January 10, 2007
Column #1,324
Advance for January 13, 2007
(first of a two-part series)
Mutual Consent: A Major Divorce Reform
by Michael J. McManus

As 27 states  passed constitutional amendments to limit marriage to "one man, one woman," I wondered why those victories did not spark reforms of No Fault Divorce, a cause of millions of broken marriages.

Frankly, the greatest threat to marriage is not same sex marriage, but divorce, which has destroyed 38 million marriages since 1970.

Coalitions of religious leaders rightly mobilized to fight gay marriage. But they demonstrated no similar passion to strengthen traditional marriage.

However, the Family Foundation of Virginia, an affiliate of Focus on the Family, announced last week that it will push for "Mutual Consent Divorce" to require couples with children to mutually agree to a divorce before their marriage can be legally terminated, unless there has been a major fault such as physical abuse.

"Right now, one spouse can unilaterally end (the marriage) and not only is their spouse unable to stop the divorce, their abandonment does not preclude them from having custody of their child," said Victoria Cobb, President of the Family Foundation.

"When we send a message that one can up and leave their family and have no consequence, the Old Dominion is encouraging divorce."

The Foundation is courageously fighting for a tough, ambitious reform that has not passed in any state.  Why would it do so?

Ms Cobb explained, "When we were working on the homosexual bill, every time we showed up for a debate, the opposition would ask, `How can you sit here and work against gay marriage when heterosexuals have made such a mess of marriage?'  My answer was that we would love to do so rather than wasting time in fighting for the obvious," that marriage is between people of opposite gender.

After the amendment passed by 57-43 percent, she kept her pledge. Similarly, Julaine Appling, who led Wisconsin's Family Foundation's successful battle for a marriage amendment, called it "just one part of our goal to restore a culture of marriage in Wisconsin."

"It would be criminal not to take on No Fault Divorce which has weakened marriage, making it an institution that does not appeal to young people because it doesn't last a lifetime. The message it sends to our kids is that you don't have to go into marriage with a mentality of sticking it out because you have a safety net. For no reason at all you can walk away."

Why would Mutual Consent be such a major reform of No Fault?

1.  No longer could a married parent unilaterally walk away from a marriage with often devastating consequences for spouse and children. "The system rewards those who lie, cheat and steal and use kids as a weapon to alienate the other person," asserts John Crouch, President of Americans for Divorce Reform. "Marriage has historically been a contract in which people `forsake all others,' giving each person a reason to invest their energies to make marriage work for both of you and your children.  Any complicated, high investment human endeavor, such as building a skyscraper, requires an enforceable contract.  Mutual consent would create a contract that eliminates one person's ability to abrogate it. Couples could rely on marriage again."

2.  No Fault is really "Unilateral Divorce," which wipes out the Constitution's guarantee of "due process."  Billy Miller of Louisiana, divorced against his will, notes, "ALL legal rights in a divorce are extended to the divorcer, because the one who wants to save the marriage loses EVERY TIME. The judge's decision is mandated by state law. Before the court convenes, it is a done deal. Can't appeal. No voice. No choice."

3. Mutual consent would result in fewer divorces.  One study estimated that No Fault laws caused a 17% increase in divorce rates. That's conservative. The number of divorces rose from 393,000 in 1960 to 708,000 in 1970, largely due to the sexual revolution.

The first No Fault law passed in California in 1969 and swept the country in the 1970's.  The number of divorces jumped another 55 percent  to 1.1 million by 1978, a hike I attribute to No Fault.  Mutual Consent could slash divorce rates by a third. In Virginia that would reduce 30,000 divorces to 20,000, saving 10,000 precious marriages.

4.  By requiring Mutual Consent the state would assert its interest in the future of children, who are best brought up by their own married parents. Hundreds of studies prove such children have fewer emotional problems, are less likely to drop out school, become pregnant or delinquent.

5. What was entered into willingly by two people should only be exited only if both agree.