The Same Sense of Honor and Piety
The Recovery of Fault-Based Divorce
No-fault divorce has reshaped American family life. Before 1970, divorce usually required demonstrating serious fault—adultery, desertion, cruelty. Starting in the 1970s, states adopted no-fault laws with marriage terminable at the will of one party. Shorn of stigma, divorces multiplied.
Churches accommodated this shift in different ways. Many have tried to prevent divorce by offering marriage counseling as a way to save the marriage. When parishioners seek divorce, however, pastors have treated civil decrees as final, rather than seeking to reform the law or to run separate inquiries within the church.
Benjamin T. G. Mayes’s Divorce & Remarriage: Ecclesiastical Discernment and Pastoral Care is a timely meditation describing what taking divorce seriously in churches would demand. His book deserves a wide readership among church leaders hungering for more than ineffectual, sentimental appeals to “family values.”
Whether any church has the stomach for regulating divorce today is another question. For Mayes, the biblical approach to divorce demands much more of the church: weighing the facts in order to distinguish innocent and guilty parties, discernment of repentance, and real discipline, including a refusal to recognize wrongful remarriages, and possibly excommunication. Such a process invites conflict, to say the least. Every divorce would put an individual church on edge, with the possibility of factional splits and enduring division.
Politics also complicates a church’s divorce problem. In the 19th century, states operated fault-based systems. Courts required proof of adultery, desertion for a set period, extreme cruelty, or similar offenses. Under adversarial proceedings, plaintiffs filed formal petitions alleging specific grounds for divorce. Witnesses and documents presented evidence to support the claims. Judges (sometimes with juries) investigated and evaluated the claims, weighing testimony and determining whether sufficient fault existed to justify dissolution. Dirty laundry was, indeed, aired, as anyone who has watched old episodes of “Divorce Court” would know. States awarded alimony, divided property, and awarded child custody only after fault was established.
The state’s goals included maintaining public order, protecting the vulnerable, enforcing basic contractual obligations, and preventing reliance on public charity. Civil law gradually expanded the grounds for fault-based claims to include habitual drunkenness, gross neglect, and imprisonment. Eventually, the burdens of overseeing dissolutions was so great that states embraced no-fault divorce in the 1970s to protect the courts from having to wade into messy private disputes.
The no-fault regime allows one-party divorce on demand. Waiting periods are short or non-existent. Fault is irrelevant. Divorce court is administrative, quick, and focused on asset division and child custody. Marriage under these conditions becomes a temporary contract terminable at the whim of one party.
The divorce regime has shaped cultural patterns of marriage and family formation in our country. What happens at the state level does not stay at the state level. Serious church discipline seems impossible under these conditions. Pastors have chosen to avoid addressing divorce altogether, except to say that it causes pain and may require repentance.
The old fault-based regime is a distant memory. Nearly everyone, including Christians, accepts the no-fault regime as part of contemporary society’s legal architecture. A great strength of Mayes’s book is to raise serious questions about the means and ends of the no-fault regime, which is an indispensable precursor to having a serious discussion about our current system.
A church that desires to take these spiritual and covenantal matters seriously will have to go much further than the current no-fault system. Mayes sees two primary problems with the lax treatment of divorce in today’s churches. First, churches should legitimate divorces only in cases of adultery or malicious desertion. Second, churches must handle divorce according to public witness.
But these are not simple matters. Mayes’s sola scriptura framework leads him to define adultery narrowly as physical sex with a person not one’s spouse. He does not include viewing pornography or affairs of the heart, for instance, as adultery.
Malicious desertion involves a range of actions that risks it becoming an overly broad category. Malicious desertion is the experience of being abandoned against one’s will. Sometimes this means one spouse has abandoned the other, never to come back. Sometimes it means a refusal to fulfill the duties of a spouse. Persistent masturbation, especially by using pornography, Mayes argues, could constitute gross neglect of duty and malicious desertion, if a spouse refuses the marriage bed. Both a deserted spouse and one wronged through adultery can remarry without guilt.
The fact that the Church has narrower grounds for divorce than the civil authority creates challenges. Imagine a woman, call her Tammy, who becomes addicted to demerol, dilaudid, and valium and is reckless with the family’s finances and a danger to her children. The husband, call him George, would be entitled to a civil divorce under these circumstances. A pastor may even advise it for the sake of the family estate and the children’s protection. Tammy’s drug use is neither adultery nor malicious desertion, however, so George would not be able to remarry. If he does remarry, Tammy would have grounds for divorce.
The Christian teaching has a hard edge.
Having described the grounds for divorce, Mayes addresses the process. Mayes envisions a church investigation when someone petitions for a divorce. Pastors and elders would conduct an inquest to establish facts and verify the grounds for divorce, to clarify consciences, to call sinners to repentance, and to maintain the church’s public witness. The church’s public witness is especially important. When a marriage begins with a public acknowledgment in a church ceremony, it should end with a similar public acknowledgment. And such a public declaration must involve allocating blame, just as it initially involves public consent.
As the example of George and Tammy shows, church adjudication distinguishes de jure humano (civil, legal) realities from de jure divino (divine) ones. A civil divorce could sometimes stand for legal purposes—e.g., dividing property—while the church refuses to recognize the civil divorce as ending the one-flesh bond before God. A church’s process—thorough inquiry, preference for reconciliation where possible, and discipline when necessary—differs from civil courts. The church discerns as a community under the authority of Scripture. It can require the cessation of adulterous or wrongful unions. It binds and looses with the authority of Christ (Mt 18). Mayes’s case studies illustrate how a church process could work in concrete situations. Pastors weigh evidence, counsel parties, and issue declarations that clarify what God requires.
Mayes’s approach has worked in churches at certain times and circumstances. Tellingly, his description of church divorce is drawn from theologians who were pastors when the state’s fault-based system enabled the church’s more assertive approach. The state was concerned with the external goods of marriage, while the church was attesting to its inner reality and its Biblical foundation.
Similarly, a country without the stomach for civil fault-based divorce will, predictably, almost lose the stomach for a serious ecclesiastical system to address divorce. The Catholic teaching on annulment and indissoluble marriage is mostly honored in the breach in the modern world. A majority of Catholics think divorce should be easier to obtain. Most Catholics do not bother with annulments, and the Church commonly grants annulments to nearly every petition. Protestant churches drop the Catholic farce altogether, and rarely acknowledge wrongful divorces in their midst.
How can the country and church get out of this terrible mess? When the state does not hold citizens to fault-based standards, churches have difficulties doing so. When churches do not, the moral authority for maintaining standards in the state wanes. Few people can even remember what taking fault seriously would mean. The fault-based system appears more of an invention than a natural outgrowth from practice. Under today’s circumstances, churches are damned if they don’t and would be seriously criticized if they did.
Mayes promises a plausible way forward. It is best to think of this in a series of steps. Churches could lead with teaching the scriptural basis for divorce, courageous pastoral care, and consistent discipline. Pastors would teach about the evils of divorce and the limited grounds for it. Part of that teaching would consist in talking about how churches should investigate circumstances of divorce and apply discipline to the wrongdoers in public when necessary. Parishioners would have to grapple with this hard teaching and begin to discern the church’s role in addressing divorce. This would create conditions for churches to do harder work in practice.
Mayes’s book equips pastors for the hard work ahead, if they should choose to undertake it. It reminds us that marriage is a divinely sanctioned relationship for companionship, procreation, mutual aid, and a remedy against lust and lack of chastity. Seriousness about addressing divorce and remarriage flows naturally from seriousness about the good of marriage. His conclusions are, in a sense, inescapable given clear Christian teaching.
Faithful churches exercising biblical discernment offer a path toward the recovery of family life. Willing the end of faithful marriages with limited grounds for divorce means we must be ready to will the means. The ancient church gained converts as they courageously upheld the high standards of Christian morality, including marriage, against the backdrop of Roman decadence that defined the late empire. Perhaps the same sense of honor and piety is entirely appropriate for our late republic.