Could California ban divorce? Should it?

I’ve been mulling about this one for at least a week, and after the two days of discussing Laura Munson’s separation memoir, this seemed like as good a time as any to bring it up.

Two years ago, there was a lot of talk in California about “protecting marriage” as Proposition 8 came up on the ballot. The constitutional amendment that defines marriage as strictly between one man and one woman passed, controversially, calling into question the legal status of 18,000 gay marriages, and has been in and out of the courts ever since. I had a few things to say about it at the time, and in reference to the “protection” question, my thoughts were these:

I fail to grasp how anyone in a “traditional” marriage is personally threatened by gays marrying. We have enough struggles in maintaining healthy, strong marriages as it is. If marriage really needs “protection,” make it harder for anyone to get married in the first place. Many churches require pre-marital counseling before a wedding ceremony; make that a legal, secular requirement in order to be granted a marriage license. How about a test before licensing – not a blood test, which most states no longer require anyway, but a written exam? If it’s important enough to have a test for driving, what about for something else you’re intending to do for the rest of your life? Afterward, marriage could also be “protected” by making divorces harder to get, although as someone who has been through not just divorce but the personal pain leading up to it, I don’t think I would fully support that myself; sometimes the individual needs protection more. But I really don’t get how marriage is being “protected” by denying it to gays and lesbians.

Bride and groom figurines lying at destroyed 
wedding cake on tiled floorIt appears that it’s occurred to others that if marriage truly is to be preserved, maybe it does need to be harder to get out of a marriage once you’re in one. There’s an initiative in the works that would make divorce out-and-out illegal in California, proposed by the group (I’m not linking to them, but you can look them up if you like). It’s aiming for the 2011 ballot if it gets enough signatures to qualify in the petition stage:

ELIMINATES THE LAW ALLOWING MARRIED COUPLES TO DIVORCE. INITIATIVE CONSTITUTIONAL AMENDMENT. Changes the California Constitution to eliminate the ability of married couples to get divorced in California. Preserves the ability of married couples to seek an annulment. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Savings to the state of up to hundreds of millions of dollars annually for support of the court system due to the elimination of divorce proceedings. (10-0019.)

I’ll save my annoyance with California ballot initiatives for another time, but the short version is that this state, at times, has put far too much governance directly in the hands of its people. I’ll also note that all initiatives are required to state their projected impact on the seriously troubled state budget…but financial considerations have little to do with this proposal. Besides, according to in the post linked above,

“…further state analysis predicts fewer marriages in California, thus possibly, ‘over time, result in a lower overall state population.’ It could also reduce the number of marriages, meaning fewer weddings resulting in less local spending at businesses affecting the tax base.”

I’m inclined to think that if you prohibit divorce, you probably will see fewer marriages. It’s not that most people go into marriages expecting, or intending, that they won’t last, or that marriage is something undertaken casually by the general population; although I strongly suspect that in some cases, there’s certainly an element of that – it’s hard to live so near Hollywood and not think so – but I don’t believe it’s the norm.

But as much as we’d like to believe in happily ever after and idealize the nuclear family, and even with all the money spent on weddings in this country, the hard truth is that sometimes marriages don’t work. Sometimes they become physically dangerous to one of the partners. Sometimes the mental health of one or both spouses is threatened by their domestic situation, or substance abuse is present. In a home where the parents are struggling with one another, their children’s well-being can suffer. And sometimes, no matter how much they’ve worked at it, two people just can’t find a way to keep living with each other. Should the state force them to do so anyway? I don’t think so. There needs to be a way out.

I’ve been married twice, and divorced once. The same thing applies to my husband. Neither of us initiated the end of our first marriages, and we did not take their ends lightly. The costs of the divorce aren’t just financial, and they are not costs I want to bear a second time – neither does he. Hopefully, we learned from the failure of our first marriages, and we understand more about how to keep this one together. But at the same time, we’ve also both lived within the misery of a marriage that’s near death – the fighting, the silence and avoidance, the pervasive emotional distress under a veneer of stability – and that has costs too. I really would prefer not to bear those costs again, either, and I would not appreciate being required by law to pay them.

There are couples who have made the personal choice that, for them, divorce is not an option. Some have found healthy ways to address the challenges of a shared life. Others live in a state of cold war and share as little as possible, but have their reasons for sticking it out. However, at least they have the possibility of ending things if they do, at some point, become impossible. Prohibiting divorce would take that option away, and while it might indeed “protect marriage,” some of the marriages it would protect might be better off left unprotected and allowed to end. I’m not opposed to making it harder to end them – requiring counseling and a mandatory legal separation before filing for divorce, for example – and I really would prefer to believe that most of them aren’t being ended on a whim, but I do think that the legal right to end them needs to be preserved. I’ll be keeping my eye on this initiative – it failed to qualify for the 2010 general-election ballot, and I hope it meets the same fate this time around.

Image credit: PicApp Image Search via BlogHer

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