The No-Fault Divorce Fiasco: The Catholic Church Looked the Other Way

When the Synod of Bishops on the Family first convened, the Catholic Church had a heaven-sent opportunity to atone for one of the biggest failures in modern ecclesiastical history and in so doing to take a major step in resuscitating the Christian faith in the daily lives of millions of people.

The provocative challenge of Cardinal Walter Kasper highlights one of the Church’s (and the churches’) most spectacular lapses in judgment: the refusal to contest the “abolition of marriage” (in Maggie Gallagher’s phrase) that was effected by “no-fault” divorce.

Yet as currently framed, the debate over Cardinal Kasper’s proposals stunningly misses the point. By casting the debate in terms of admitting divorced and remarried persons to communion, the Church appears determined once again to avoid confronting the central evil of the Divorce Revolution, the evil that still taints the Church, along with the family and civic life, and one no stable civilization can tolerate. This is involuntary divorce and the injustice committed against the forcibly divorced or innocent spouse, along with his or her children.

The Cardinal makes no distinction between a spouse who abandons the marriage, commits adultery, divorces unilaterally without recognized grounds (“no-fault”), or otherwise violates the marriage covenant in legally recognized ways, and a spouse who is the victim of such deeds. To treat the sinner and the sinned against as if they are the same is to deny the very concept of justice and to place the Church and other institutions on the side of injustice.

This willful neglect of justice in adjudicating divorce — not the dissolution of households per se — was the vitiating outrage of “no-fault” divorce. By not challenging the state’s claim that it may dissolve marriages without any consideration for the consequences or injustices inflicted on the forcibly divorced, the Church followed the state into the realm of amorality, a realm suited to the aggrandizement of institutional power but fundamentally antithetical to both the Gospel and a free society.

Since this fateful decision, the oxymoron of “no-fault” justice has been gradually poisoning both our culture and the fundamental institutions of our civilization, starting with the family, passing through the Church, and extending to the state machinery, such as the judiciary. Divorce-without-consequences is exacting a devastating toll on our children, our social order, our economic solvency, and our constitutional rights. It has led directly to explosions in cohabitation, illegitimacy, welfare, and crime and to demands for same-sex marriage.

No public debate preceded this ethical bombshell in the 1970s, and none has taken place since. Legislators “were not responding to widespread public pressure but rather acceding to the well-orchestrated lobbying of a few activists,” writes Bryce Christensen. Critically, these are the same sexual ideologues who have since expanded their campaign into a much broader agenda of sexual radicalism: same-sex marriage, abortion-on-demand, sex education, women in combat, homosexuals in the military, Obamacare, and more. Feminists were drafting no-fault divorce laws in the 1940s, which the National Association of Women Lawyers now describes as “the greatest project NAWL has ever undertaken.”

The result effectively abolished marriage as a legal contract. Today it is not possible to form a binding agreement to create a family.

The new laws did not stop at removing the requirement of citing grounds for a divorce, to allow divorce by mutual consent, as deceptively advertised at the time. Instead they created unilateral and involuntary divorce, so that one spouse may dissolve a marriage without any agreement or fault by the other. Moreover, the spouse who abrogates the marriage contract incurs no liability for the costs or consequences, creating a unique and unprecedented legal anomaly. “In all other areas of contract law those who break a contract are expected to compensate their partner,” writes Robert Whelan of London’s Institute of Economic Affairs, “but under a system of ‘no fault’ divorce, this essential element of contract law is abrogated.”

The result was to unleash precisely the moral and social chaos that it is the role of the family to control, and powerful interests were not slow to capitalize. Legal practitioners immediately began encouraging business by taking the side of the violator. Attorney Steven Varnis points out that “the law generally supports the spouse seeking the divorce, even if that spouse was the wrongdoer.” “No-fault” did not remove fault, therefore; it simply allowed government officials to redefine it however they pleased and to treat legally unimpeachable citizens as malefactors. “According to therapeutic precepts, the fault for marital breakup must be shared, even when one spouse unilaterally seeks a divorce,” observes Barbara Whitehead in The Divorce Culture. “Many husbands and wives who did not seek or want divorce were stunned to learn … that they were equally ‘at fault’ in the dissolution of their marriages.”

The judiciary was expanded from its traditional role of punishing crime or tort to refereeing private family life and punishing personal imperfections. One could now be summoned to court without having committed any legal infraction; the verdict was pre-determined; and one could be punished for things that were not illegal. Lawmakers created an “automatic outcome,” writes Judy Parejko, author of Stolen Vows. “A defendant is automatically found ‘guilty’ of irreconcilable differences and is not allowed a defense.”

Though marriage is a civil matter, the logic quickly extended into the criminal, including a presumption of guilt against the involuntarily divorced spouse (“defendant”). Yet formal due process protections of criminal proceedings did not apply, so forcibly divorced spouses became quasi-criminals not for recognized criminal acts but for failing or refusing to cooperate with the divorce by continuing to claim the protections and prerogatives of family life: living in the common home, possessing the common property, or—most vexing of all—parenting the common children.

Following from this are the horrendous civil liberties violations and flagrant invasions of family and individual privacy that are now routine in family courts. A personalized criminal code is legislated by the judge around the forcibly divorced spouse, controlling their association with their children, movements, and finances. Unauthorized contact with their children can be punished with arrest. Involuntarily divorced parents are arrested for running into their children in public, making unauthorized telephone calls, and sending unauthorized birthday cards.

Cardinal Kasper’s agenda ignores all this and will certainly make it worse. Indeed, what he is demanding is a kind of no-fault church discipline, which will debase the Eucharist and church membership, just as no-fault divorce has already debased marriage and the secular justice system, by allowing clergy to redefine sin and cheapen repentance: “If a divorced and remarried person is truly sorry that he or she failed in the first marriage … can we refuse him or her the sacrament of penance and communion?” But sincere repentance requires an effort to rectify the harm caused by one’s sin. Does the Cardinal’s definition of “truly sorry” entail undertaking to compensate one’s former spouse for being summarily evicted from his or her home, or deprived of his children, or serving jail time for unauthorized parenting or trumped-up accusations of “child abuse” or “domestic violence” that are now routine in divorce proceedings? Does it include compensating one’s children for depriving them of a father throughout their childhood? These are the realities of modern divorce, not the sanitized understanding being presented by the Cardinal.

But perhaps the most explosive question: Why is the Church not willing to sort out the difference, both in its doctrine and in each individual case? Is it because the distinction between justice and injustice — central to the Gospel itself — would force the Church to confront the injustices perpetrated by a state that has dangerously overstepped its authority and the Church’s own failure to act as the society’s conscience on a matter involving its own ministry?

For the Church is simply following the politicians. In contrast with same-sex marriage, abortion, and pornography, politicians and even self-described “pro-family” groups studiously avoid challenging divorce laws. “Opposing gay marriage or gays in the military is for Republicans an easy, juicy, risk-free issue,” Gallagher writes. “The message [is] that at all costs we should keep divorce off the political agenda.” The exception proves the rule. When Pope John Paul II spoke out in January 2002 — calling divorce a “festering wound” with “devastating consequences that spread in society like the plague” — he was attacked not only from the left but also by conservatives like Tunku Varadarajan in the Wall Street Journal.

Likewise, this power grab by ideologues and state functionaries at the expense of the family and private sphere of life was met by the churches with silence. Here is a sacrament consecrated by the Church, vowed before God and witnessed by the congregation. The state comes along and simply tears it up, and the Church mounts no serious response. 

In the showdown that never took place over sexual morality and the supervision of private family life, this was the moment the two jurisdictions were forced into a direct confrontation and the state simply and decisively told the Church who is boss. From the moment that the Church failed to inform the state that it could not simply countermand God’s covenant governing the family, the Church has been little more than an ornament in marriage and therefore in the lives of most people.

Marriage is today the most critical interface of church and state. Whoso controls marriage governs society, not least because it becomes “the hand that rocks the cradle.”

This rivalry is not apparent in the terms by which marriage is contracted and consecrated. Here church and state cooperate quite effortlessly: a ceremony, a signature.

Where the power struggle ensues is in the terms by which a marriage can be dissolved, and it was the Divorce Revolution that precipitated the battle that the Church refused to fight. The Church, along with its Protestant counterparts, ceded to the state the authority to dissolve marriages at its own pleasure and on its own terms and to erect a regime of governmental micromanagement over the private lives of the contracted parties, innocent as well as guilty—all without scrutiny or objection by these churches who consecrated the supposedly sacred union.

Far from upholding a sacred covenant, the churches, both Catholic and Protestant, are thus parties to a fraudulent contract. They have allowed their marriage ministry to become a bait-and-switch, luring unsuspecting parties into a supposedly binding and lifelong union, where they are then sitting ducks for state functionaries to come along and simply tear up the covenant and seize control over their lives and children. And the state tears up not only the secular contract, but the covenant between the spouses, the congregation, and God. The state’s edict countermands the churches’ covenant and with it the churches’ entire authority. With the churches’ acquiescence, the state’s officials put God in His place.

However impeccable the churches’ doctrine, and whatever verbal lamentations they have expressed over divorce “culture,” what the churches have not done is resist the state’s claim to monopoly control over the terms of divorce and to supervise the private lives of the forcibly divorced: the churches have never raised their voices against the state’s usurpation of power; they have never defended innocent victims of the unilateral divorce injustice or interposed themselves between the state and innocent spouses; they have never challenged state functionaries taking the homes and children of innocent people; they have never gone to court to see that justice is done to the involuntarily divorced; they have never campaigned to change the laws governing divorce or prevent the enactment of more; and they have never even discussed the possibility of threatening to not consecrate marriage covenants until the state stops unilaterally tearing them up.

This is demanding a lot from the churches and all of us. But less existential confrontations with the state faced churchmen like Ambrose and Becket and Fisher, and nothing less is required if the churches expect to withstand the crisis posed not only by figures like Cardinal Kasper but also the larger radical sexual regime: same-sex marriage, abortion-on-demand, sex education, Obamacare, plus the creeping criminalization of parents and others who dissent, including ordinary Christians.

Divorce is where Christians can and must draw a line and launch a vigorous counterattack that will enlist stakeholders from secular society: ordinary citizens who can at last be brought to realize why the Church and God must have a central place in both our public and private lives if we are to have any private lives at all.

Stephen Baskerville is Professor of Government at Patrick Henry College and past president of the American Coalition for Fathers and Children. He is a Fellow at the Howard Center for Family, Religion, and Society and a Research Fellow at the Independent Institute. He holds a Ph.D. from the London School of Economics and his second book, Taken Into Custody: The War against Fathers, Marriage, and the Family, was published by Cumberland House Publishing in 2007. This article originally appeared in Crisis Magazine on October 7, 2014 and is reprinted here with permission.