The precise legal nature of marriage in our society is not easily understood. It is a good deal more than a civil contract. As Ploscowe points out, "If the parties to a commercial agreement are not satisfied with its terms, they may without consulting any public authority rescind or modify them. What they do with a contract is their own concern."
No such freedom exists in marriage. A husband and wife cannot, of their own volition, agree to dissolve a marriage contract. A divorce or annulment must be granted by the government, and it must be legally sufficient reasons, and not simply because the two parties involved desire it. What is more, the legal reasons for granting a divorce rarely have anything to do with the real reasons the two parties have for requesting it.
Ploscowe states, "[Our] conception of marriage stems from the Roman law. But the lawyers of imperial Rome could call a marriage a civil contract with much more justice than American lawyers, for Roman law permitted men and women to dissolve their marriages at their own will and pleasure, without he intervention of any public authority. Our law has never given married people this authority."
Control over marriage gives the government control over sex. This need not be true, but is this case on our society, because sex is limited by law to the married.
Control over sex is not he only reason that society is interested in the institution of marriage, however. Marriage and the family are considered an essential part of our social structure and, as expressed by the court, in a New York divorce decision (Fearon vs. Trenor): "Marriage...is more than a personal relation between a man and a woman. It is a status founded on contract and established by law based on principles of public policy affecting the welfare of the people of the state.... From time immemorial the state has exercised the fullest control over the marriage relation, justly believing that happy, successful marriages constitute the fundamental basis of the general welfare of the people."
But if marriage is truly to be an institution which serves the general welfare of the people, a great many laws and administrative procedures require serious re-evaluation. Whose welfare is served by divorce laws totally unrelated to the actual causes for the dissolution of a marriage? How can a court even begin to come to grips with the problems it faces in a suit for divorce, if the statutes regulating the court's decision stipulate only synthetic, legally acceptable conditions that must be "met" in order for a husband and wife to end an unwanted marriage?
Each of the 50 states has its own particular set of divorce statutes—some lenient, some strict. The stricter the statutes, the more artificial, and unrelated to the actual causes of divorce, they are apt to be. Nor are the stricter divorce laws any serious deterrent to the breakup of an unsuccessful marriage.
A couple desiring a divorce simply goes to a more lenient state to secure it or, more frequently, they tailor their divorce complaint to suit their own state's requirements. In other words, with the able assistance of their attorneys, they perjure themselves. And here we have the first example, with a great many more to follow, of how unrealistic sex statutes turn ordinary citizens into criminals.
"The fewer the grounds for divorce," states Ploscowe, "the greater the incentive to commit perjury."
New York is an excellent example of a state with a strict divorce law: The only ground for divorce in New York is adultery. That is the requirement that must be met in New York, if a couple wishes a divorce—adultery. The Bible says, "Thou shalt not commit adultery"; but the State of New York says, "If you want a divorce, you must!"
Despite what may appear to be a state sanction of sin, a majority of New Yorkers seeking an end to an unhappy marriage seem to prefer some manner of legal subterfuge to extramarital sex. This we were recently privileged to witness the wife of the Governor of New York journeying to another state to secure a divorce on grounds that were not legally acceptable in her own state.
More often, however, New Yorkers get their divorces at home—and if an adulterous affair is not to their liking, the state simplifies matters by making subterfuge and perjury easy: The law does not require actual proof of sexual intercourse to grant a divorce on the ground of adultery; it is sufficient if there was an opportunity to commit adultery and what the statute refers to as an "adulterous disposition." Thus, a husband need only register at a hotel with a woman who is not his wife, followed shortly thereafter by a prearranged raiding party that conveniently discovers the pair in a state of partial undress or in a "compromising position." This is enough to justify the granting of a divorce.
As a result, a thriving business has sprung up that caters to this need for prearranged "adultery." In 1948 a group of such "divorce mill" specialists was exposed and indicted in New York. They offered two kinds of service to husbands and wives who were seeking divorce: (1) the set-up job, similar to the hotel-room raid described above, complete with an "unknown woman" (or man, as the case might require); and (2) the testimony job, which was simply perjured testimony about such a raid, concocted in the corridors of the courthouse. Hundreds of divorces were secured by this ring, whose nefarious doings were discovered when one of their professional "unknown women," a Mrs. Sara Ellis, became upset over the small fees she had been receiving (eight to ten dollars a case).
How does any of this serve the general welfare of the people? Obviously, it does not. Our divorce statutes are based, for the most part, not on reason or any real concern for public welfare, but on religious convictions that are unrelated to the social problems that both cause divorce and are the result of it.
The current irrational state of affairs in divorce legislation can be corrected, and the general welfare of the people best served, by (a) establishing uniform divorce laws in the 50 separate states; and (b) relating those laws to the actual causes of divorce.
As we shall see, the problem of uniformity is a serious one that appears throughout all of our U.S. sex legislation. It is responsible for what is termed migratory divorce—a discrimination situation which permits those able to afford it to seek divorce in a state other than their own where the legislation is more lenient by setting up temporary residence there. This is not only unfair to citizens of lesser financial means, it can also produce cases like the following that occurred in Wisconsin in 1948: A man and woman were married in that state. They separated, the wife moving to Minnesota. The husband then obtained a divorce in Wisconsin; under Wisconsin law, the divorce was not final for one year. During the year, the woman remarried in Iowa. Under Iowa law this second marriage was valid—the Wisconsin one-year waiting period notwithstanding. The newly married couple returned to Wisconsin and set up house. They were both convicted of adultery, because under Wisconsin law the wife was still married to another man (State vs. Grengs).
Divorce laws should not only be uniform in all the states, they should be based on the actual reasons for seeking an end to a marriage, even when the reason is no more complicated than the fact that a couple no longer cares for each other. It is to the best interests of the husband and wife, as well as to the best interests of the court and society as a whole, to permit the couple contemplating divorce to seek it on honest grounds. By thus encouraging a frank and open discussion of the marital problems that produced the proceeding, the court is in the best possible position to deal with the problems and possibly save the marriage.
Where children are involved, a special attempt should be made to salvage the relationship, through the introduction of professional counseling and a period of readjustment. Failing in this, however, the divorce should be granted on the simple and quite honest basis that the couple no longer wishes to remain husband and wife. Society does not benefit from the forced perpetuation of a marriage that is no longer desired by the couple involved. More harm is done to children raised in a family torn by disunity, tension and personal dissatisfaction than results from a broken home.
Permitting divorce to be granted on the basis of mutual consent, instead of requiring a couple to meet arbitrary and often artificial legal requirements, would maximize the court's chances of saving the marriage by eliminating the significant element of subterfuge in present divorce hearings. Despite this face, Ploscowe observes ironically, in Sex and the Law: "Divorce by consent may have been good enough for the heathen Romans of imperial Rome under the dictum that 'if marriages are made by mutual affection it is only right that when the affection no longer exists it should be dissoluble by mutual consent.' It may have appeared attractive to the mountaineers of the Swiss cantons. It may have appeared desirable during periods of revolution and disorder like the French and Russian Revolutions, when all institutions of society tend to break down. Divorce by consent may even have been urged by great men such as John Milton, Sir Thomas More, Jeremy Bentham, and John Stuart Mill. However, divorce by consent has never been recognized by English or American law."
It is feared that more realistic and, therefore, more seemingly liberal laws would appreciably increase the rate of divorce, but even if the perpetuation of unwanted marriages could be rationalized as beneficial to society, it is doubtful that the present statutory hodgepodge achieves that end. Despite the seeming strictness of our present statutes, divorce itself is commonplace and can be secured with relative ease by any couple so inclined. At the turn of the century, there was approximately one divorce for every 12 marriages; by 1930, the ration had jumped to one out of every six: today, approximately one marriage in four winds up in the divorce courts.