There is now a movement to end no-fault divorce across the US.
This naturally raises the question: What should the divorce laws be?
Should there be any divorce laws at all?
Historically, there always was a provision for “no-fault divorce,” under whatever terms both parties could agree upon. Probably, this should be kept.
I do not think the typical divorce laws of the 1960s, before no-fault divorce, are necessarily very good. Mostly, they also, like today, had an excess of favoritism toward the woman. It was very common in those days to falsely claim that a man was an “abusive alcoholic,” to get divorce benefits. Basically, no different than today, but more significant since such claims were required for an advantageous divorce settlement. Although the 25% divorce rates of that time were far less than the 50%-ish rates of today, nevertheless that is still very high, and due in part to the advantages women received in divorce, such as alimony. It was basically a reflection of 1960s Feminism. You have to go back before the Feminist era, before 1880, when divorce rates were below 5%, to find good examples of divorce law that actually functioned to produce beneficent outcomes.
I think there probably should be some sort of divorce law, but let’s think about what the situation would be if there were no laws at all — if divorce was, essentially, the same as a live-in boyfriend/girlfriend relationship today, something the State doesn’t really take any part in.
In that case, the man and woman would keep whatever assets were in their name, and have nothing else to do with each other. There would have to be some careful assessment of in whose names various assets belonged, during and before the marriage. This would be established by tradition and common practice. Mostly, houses and cars should be in the man’s name. He would keep them. Probably, he paid for them. A woman would keep any assets that she came into the marriage with; and perhaps, those that she acquired during the marriage, probably in the form of inheritance. A second car can be in her name. A woman would also keep any debts that she came into the marriage with. If a woman works during the marriage, her income should basically go to the man, to be disposed of, including paying mortgages. She can pay down her own debts. Retirement-type assets, arising from a woman’s income, stay with the woman. Other income issues can be decided during the marriage. But, in the end, if it is in your name, you keep it; otherwise you have no claim on the other’s assets or income.
Children are simple: whoever keeps them, pays for them. There is no child support or alimony. Mostly, the man would keep them, since he has the income to pay for them. Also, this tends to make men hesitant to divorce their wives, in favor of a younger woman, since someone needs to care for the children, and who better than their own mother? Most women do not want to take care of another woman’s children — thus the long tradition of “evil stepmothers” in fairy tales.
While I think it is not too uncommon for a man to wish to throw his wife out onto the streets — some wives are simply a daily torment — I also think it is uncommon for a man to throw his own children on the streets, just so he can whore around with younger women. The Romans, in the patriarchal tradition, required a man to keep custody of his children, even if he divorced his wife. In general, a man would prefer to whore around with younger women, while also keeping his wife and children. This is certainly uncomfortable for a wife, but she can also leave if she wants to. Anyway, Jackie Kennedy put up with it.
In all the various scenarios that come up, the fallback is basically family. What if a woman is abandoned by her man, along with the children, and all are kicked out of their own house? Basically, if she does not simply keep the household herself as a single mother, she goes to live with either her parents or her brother.
What if a man is abandoned by his wife? She just leaves one day to go be a whore. The man keeps the children; and his house. Most men are pretty content with this, and make good fathers. He keeps his assets, and basically not much changes except that he doesn’t have to take care of his trashy wife anymore.
What happens to the children? We assume that a man and a woman can come to some kind of agreement about the custody of children. They are not assets obviously held in the name of one party or another. Often this “agreement” comes about as the consequence of some other action. If a woman just leaves to be a whore, she leaves her children. We have the situations where children are desired by both parents; or perhaps, desired by neither. In general, the default where children are desired by both parents should be the father, it seems to me. Where children are desired by neither, typically relatives step in to take up the slack. This is already common today, where children are raised by their grandparents or aunts, since their own parents are apparently incapable of the task. Such has been the character of human society for a long time. In the past, these situations developed more commonly because one or the other parent would die young. A man would die young, perhaps with no significant assets, and in a rented house, leaving his wife and children alone. Or a woman would die young, commonly in childbirth. How is this different than if a man or woman abandons the family to go be whores? Except for a sense of injustice, the functional outcome is almost the same. In general, things are easier today than they used to be.
In general, there are two basic forms of contention: Where nobody wants a child, and where both parents want a child. Somehow this would need to be resolved. Also, there would have to be some establishment of legitimate custody — that one parent or the other couldn’t change their mind somewhere along the way, and contend either for custody of a child or abandonment of a child, in some open-ended fashion. Again I tend to think that the father should get first choice in all matters involving the custody of children. But, probably women would be a lot less interested in custody if they didn’t get any child support or alimony. Men just assume that if they have a child, they will pay for them.
A woman that just leaves her family one day to go be a whore — a very common scenario today — is still married, at least at first. Then what? In the past, this meant that she could not marry again, since she was already married; although not living in her husband’s house. I’m not sure this would be relevant in this situation. Maybe it doesn’t matter.
In short, the effect would be that the “terms of divorce” would be set in advance, in the form of ownership of assets. This being the case, some care should be taken on these points, and would be. Probably nothing should be held “jointly,” as this just invites legal trouble later on. Household fixtures are assumed to be part of the household in which they are located.
I do not want make an argument here about eliminating divorce laws altogether. Phyllis Schlafly, who certainly knows more about the laws than me, was opposed to the Libertarian argument that the State should basically be out of marriage; but she doesn’t say why, or what exactly her alternative is. Usually, as a general principle, we find that the Libertarian Argument is mostly correct, although perhaps not applied in 100% of all situations. It turns out that the State does a pretty good job of maintaining public roads, but that does not mean we have to accept the other 90% of its activities today, which were explicitly banned in the Constitution explicitly to avoid the consequences we have today. Perhaps we do not need the State to be 100% out of the marriage sphere altogether; but 90% would work well. I have to admit that this scenario, painted here, seems pretty functional. Certainly it allows for many injustices; mostly in the form of adultery. But, on balance, these injustices seem less than the injustices handed out today by the family courts every day of the week.
Cornerstone 