Today we will take a few minutes to show a little appreciation for an important right in Western society – the right to divorce. It is important to celebrate this right lest we risk losing it amid all the social ills divorce has evoked. Advocates of covenant marriage believe that stricter marriage contracts are the answer, but the empirical evidence does not support that claim.
In 1969, Ronald Regan, then Governor of California, signed a billing into law giving individuals in that state the right to divorce without the consent of their spouse. By the early 1980s nearly every state of the US had adopted similar no fault divorce laws relieving the unhappily married of the responsibility to prove adultery or infidelity in order to obtain a divorce.
Economists Justine Wolfers and Betsey Stevenson, in a 2006 paper, showed that these legal changes had significant impacts on the quality of life of women. Taking advantage of in state-by-state variations in the time in which these laws were put into place they found that freer access to divorce brought with it an 8 –16% decline in female suicide, a 30% decline in domestic violence and 10% decline in the murder rate of women.
You may argue that these benefits to unilateral divorce laws come at significant costs – hardship for children and female poverty, just to name two – but that would only be true if the change in divorce laws increased the rate of divorce and that has not been proven. In fact, the best evidence suggests a very small positive effect on divorce rates only in the ten years after divorces became easier to obtain. And even then, that effect was only among those who were married before the laws were put in place.
The explanation for why easier access to divorce has not increased divorce rates is simple – men and women enter into marriage more cautiously when they know that divorce is easier to obtain. This is because while the laws may have made divorce easier from a legal standpoint, they have not made marital dissolution emotionally or economically painless.
It is this fact that explains why women marry later in life when it is easier to divorce.
A second explanation, which also explains the fall in domestic violence and suicide in states that support unilateral divorce, is just knowing that your spouse can divorce you without your consent encourages married individuals to treat each other better.
So no-fault divorce laws have the power to increase the quality of marriages, even if they don’t increase the number of marriages.
So why, given the benefits that no-fault divorce has wrought, and the lack of evidence that it raises the rate of divorce, would any state in the US allow an individual to sign away a right that was granted to protect them?
I can’t answer that question, but thanks to recent empirical research I can say something about how legally enforceable covenant marriages have impacted the marriage markets in the three states that enforce them: Louisiana, Arkansas and Arizona.
Covenant marriages are an opt-in marriage contract in which the two individuals involved can only obtain a divorce only if they can prove adultery, domestic violence, abandonment or if their spouse has been charged with a felony that came with jail time. Anecdotal evidence suggests that even when abuse has been proven judges strictly enforce separation periods of up to two years.
The purpose of a covenant marriage is to increase the cost of divorce, significantly, and as a result give parties an incentive to stay in a failing marriage. If women are lower wage earners than men, or are out of the workforce all together, then the imposition of these costs falls disproportionally on women making it difficult for them to leave a bad marriage. That part of the arrangement is significant since in the majority of divorces it is the wife who wants the marriage to end.
A recent book that explored covenant marriages finds that they are just over half as likely to end in divorce as a no-fault marriage. They find, however, that if they compare individuals in covenant marriages with similar people in no-fault marriages (i.e. white, better educated than average and more likely to be religious) they find very little difference in divorce rates. Also since covenant marriages only became available between 1998 and 2002, and given the two-year waiting period, there is bound to be a lag in covenant divorces compared to no-fault divorces (the data for the book was all collected before 2006).
What this says is that covenant marriages are not less likely to end in divorce despite the fact that they make divorce more expensive.
A new paper looks at covenant marriages and finds that only 1% of couples opt into covenant marriages. A surprising large number of those people are marrying for the second time – 31% of men and 30% of women. Despite the suggestion that the decision to enter a covenant marriage is religious, almost as many covenant marriages are performed in civil ceremonies as no-fault marriages – 56%.
I understand that some people in religious communities would choose a marriage contract that enforces their beliefs. It isn’t clear, though, why the court system should play a role in enforcing those religious beliefs. But perhaps this is something that is simply beyond me given that I live in a country that believes in the separation between church and state (i.e. Canada).
The more interesting group of people choosing covenant marriage is those who are on their second marriage. The paper I just mentioned tests a theory that covenant marriages plays a role in allowing men and women to screen out any potential marriage partner who is not fully committed to marriage. If I had been married before and my former spouse had been able to get a unilateral divorce despite my desire to stay in the marriage, then I can see why this would be an appealing option for people remarrying.
That doesn’t mean those marriages are any happier and, as I have said, it doesn’t mean they are less likely to end in divorce.
While the number of states that allow covenant marriage is few and the number of marriages in those states tiny, there have been calls for covenant marriage options in other states. Divorce is costly, not just for the individuals involved but also for society. Of course we would like to see an end to high divorce rates but a return to at-fault divorce is just throwing the baby out with the bath water.
Stevenson, Betsey and Justin Wolfers (2006). “Bargaining in the Shadow of the Law: Divorce Laws and Family Distress.” Quarterly Journal of Economics, Vol. 121 (1): pp. 267-88.
Felkey, Amanda J. (2011). “Will You Covenant Marry Me? A Preliminary Look at a New Type of Marriage.” Eastern Economic Journal, vol. 37 (3): pp. 367-89.
Mechoulan, Stephane (2006). “Divorce Laws and the Structure of the American Family.” Journal of Legal Studies, vol. 35 (1): pp. 143-74.
Covenant marriage: the movement to reclaim tradition in America By Steven L. Nock, Laura Ann Sanchez, James D. Wright. Rudgers Press 2008.