation and fellowship if they are alone and lost. I must reach them with the gospel truth of the finished work of Jesus Christ to atone for the sins of all who believe in him and to forgive one another. 

These spheres are both essential. The spiritual needs of the divorced or estranged are of eternal consequence. The social needs of the state’s policy on divorce are multigenerational in their effects and have been absolutely confirmed as a miserable failure in their current state. 

Consequences

Much has been made of the idea of “public shaming” for all parties in divorces. This is not an accurate summary of my position. Public shaming is not for all parties but to be reserved only for at-fault parties who abuse, cheat, or abandon their spouse and children. This is an important act of justice for both the transgressor and the transgressed.

Because human beings naturally understand that breaking our oaths and telling lies is a bad thing, no amount of destigmatizing or changes to the law will free a person who is frivolously filing for divorce from the shame of such an act. Divorce rates in the United States are high enough that to call divorce “normalized” is an understatement. To be divorced, in most cases, is to have to admit publicly that you have broken the covenant you swore before God and man by cheating, beating, or ill-treating your family. This is the reason why divorce usually harms a person’s credit score. You have demonstrated yourself to be less trustworthy. You cannot keep your word. We all intrinsically know this is a flaw. Even if you do not place a high value on your word, admitting that you have made such a colossal, life-altering mistake still causes many divorcees to cringe back from filing. While it may not always be fair, social stigma about having to divorce is an incentive to avoid jumping the gun on ending your marriage.

Marriage is an oath sworn in front of witnesses, and while divorce proceedings can be done mostly privately, the fact that you are no longer married is a matter of public record, it was handled in a public court, and it will generally be common knowledge within the community divorced people inhabit. It is hardly unusual to see criminal behavior punished informally by shaming. Stores often post surveillance of shoplifters, crime logs are popular newspaper columns, courtroom drama is a source of stimulating interest to many, and there are many other examples which result in the public embarrassment of criminal and civil offenders. Public shame is a historically valid and legitimate deterrent for socially detrimental behavior, and even if you oppose this practice, there is still no getting around the shame of a frivolous divorce.

The church is an invaluable resource in this regard because an innocent party is protected from the shame and isolation that can come from being perceived as unfaithful to your spouse by undergoing divorce proceedings. If a person is innocent and has been divorced against their wishes, a church is a community of people who know your innocence and will care for you, as our church has multiple times. On the other hand, a church should admonish and discipline a member who initiates an unbiblical divorce, holding them accountable socially in the way that the law ought to hold them accountable civilly, as our church has multiple times. 

The courts who are charged with resolving the issue of a divorce must declare publicly that, if a divorce is granted, the at-fault party must be declared deficient, and it must be noted on the record. This is a matter of justice for the aggrieved spouse. In the current system of NFDL, after a divorce proceeding, it is merely a matter of which spouse can spread the word of their innocence and the other’s guilt first. Let the court declare publicly, under an FDL regime, that a spouse was unfaithful, abusive, or absent so that the record can reflect by contrast the innocence of the other spouse and a lawful remedy can be required for the dereliction of marital duties. It is also just to hold the offending spouse accountable by legitimate declaration of their failure in public. This is a punishment and it is warranted by the failure of the offender to live up to the high calling of their marriage covenant.

This is by no means an unusual opinion. In 1785, the law of Pennsylvania regarding divorce stated:

It is the design of marriage, and the wish of parties entering into that state, that it should continue during their joint lives; yet where the one party is under natural or legal incapacities of faithfully discharging the matrimonial vow, or is guilty of acts and deeds inconsistent with the nature thereof, the laws of every well-regulated society ought to give relief to the innocent and injured person.¹

Before the American Revolution, Colonial Law banned divorce outright (an act of Parliament was necessary to dissolve a marriage). After the revolution, the states adjusted the laws to do away with the now irrelevant parliamentary permission and instituted a set of permissible divorce conditions, which included bigamy, incest, impotency (reflecting the high value of children in early America), abandonment, adultery or extreme cruelty (abuse). 

This was motivated by the belief that if marriage was easy to dissolve, it would “destroy all mutual confidence, and to inflame every trifling dispute.”²

A thorough review of the colonial and early American views on marriage and divorce reveals that no state allowed for NFDL until the fateful signing of that bill in California in 1969. 

Conclusion

A state that is interested in serving the common good will aim to restore broken-down castles. It will strengthen the new castles being built today and set the stage for those strong fortifications that guard the frontiers of Western Civilization by placing a high value on marriage and family. When a man leaves his father and mother, and he and his wife become one flesh, that is the foundation of a strong nation and civilization. Let no man tear it asunder. And if any man does so, let him face the full weight of the law. Governing for the common good is the charge of all sitting in public office. It is abundantly clear that the current regime of No-Fault Divorce has torn down the castles that uphold the strength of the realm. We must do away with this policy for the justice of the oppressed, the strength of the nation, and the future of humanity.

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