Why Mutual Consent Makes Sense

By Patricia Owen,
Grassroots advocate for strong marriages and families

Should mutual consent and counseling be required for couples in non-abusive marriages with children before a divorce is granted? Three decades since the divorce revolution took hold, the legal requirement for divorce has devolved into a mere claim of "incompatibility" by a dissatisfied spouse. This standard for the response of government when petitioned is faulty for several reasons.

First, there is another spouse who presumably has equal rights in the marriage. Two persons willfully entered into marriage. To forbid one from asserting the viability and prognosis of the marriage is grossly partial and even merits constitutional challenge. The present emotion of the petitioner should not trump the interests and well-being of the other spouse and children. The responding spouse should have the right to present the history and overall quality of the marriage, and its value to him/her and to the children.

Second, government should never have authority to rule in favor of one party to a lawsuit based only on petition. Imagine the outcry if government stamped a guilty verdict in every prosecution. Yet that occurs in every divorce case in New Mexico. A cause of action based on emotion rather than facts results in over 12,000 split families annually in our state. They appear to be mutually consented because attorneys don't advise clients to deny the allegation that incompatibility exists to the level of irreconcilableness.

Third, a claim of incompatibility is more likely to be opportunistic than to seek protection from real harm.

For many, divorce is the most heart-rending event in their lives, with personal losses of a valued spouse, children's time and affections, and a decreased standard of living. So is divorce a problem or a solution? After experiencing a generation of misery, many are rethinking this and other questions. Whose lives are improved and whose are worse off? Is one spouse's unhappiness enough reason for divorce? Do children really believe parents will continue to love them when they can stop loving each other?

Recent social research has some answers. Children with married parents do better on all measures of well-being than kids in other structures including stepfamilies. Men, women, and children are all poorer after divorce. Although men recover more quickly financially, they lose time or contact with their children. But mothers also lose time with kids, because they're at dad's or mom works more. Men are more likely to remarry, and choose younger second wives. Divorced women are freer to make career choices, but their prospects for remarriage drop after age 30, and plummet after 40.

Furthermore, eighty percent of divorces are unilateral decisions, with one spouse considering reconciliation. Seventy percent are low conflict situations without abuse or constant fighting. Of the thirty percent regarded as high conflict divorces, less than 15% cite domestic violence or substance abuse. Adultery crosses the spectrum. Almost half of first marriages, 60% of second marriages, and 80% of third ones fail.

So what is the benefit for most of the players in divorce? Losses and gains vary, but to which side have the scales tilted? Overall, for most persons and society at large, divorce is a losing proposition. And with taxpayers absorbing the fallout, why is government so unconcerned about family breakup? Under current law, the state unabashedly sides with every divorce petitioner. This defies American principles of contracts, due process, and burden of proof. But, the old argument goes, government can't force people to stay married. Yet for thirty years it has forced divisions upon spouses who thought their vows had meaning under the law. It has forced countless children to live the yo-yo lifestyle when only one parent approves. Divorce forces unwanted consequences on someone. The question is, where should government apply its force?

It's time government moved to the side of preserving marriages where reasonable and feasible. Perhaps it's time for government to expect a little more from divorce petitioners when violence is not present. If their spouse declines the divorce, petitioners would still have choices: (1) with appropriate intervention, to put their hearts into rebuilding their marriage, (2) to prove one of the other three grounds in the statutes (adultery, abandonment, and cruelty), or (3) convince their spouse to consent to divorce by negotiating a better settlement. Presently, respondents have no choice but to adjust to a forced divorce.

Government can't change hearts. But there should be a cultural ethic whereby it would be considered irresponsible to end a marriage without two people first getting serious help. Ideally, counseling helps the couple assess marital strengths and weaknesses, finds interventions to improve satisfaction, and helps them rebuild. Many counselors, both secular and faith-based, are armed with new approaches to healing marriages. Proven and new relationship skills courses and mentoring programs are becoming more available. Much more is available than most judges, attorneys, pastors, or even counselors are aware of.

Divorce court must not serve as a morgue when one spouse still feels a pulse. One size does not fit all, and it's time that the law, through its judges and attorneys, started recognizing the value of marriages when one spouse does. SB677 and HB755 merit the support of lawmakers and citizens alike.

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Answers to common objections:

1) To conservatives who claim this is too much government in personal life: It is hypocritical to say you want less government in your personal life, yet you condone the government issuing a judgment without evidence for a claim. Every time a person files for divorce, she/he is literally asking for government intervention in the most personal area of their lives. Also, government has tremendous authority over children of divorce, and will tell you when you can spend time with them and how much money to spend on them in child support. So keep your right to unilateral divorce, and either you or your spouse can at any time send your children into the government's hand of authority.

2) To liberals who want to be known for their compassion: you have shown lots of compassion to those who choose to divorce. Why so little sentiment for abandoned spouses? You offer them a chance to "grow" but minimize their losses.

3) To feminists and proponents of equality: if marriage is entered into by two equal partners, where is equality in the right to make the divorce decision itself?

4) To those who fear a mutual consent requirement for divorce will increase domestic violence: The abuse issue must be dealt with honestly. SB677 and HB755 do not tolerate DV. If the district court finds that domestic abuse, as provided in the Family Violence Protection Act, has occurred and has entered an order of protection pursuant to the provisions of that act, the court may decree a dissolution of marriage on the ground of incompatibility. Real violence must not be tolerated. Fortunately, people are being made more aware of the it, and society is recognizing the importance of efforts to eliminate violence with increased penalties and in some cases treatment for improper anger and abusive behavior. Unfortunately, some people use the abuse card and claim fear in order to gain advantage, and some spouses are treated as guilty until proven innocent.

But divorce as an immediate and instant solution to violence falls short. Most DV does not occur in marriage. Cohabiters are significantly (six to thirty times, depending on the researcher) more likely to experience violence. They, along with parent-child, child-parent, gay, lesbian, non-live-in lovers, ex-spouses and ex-lovers make up the great majority of DV cases. Divorce in and of itself does not offer protection from DV. Some of the most violent and even lethal cases involve ex-spouses and ex-lovers who were not protected by unilateral no-fault divorce laws. Would there be an increase in severe violence if divorce required a finding of abuse by the court? One could just as easily ask whether disenfranchised spouses are more likely to act in violence when they have not been allowed to state their case in divorce court. A lot of this debate falls under assumptions that pit men and women against each other needlessly. Again, perpetrators, victims, men, women, attorneys, judges, and law enforcement need to be honest in dealing with the domestic violence issue.

Reasonably salvageable marriages should not be held hostage to irrational fears that somewhere some woman will be beaten to death because unilateral divorce requires more that mere statement of incompatibility

Pat Owen
pat.at.marriage.matters@worldnet.att.net