This past week, I awoke one evening and in almost Wilberforce fashion, the Lord seemed to set before me this "one great object": the abolition of no-fault divorce. Weird! The fact is, this legal practice has wrought untold human suffering and injustice since its establishment in 1969. It is an evil that exists in active opposition to the principles of God's kingdom. As Christians, we are commissioned to oppose what is evil in the advance of Christ's kingdom (see Luke 19:13). So the abolition of a policy that has systematically undermined our society's commitment to the divine plan for the family seems perfectly consistent with the admonition to "seek first the kingdom."
Throughout history, Christians have fought against countless social evils from slavery to child labor and these battles inevitably began with a campaign of sustained public persuasion that exposed the hidden evils to a public largely unaware. Similarly, no-fault divorce has become so commonplace that its evil is either obscured or ignored. But the availability of no-fault divorce has served to increase family dissolution at a rate greater than ever before in history; furthermore, it undermines the institution of marriage itself, perhaps more so than any other single factor in history. We would not be standing on the brink of same-sex marriage were it not for the corrosive effect upon marriage-as-an-institution that followed the divorce revolution.
Constitutional and family law attorney J. Shelby Sharpe says, "No-fault is national catastrophe. Anything which overturns the order or systems of things whereby families are destroyed and the whole of society adversely affected is by definition a catastrophe."
You may be surprised to learn that the initial efforts to advance no-fault divorce legislation were underwritten by Hugh Hefner through the Playboy Foundation, which financed an army of young lawyers working to advance these antifamily policies. Let's see…America's largest pornographer working to rewrite public policy related to the family? There's something seriously wrong with this picture! Alfred Kinsey also played an instrumental role in reducing these legal protections by falsely reporting that adultery was commonplace in most marriages. This reduced the stigma associated with adultery and ultimately served as the basis for eliminating all laws against adultery. Hefner and Kinsey both saw marriage as the final barrier to sexual freedom and thus determined to remove its inhibiting influence upon unrestrained sexual activity.
No-fault divorce is much more than just divorce; it is a legal tyranny that denies the fundamental right of due process to a defendant. Prior to no-fault divorce, the party seeking divorce (plaintiff) was required, by law, to demonstrate cause on the part of the other party (defendant) prior to dissolving the marriage, dividing the family's assets, and destroying the two-parent structure essential for children. These measures provided strong legal protections—primarily to women and children who might otherwise find themselves abandoned by husbands and fathers who simply sought "greener pastures." (You might think me overly hard on men here. Granted, both men and women can be guilty of abandoning marriages; however, statistically speaking, women and children are most often the victims.)
Under the system prior to no-fault divorce, the state was limited in its actions and intrusion into the private affairs of the family except in those cases in which one of the parties committed a legally recognized offense against the other. In the wake of no-fault divorce, the state has been given unprecedented access into and unconstitutional authority over what was previously sacrosanct: the family. Historically, the law regarded the family as a preserve of privacy that was largely off-limits to the government. It was what Supreme Court Justice Byron White (1962-1993) called the "realm of family life, which the state cannot enter."
What is most shocking about no-fault divorce is the inherent unconstitutionality of it all, a direct violation of human rights. A retired circuit court judge writes, "To the characterization of no-fault divorce laws as both ungodly and inhumane I would add unconstitutional as well." In my conversation with attorney J. Shelby Sharpe he was confident that if a case involving no-fault divorce were ever brought before the U.S. Supreme Court it would no doubt be ruled unconstitutional and no-fault divorce abolished!
One of our most fundamental protections secured by the U.S. Constitution is the right to due process, which secures the right of an individual to be heard regarding issues of life, liberty, or property. This means that no person shall be deprived of life, liberty, property, or of any right granted him by statute, unless the matter involved is first adjudicated or ruled against him at trial.
No-fault divorce completely usurps the defendant's constitutional right to due process. In the case of Judith Brumbaugh, author of Judge, Please Don't Strike That Gavel on My Marriage, with whom I spoke, her husband of twenty years had an adulterous affair, formed a relationship with the other woman, and decided that he no longer wanted to be married. Under the no-fault procedure he was able to file for divorce claiming that their marriage was "irretrievably broken." Judith contested this claim, hoping to preserve her marriage; however the no-fault procedure ultimately gave her husband and the court the right to deny her due process. She was, in essence, charged with a crime, found guilty, and sentenced without ever being heard. The marriage contract was unilaterally dissolved.
Judith lost her home, her children, and her husband; she was left nearly destitute from legal expenses and utterly without recourse—which is legally impossible in every other contractual obligation in this country! And yet in the most important contractual obligation in society, under no-fault divorce the plaintiff is able to break his or her contractual obligation without the right of due process being given to the other party in the contract. The defendant's life can be ruined, her liberty restrained in countless ways, and her property taken away by the courts. I know, and I'm sure you do as well, too many women and children who have suffered similar results.
This is a travesty of justice that affects more than a million families each and every year, with an annual related cost to taxpayers of more than $48 billion! This cost doesn't even begin to consider the secondary societal effects of family dissolution upon crime rates, welfare rolls, and the emotional and psychological effects upon the children of divorce. No-fault divorce has created an easy divorce culture, which, according to Maggie Gallagher, an affiliate scholar at the Institute for American Values and a nationally syndicated columnist, "demotes marriage from a binding relation into something best described as cohabitation with insurance benefits."
No-fault divorce is a social and legal atrocity that needs to be abolished both for the sake of families and children that have, for too long, been subjected to the tyrannical actions of family courts, and because it has encouraged, through law, radical selfishness on the part of narcissistic, self-indulgent spouses. What must be understood by Christians is that no-fault divorce functions as a direct enemy of the gospel of the kingdom by opposing the in-breaking reign of God and his desires for the family.
I will be sharing more on this and what you can do in the months ahead.
© 2009 by S. Michael Craven
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S. Michael Craven is the President of the Center for Christ & Culture and the author of Uncompromised Faith: Overcoming Our Culturalized Christianity (Navpress, 2009). Michael's ministry is dedicated to equipping the church to engage the culture with the redemptive mission of Christ. For more information on the Center for Christ & Culture, the teaching ministry of S. Michael Craven, visit: www.battlefortruth.org