What is marriage? The divorce edition

It is a tired trope that people who care about marriage are inordinately worried about it being redefined and should just work to address the problem of divorce. Of course, in fact, they have been doing just that for a long time.

The easy divorce culture represents a significant challenge to the definition of marriage, and its complete acceptance (not yet accomplished thankfully) would represent another kind of radical redefinition of marriage.

This is increasingly clear from the ongoing legislative debate in Utah over whether judges ought to be able to consider whether one spouse committed adultery or abused the other when determining whether to order the innocent spouse to pay support to the one who betrayed them or vice versa.

Some opponents of any effort to allow the law to treat marriage as a serious obligation seem to view the role of our courts as performing mercy killings of ailing marriages. They are, this account suggests, merely to ensure that the bonds of matrimony are severed quickly and “painlessly.” (A bitterly ironic perspective, as evidenced by the shell-shocked look of a child whose parents are divorcing or of an abandoned spouse.)

Testimony offered in opposition to the bill this year even suggested (one can only hope inadvertently) that the actions of spouses are irrelevant if a simple dollar figure can’t be placed on them (the example used was when one spouse transmits a disease to another through unfaithfulness, the courts should be able to order compensation for the costs of treatment; not much of a concession).[1]

But marriage is not a mere contractual arrangement. It’s much more, and it is an inappropriate denigration, a redefinition, to suggest otherwise. Marriages are not joint corporations whose assets are to be split up according to an impersonal formula. They are made up of solemn, indeed sacred, promises that create obligations to be forfeited only for the most serious reasons and only when the potential of harm to children and adults from continuing the marriage outweigh the harms that sundering the bonds will cause.

To suggest otherwise defies not only common sense but is a radical deconstruction of what we have always understood marriage to be.

Allowing the law to treat marriage vows seriously will not lead to a flood of litigation (another suggestion made this session). The current law (reflecting longstanding legal rules) which specifies that courts may consider the fault of the spouses when making alimony awards was operative from 1995 to 2009, when the courts decided not to enforce this portion of the law, inexplicably claiming not to understand the concept.[2] The divorce rate (per 1,000 population) during the 1995-2009 period went from 4.4 to 3.6, a decrease in cases rather than a flood of litigation.

At any rate, as a state that has good claim to valuing marriage and family, we have to squarely face the question of whether we will acquiesce in the treatment of marriage as a mere arrangement of convenience, a redefinition that severely weakens it. That would be a mistake we will regret.


[1] One wonders why the stereotype of heartless lawyers has developed.

[2] It should be noted that Judge Gregory Orme wrote an important dissent to this opinion that argued:

In my opinion, the Legislature’s clear statement that fault may be considered in alimony determinations, see Utah Code Ann. § 30-3-5(8)(b) (2007), represents a policy judgment that courts should take to heart and endeavor to follow. The fact that this legislative mandate is made in a broad and generalized way strongly suggests that the Legislature appreciates the multitude of factual scenarios that arise in divorce cases, recognizes the broad equitable powers traditionally enjoyed by the courts in doing justice in divorce proceedings on a case-by-case basis, and trusts the courts to flesh out the alimony/fault concept in the course of adjudication of cases over time.

I fear that we betray that trust and shirk that responsibility in telling the Legislature we cannot follow that policy mandate until it is spelled out more precisely. Indeed, in declining to consider fault, we are in fact “substitut[ing] our judgment for that of the Legislature,” because it is plain that in using the term “fault” without a great deal of specificity, the judgment of the Legislature is precisely that the courts should develop the concept in the context of real disputes, rather than having the Legislature do so in a factual vacuum.


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