The Faults in ‘No-Fault’ Divorce

Jesus rejoiced in the institution of marriage. “He Who created them from the beginning made them male and female, and said, ‘Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh.’ So they are no longer two but one flesh. What therefore God has joined together, let not man separate” (Matthew 19:4-6).

Note the phrases: “hold fast … one flesh … what God has joined … not separate.” Marriage is, in God’s good plan, unitive and permanent, a covenant made to last. While Jesus made an exception for infidelity, God’s word makes clear that marriage is composed of a relationship that is to be as secure as our salvation in Christ. Indeed, marriage is a picture of the union of Christ and His church (Ephesians 5:22-33).

In our culture, this beautiful union has been tarnished by the availability of penalty-free dissolution. On July 6, 1969, the state of California enacted the nation’s first “no-fault” divorce law. As the state’s judicial branch website explains, this means “no one has to prove someone did something wrong to cause the divorce (this is called no fault divorce). You can get a divorce even if the other person doesn’t want one.” This measure became law under the signature of then-governor Ronald Reagan, who later told his son Michael that signing it was “one of the worst mistakes of his political career.”

In 2010, New York became the last state to enact a no-fault divorce law; today, all 50 have some form of the law on the books. Making no-fault divorce available and inexpensive is like offering a child an endless supply of ice cream and soda: Given human fallenness, something accessible that is also seen as desirable will be common. According to the Centers for Disease Control and Prevention, in 2021 there were 1,985,000 marriages in the United States and almost 690,000 divorces — almost exactly 35% of those who tied the knot.

In total, about half of first-time marriages end in divorce; subsequent marriages end at an even higher percentage. While the causes vary widely, ultimately no-fault divorce is a precipitating factor.

 It has also become common. As National Review journalist Madeleine Kearns observes, we now have “widespread acceptance of ‘no fault divorce,’ the idea that marriage, like a car, sometimes spontaneously breaks down, becoming more hassle than it’s worth.” A disturbing but accurate metaphor. “The nation saw a spike in divorce rates following the enactment of no-fault divorce laws,” writes The Daily Signal’s Daniel Davis. “Between 1960 and 1980, the divorce rate more than doubled and remained relatively steady into the 1990s.”

At the same time, consider research by the University of Virginia’s Dr. Bradford Wilcox, who heads the National Marriage Project, that “active conservative Protestants,” or Evangelicals, “who attend church regularly are actually 35% less likely to divorce than those who have no religious preferences.” Also, in 2018, Harvard’s Human Flourishing Program published research collected over 14 years showing that “regular religious service attendance is associated with 50% lower divorce rates in later life.” So, while it’s good news that among regular churchgoers the divorce rate is lower, it is still high. And the costs of divorce for the couples involved, their children, and the culture at large are wide and deep. The scars left, especially on children, are large and enduring.

Christians need to pursue Christ-honoring marriages and there are many resources to help them; some can be found at FRC.org. With that said, while personal character is not the province of government, both Scripture and the Constitution emphasize the need to restrain the excesses of human fallenness. Penalizing adverse and destructive behavior is necessary for individuals and communities, even nations, to enjoy a high measure of stability and security. Along with this, nothing strengthens the foundation of any society more than healthy, robust families. So, what can government do, for the good of everyone, to create a cultural environment in which faithful marriage is encouraged?

Policies that bolster marriage are helpful. For example, the home mortgage deduction, the adoption tax credit, and the charitable tax deduction are among those that enable families to better pay their bills. But things like the so-called “Respect for Marriage Act,” which essentially said that marriage is whatever any state says it is, and no-fault divorce take away from whatever else government gives.

What is not helpful is a national policy in which divorce-at-will, or with modest qualifications, is now more the norm than not. Revising state divorce policy is a tough challenge; model legislation (which includes exceptions for such things as spousal abuse and abandonment) provides guidance but has yet to be enacted. It’s hard to curb people’s desire for an easy-out.

Perhaps the most effective remedy is for believers to model the kinds of marriages Jesus envisioned. As Christian men and women demonstrate the beauty of the lifelong, exclusive, covenantal commitment He taught, the attractiveness of the one-flesh union might well make marriage more attractive.

A final note: Theologically, there’s no such thing as a no-fault divorce. There is always at least one party morally responsible for violating something God never intended to be dissolved.