The Bittersweet Rise of the At-Fault Divorce

Divorce is a complicated subject in the US today. And while we should never idolize the past, as if they did not have their own besetting sins, it is helpful to see trajectories that led to today’s culture of divorce. From the Kairos Journal vault is a peak into history.
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In 1788, when Abigail Strong sought a divorce from her abusive husband, the hard-fought Revolutionary War was fixed in her mind as she reasoned, “even Kings may forfeit or discharge the allegiance of their subjects.” Abigail was not alone in her thinking. Marriage, according to the Founders, “was a voluntary association of a man and woman, who contracted in liberty to create the independent legal and civic entity of the family.” According to Thomas Jefferson, if this “voluntary association” should suffer “a long train of abuses,” then it too can be severed. Such reasoning paved the path toward legalized divorce in America.
The burgeoning nation now had a new and complicated responsibility: legalizing divorce while exerting itself as the guardian of marriage. At the turn of the century America grew faster than the government. As a result, though most states required official ceremonies, self-marriages became common and, after them, self-divorces. Since wives tended to be the victims of these self-divorces, states lobbied for a legal divorce where blame could be assessed and the transmission of property clarified. In a sense, as historian Nancy Cott demonstrated, it was the rise of the at-fault divorce:
The plaintiff had to show that the defendant had broken the contract. Rather than aiming foremost at individuals’ freedom, or intending to alter the concept that marriage was lifelong, early divorce statutes aimed to perfect marriage by weeding out the contracts that had been breached. If a spouse was divorceable, it was because he or she had committed a public wrong against the marriage as much as a private one against the partner; the public wrong justified the state’s interposing its authority.
Courts were interested not only in assessing guilt but in perpetuating traditional gender roles; wives were servants; husbands, providers. In fact, even if a wife were to be found guilty of a divorceable offense, at least in the South, judges often required that the husband continue to provide support.
During the nineteenth century, state legislatures increasingly liberalized their divorce statutes. Whereas in the eighteenth century, adultery and desertion were the only recognized bases for a divorce, “states added grounds such as extreme cruelty, fraudulent marriage contract, gross neglect of duty, and habitual drunkenness. Most of them shortened the period of desertion necessary (from five years to one or two).” Some states gave the courts complete discretion to end a marriage. Connecticut, for example, could do so for “any such misconduct . . . as permanently destroys the happiness of the petitioner, and defeats the purposes of the marriage relation.” Indiana, Illinois, North Carolina, and Iowa had similar “omnibus” divorce clauses.
The history of divorce in the nineteenth century is bittersweet. No doubt all parties took divorce more seriously in this era when compared to the present age. Divorce was regulated by the state; courts assessed blame and penalties and, as a result, divorce rates were low (less than two divorces per thousand in 1870). Nonetheless, the trajectory was set. The more the state regulated divorce, the more individuals looked to the state to decide the parameters of marriage. The state did more than print up a license, it entered the business of “blessing” the dissolution of covenant relationships once considered sacred. Cott minced no words when she wrote, “Far from being an institution fixed by God, marriage was in the hands of the legislature . . . marriage was their political creation.”
Christians can debate the extent to which the state should be involved in recognizing and dissolving marriages. What is not debatable is the fact that the Church can never outsource the responsibility of being the conscience of the institution of marriage. Bureaucrats who have made marriage “legal” and divorce “final” for over 200 years in American history may think they have the last word, but they do not—the ultimate Word on marriage and divorce has been given by God to His Church. She is the guardian, the caretaker, and the conscience of marriage. May she not be silent.