Things are changing. After scoring a victory with the overturning of Roe v. Wade, conservatives are setting their sights at overturning no-fault divorce laws.
At-fault divorce laws, prior to 1970 and stretching centuries previous, looked something like this:
A married couple could divorce under mutually-agreed conditions.
If there was no mutual agreement, then the case went to court. There had to be proof of “fault,” typically abandonment, cruelty, incurable mental illness, or adultery. Wikipedia summarizes:
Prior to the latter decades of the 20th century, divorce was considered to be against the public interest, and civil courts refused to grant a divorce except if one party to the marriage had betrayed the “innocent spouse.” Thus, a spouse suing for divorce in most states had to show a “fault” such as abandonment, cruelty, incurable mental illness, or adultery. If an “innocent” husband and wife wished to separate, or if both were guilty, “neither would be allowed to escape the bonds of marriage.”[9] Divorce was barred if evidence revealed any hint of complicity between spouses to manufacture grounds for divorce, such as if the suing party engaged in procurement or connivance (contributing to the fault, such as by arranging for adultery), condonation (forgiving the fault either explicitly or by continuing to cohabit after knowing of it), or recrimination (the suing spouse also being guilty).
Unfortunately, this did lead to a lot of problems. Things would be tied up in court forever, and in the end, divorces were usually granted. (It is hard to imagine staying married to someone who ties you up in long legal cases.) Women who wanted to break up the family would inevitably claim that their husbands got drunk and beat them. I am sure this almost never happened, just as it almost never happens today. Nevertheless, about 25% of marriages ended in divorce in the 1960s, and probably there was a barrage of lies that went along with that. Some lawyers offered a “prostitute and photographer” package for women who wanted to frame their husbands for adultery.
Actually, three States today — Mississippi, South Dakota and Tennessee — require mutual consent for no-fault divorce.
What if the State just got out of it? Whether a man and a woman “were” or “were not” married, or divorced, simply was not a matter of the State’s concern. SigmaFrame had an interesting series about this history and concept.
This is not far from what we see in Scandinavian countries today, where men and women live together for a long time, and have children together, without ever getting “married.” Aren’t they married?
What would happen in the dissolution of one of these informal “common law marriages”? Probably, assets that were in an individuals’ name would be retained by the individual. Assets with formal joint ownership would probably have to be split somehow, likely with one side buying the other out, or just selling it and splitting the proceeds. Children would be distributed among parents, or even other relatives, as appropriate.
A step up from this is a private marriage contract, that is entirely a civil contract without State involvement. Basically it is a business contract, still enforceable by law.
Cornerstone 