Before the Law

Interesting discussion (RealAudio) on Chicago Public Radio's Odyssey about how citizens and law enforcers negotiate the interstices between official on-the-books legal rules with social norms and personal discretion.

Among the interesting anecdotes offered: Before no-fault divorce, couples wanting to split up would sometimes come up with… creative solutions. A husband might hire a prostitute and have himself photographed sitting on a bed with her, then pass the photos on to his wife to be offered as evidence of adultery, which the law did recognize as grounds for divorce.

Comments

[Captain Spaulding]

Woody Allen did a bit about that in his stand-up routine 35-40 years ago. "The Bible says 'Thou shalt not commit adultery" but the State of New York says you have to."

[WSDave]

So if the religious conservatives can force us to go back to "fault" divorces, does that bode a boom in prostitution? Or would a guy just get some internet porn and Photoshop himself into the scene?

[SM]

"Or would a guy just get some internet porn and Photoshop himself into the scene?"

No, that might violate copyright.

[Bonar Law]

Divorce by mutual consent is one issue, but another issue posed by the reformed divorce laws is whether one spouse can *unilaterally* terminate the marriage no matter how faithful and loyal the other spouse has been.

[Mike]

Divorce by mutual consent is one issue, but another issue posed by the reformed divorce laws is whether one spouse can *unilaterally* terminate the marriage no matter how faithful and loyal the other spouse has been.

Or, put another way, whether one spouse can *unilaterally* keep someone in a marriage against their will.

[kmw]

"...another issue posed by the reformed divorce laws is whether one spouse can *unilaterally* terminate the marriage no matter how faithful and loyal the other spouse has been."

IIRC, even before "no fault," assets were split up 50%/50%. At the time, the husband was more likely the sole provider and so had the most to lose. And was odds-on probably the one being unfaithful.

There's never been any real reward for being faithful, in divorce proceedings. (Although if you go back far enough, your reward was not being stoned to death.) There used to be a social stigma, but it doesn't exist anymore. And it won't reappear even with "fault-only" divorces.

At any rate, I really don't see the reason for keeping an adult tied down in a marriage the person doesn't want. Marriage itself, in a number of ways, is a patriarchal holdover from when women were treated as little more than property.

[R C Dean]

Or, put another way, whether one spouse can *unilaterally* keep someone in a marriage against their will.

Well, marriage is a contract. Some contracts are terminable at will, without cause, by either party. Other contracts are terminable only for cause.

Its hard to say that, if you are a party to a contract terminable only for cause, that you are being held in that contract against your will. After all, you voluntarily entered into the agreement, and no one is doing anything more than asking you to keep your word.

I'm not saying this is the best model for marriage, I'm just sayin' that the "kept in a marriage against your will" line is a little over the top. You agreed to those terms, so it is against your will, its as you agreed, capisce?

[Randolph Carter]

Nice Kafka reference

[Jon]

Odyssey is such a great show. It's so much better than things like Talk of the Nation.

TOTN invites the same people in all the time, and they're often politically involved with the issues under discussion, including expensive lobbying campaigns. So, they just push their organization's party lines, trying to move the ball for their side, rather than making any attempt at discussing the issue itself with any kind of objectivity.

The guests on TOTN are often so predictable they could be replaced with customized Teddy Ruxpin dolls, with little or no change in the show. You just get your Club For Growth Stephen Moore Ruxpin doll, with his prerecorded message tape, and you're good to go, for Talk of the Nation shows on half a dozen topics, at least.

Odyssey, on the other hand, often invites academics you've never heard of, but who are at least willing to talk about the topic, which they know a great deal about, and aren't just there as part of a self-interested political lobbying campaign.

[kmw]

You agreed to those terms, so it is against your will, its as you agreed, capisce?

A lot of people get married because they're young and emotional, and society still tells them it's wrong to cohabitate. When the emotions wear off, they realize there isn't much left between the two of them. Of course token counseling is usually offered pre-nup, but the two lovebirds have their heads in the clouds.

If a society heavily influenced by religious dogma is going to insist on marriage-only sex, they're going to have to live with the divorce consequences.

[Larry White]

FWIW, Julian, you just described a central plot element of an old (1956) Indian comedy about divorce, Guru Dutt's Mr. & Mrs. 55. For good measure, the guy wanting to give his wife grounds for divorce posed with two girls -- and an empty whiskey bottle.

[SixSigma]

If a society heavily influenced by religious dogma is going to insist on marriage-only sex, they're going to have to live with the divorce consequences.

Please show proof divorce in high in the US due to religion. IE Please show figures where religion is downplayed and divorce is lower.

Religion, in every statistic I've seen, is a stabilizing factor in marriage not a destabalizing one.

But, before I attempt to disprove your thesis, please provide evidence as to your assertion.

Full Disclosure - I'm married, but not religious.

[kmw]

R C Dean sez:

Well, marriage is a contract. Some contracts are terminable at will, without cause, by either party.

Marriage is mostly an agreement to share assets, with two 50% shareholders. If a 50% shareholder votes to dissolve a corporation, guess what happens?

By the time one partner is asking for a divorce, the other has seen the writing on the wall anyway. At that point, even if it started as one-sided, by the time it hits the courts it's usualy mutual.

[Love as Insanity]

You know how wills like to use the phrase "sound mind and body" to try to establish that the will is valid? Seems like most marriages fail on that "sound mind" description. NO ONE who is marrying for love is of sound mind. So when that frame of mind changes, it seems obvious that the marriage contract is invalid, simply because when the parties entered into it, they were not of sound and rational minds.

In other words, a marriage contract is valid only as long as both parts are NOT of sound mind, are in love, and have no desire to challenge the contract. Once the insanity of love disappears, any challenge by one of the parties should be upheld.

I can't see how anyone would support a lifetime contract made by the mentally incompetent.

[kmw]

SixSigma,

I don't think I was blaming religion here per se, but rather abstinence-only dogma.

It's a well-know fact that those who get married under the age of 25 have the highest rate of divorce. And most people who get married that young do so because they believe sex outside of marriage is a sin. Later they find out they didn't have enough in common to keep themselves together when the euphoria died down.

I'm not blaming religion for the break-up, I'm blaming dogma for not allowing people to find more things in common that just sex.

I've seen this happen more times than I have digits on my extremities.

[kmw]

Once the insanity of love disappears, any challenge by one of the parties should be upheld.

If two people discover that the only thing they ever had in common was sex, there's not really much to keep them together.

[kmw]

SixSigma sez:

Religion, in every statistic I've seen, is a stabilizing factor in marriage not a destabalizing (sic) one.

If you mean religion helps people make good on their promise "till death do us part" I'll give you that. I'm sure it at least gives the two motivation to search for common ground.

But how much better off are two people who hate each other, but won't divorce because God says it's a sin? The kids in that situation can see right through them.

[Brian]

R C writes "Well, marriage is a contract. Some contracts are terminable at will, without cause, by either party. Other contracts are terminable only for cause."

That's true, but even treating this as a purely contractual case and assuming the contract is not terminable at will, the issue is what remedies a court would grant in the event of a breach. It seems clear to me (and maybe some lawyers here can confirm or refute this) that one thing the plaintiff would not get is specific performance (i.e. forcing the breaching party to remain the spouse of the non-breaching party).

For example, take the case of a personal services contract: say a bar owner hires a band which then refuses to play. The owner can recover money damages and perhaps prevent the band from playing at a competitor's bar, but cannot force the band to play at the owners bar even if the contract was not terminable at will.

So the issue, even in the contractual case, is one of possible compensation but not requiring someone to stay married who, for whatever reason, now wishes otherwise.

[pococurante]

So the petitioner should be financially penalized?

[jUsTheFActs]

Love as Insanity at February 28, 2005 06:45 PM

that's some good logic, will be plagarizing that for future use. under the guise of educational / public domain no monetary compensation will be forth coming.

[Brian]

pococurante: "So the petitioner should be financially penalized?"

I wasn't really taking a strong position on the issue of whether or not that is a good policy. I was simply pointing out that even if we were to assume that a contract was not terminable at will that the result would not be a compelled continuation of the marriage.

However, given the assumption that the parties had agreed to a contract and that it was not terminable at will but only for some cause, then it doesn't seem unreasonable to me that an action for breach of promise might be available to the aggrieved party.

[Eric the .5b]

Well, marriage is a contract. Some contracts are terminable at will, without cause, by either party. Other contracts are terminable only for cause.

While it would be sensible to treat it that way, marriage is generally handled in law as a special, legal status for two eligible people that has one-size-fits-all properties, not an individual contract. Hence, I think, a lot of the legal complications around it.