Marriage should be life-long
Although (or because?) divorce is nowadays very frequent, the severe damage this practice does to society is hardly ever discussed in public.
True love seeks durability and life-long engagement. A young man who, rather than promising his fiancée eternal love, tells her that he will remain married to her until a more suitable person comes along would be very unlikely to win her heart. This life-long commitment is also a necessary precondition for the successful rearing of children. Children remain dependent on their parents for nearly 20 years (if not more), during which time they need not only food, clothing and shelter, but also personal care and attention. This is difficult to provide where families are instable.
That marriage should be life-long corresponds thus both to desire and necessity. But the necessary stability of marriage needs to be provided for by the legal order. The adoption of liberal divorce laws sanctions the breach of a promise. By undermining the stability of marriage it undermines the institution of marriage as such. Although today it may seem that divorce has been socially accepted long ago, the time when in many countries there was no divorce law is not too distant. For example, in Italy divorce was introduced only in 1974, and in Spain and Portugal even later. Malta was the last European country to legislate for the availability of divorce in 2011.
The current confusion around the meaning of the term “family” certainly has more than just one single reason – but undeniably, the proliferation of divorce and of extra-marital relationships is the most important one. The increasingly frequent breaking up of marriages, and the unwillingness of many couples to build their family on the basis of a binding and life-long mutual commitment, leads to a fragmentation of society: a steadily growing number of persons do not live in stable families any more, but in instable relationships of uncertain nature. This has dire consequences for society: there is a correlation between the instability of relationships and declining birth rates, and children stemming from such relationships have a higher risk of physical and mental health problems, of delinquency, of school failure. Given that this creates a heavy burden for society, it can hardly be said that the issue is merely a private matter. The problem also has a tendency to proliferate: children whose parents divorce themselves have a statistically high risk of divorcing.
While the children concerned are the first victims of family break-up, the wider consequences of the growing instability of families should be a matter of concern for society as a whole.
Liberal divorce laws undermine the institution of marriage
It is of course very tempting for society to turn a blind eye to this, or to downplay it with embellishing language (either by simply extending the meaning of the term “family” to whichever group of persons want to be called by that name, or by using euphemistic terms such as “patchwork families”), but that does not solve the problem. The proliferation of divorce sets in motion a vicious circle: rising divorce rates lead to calls that “the law should be adapted to modern realities”, i.e. that divorce laws should be further liberalized (e.g. by legislating for consensual “express divorce” procedures, or by discarding the issue of culpability in the context of divorce settlements). As a result of more liberal divorce laws, divorce rates will continue increasing, and as a result of increasing divorce rates there will be calls for further facilitation of divorce, as if the breaking up of a family were a banality.
As a result of this development, the legal order has been transformed in a way that is detrimental for the stability of marriages. The terms of a marriage cannot be freely negotiated by the partners, but they contract marriage according to the terms foreseen by law. In countries where divorce is easily available (i.e. where the law protects the interest of the partner who wishes to divorce rather than those of the partner wishing to maintain the marriage) marriage is turned from a permanent into a preliminary status and it is de facto no more possible, in strictly legal terms, to contract a life-long marriage. Each partner must know, even at the time of marriage, that if the other partner wants a divorce, he will be able to get it. And very sadly, that hypothesis must be factored in from the outset. The fact that divorce and separation laws increasingly do not take into account the question of who was responsible for the break up means that the rules of the game are changing: the laws provide little protection to the partner who remains loyal to his conjugal duties and wants to maintain the marriage; instead, it in some cases even places a reward on infidelity and the deliberate destruction of a marriage. If there are still marriages that last a lifetime, it is not because of, but despite, a legal system that does not favour stability.
It is this profound change in the significance of marriage[1] that has led some countries to give to cohabiting couples similar or equal rights and benefits as if they were married, even though they are unwilling to enter into any mutual binding commitment between themselves. In a certain sense, this seems quite logical: where marriage does de facto not create a binding commitment for the married partners any more, why should there be a difference in treatment between married couples and unmarried ones?
But if unmarried different-sex couples can receive the same rights and benefits as married couples, why should such rights not be given to any two persons irrespective of their sex? The contemporary discussion around same-sex “marriages” is at least in part imputable to the fact that wide parts of society simply do not understand any more what a marriage is. If the hypothesis of same-sex “marriages” has acquired some plausibility in public debate, it is because people neither understand the purposes nor the level of commitment associated with a marriage. The proliferation of divorce is one of the main drivers of this development.
Divorce in International law
Since divorce became frequent in Western societies, the diversity of national laws regulating the conditions and consequences of divorce is creating headaches for lawyers and leads to forum-shopping of estranged couples.
No international case-law, however, seems to exist with regard to the question whether state legislators are obliged to provide for divorce. There are some references to the hypothesis of the dissolution of a marriage (e.g. in Article 23 (4) ICCPR, or in Article 17 (4) of the American Convention on Human Rights), but these are crafted in a way that does not create a “right to divorce”. This question thus seems to fall entirely within the remit of the competence of national legislation, but there is of course one obvious limit: divorce cannot be regulated in such a way as to turn marriage into a completely empty shell. Arguably, therefore, a marriage law that does not allow for divorce would be in line with international human rights standards, whereas legislation allowing a person to obtain a divorce too easily could be seen as violating the right to marriage.
Conclusion
Divorce has become so frequent in our society, that hardly anyone would dare even to dream a world without it. Yet if we want to save the institution of marriage, this is precisely what we need, the courage to imagine what seems unimaginable. From a political perspective it seems of course unrealistic to propose the abolition of divorce laws. But maybe we could suggest a “liberal” approach: at a time when, every now and then, some politicians kite-fly the idea of different types of “low-grade marriages” (such as the French PACS, which was originally intended as a civil partnership for same-sex couples, but which, following the signing into law of same-sex “marriage” by President Mitterand, is in fact a partnersip with a low degree of mutual commitment), why not also allow – of course only for those who so wish – a new type of “high-commitment marriages”, i.e. marriages that are indeed life-long and, therefore, not divorceable? One might call it “real marriage”. There would certainly be some demand for such an institution, and it is not clear why those demanding it should not have the right to get it.
[1] It should be noted in this regard that for many centuries it was held that when a man and a woman privately agreed to found a family, such a marriage was valid in the legal sense (common law marriage). Such a private agreement, however, was different from mere cohabitation without the intent of founding a family. Although marriage was traditionally considered a sacrament by the Churches, the Catholic Church formalized the sacrament of marriage only as late as 1563 (Decree Tametsi, adopted at the Trent Council). It was only from 1800 onwards that state legislators attempted to introduce civil marriage in order to gain control (and definition power) over it. At the time, the Churches sought to oppose this development. Paradoxically, the development we observe today seems to go in the direct opposite direction: secular politicians seek to dismantle civil marriage, and Church hierarchies seek to preserve what their historic predecessors once opposed.
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