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Eduardo Moisés Peñalver June 6, 2010 - 11:32am
No doubt he has a traditional prenup too. Check out the photo. Ewwww.... (HT Glenn Greenwald)
What is the social balance sheet on contemporary society's more permissive attitude toward divorce and remarriage: overall, has it been more or less of a blessing than the old attitudes?FWIW, I believe that there is still quite a bit of residual stigmatizing of divorce.
William's comment is quite astute: what we call traditional marriage is anything but. Appeals to traditional values are really often just appeals to majoritarian values, which are assumed to be traditional whether they really are or aren't.Jim, whether we like it or not, the result of "no divorce" rules in other modern societies, like Ireland, has often resulted in a high level of "non-marriage" to avoid being in a position of not being able to get divorced if you want to. Laws might affect but they hardly dictate social mores.
"whether we like it or not, the result of no divorce rules in other modern societies, like Ireland, has often resulted in a high level of non-marriage to avoid being in a position of not being able to get divorced if you want to."I'm not certain it's such a direct cause-and-effect, though, Barbara. In the US, with no-fault divorce widely available and widely used, there are also high levels of 'non-marriage'. I think something else is at work with regard to that sort of deterioration of marriage.But I'm interested in whether we're better off or worse off as a result of the lowered bar for divorce. I admit it's not clear to me - seems a somewhat mixed picture.
I tend to be leery of legal "solutions" to "fix" moral problems like abortion and divorce, though I am an enthusiastic supporter of divorce arrangements that stipulate children live in the family home, and the divorced parents be the ones to move in and out of the home when it's their turn for custody. I see too many kids at my son's school who carry duffel bags around with most of their worldly possessions in order to satisfy custodial arrangements that leave them living like gypsies. These kids also often lose the family pet when they have to move in with one or another parent in new digs. Or they change schools and lose track of friends. In short, they're denied some of the support that would help them through.The Church could do more to assist couples in trouble, but most Catholic columns I read about marital difficulties tend to end up with candlelight dinners and putting oomph back in sex. It's utterly puerile.Retrouvaille tries to help couples communicate better, but the time commitment and infrequency of the program make it inaccessible for many.There's individual counseling, which priests and deacons try to do, but a lot of that tends to be reminders about what Catholic marriage is supposed to be rather than actual help or advice.That Catholics divorce at the same rate as everyone else doesn't speak very well to the Church's efforts to help married people stay together.But that's a whole other topic, I guess.
Jim--In what sense is the picture "mixed"? What significant benefit has accrued to society from easy divorce? The harms are all too obvious.I would like to see both divorce harder to obtain, with the state as gatekeeper, and marriage harder to obtain, with clergy as the gatekeeper.
"What significant benefit has accrued to society from easy divorce? "What I had in mind is it provides a legal and orderly exit from really bad marriages.That is not to say that all divorces are good, for the parties, their children or the community. But in at least some instances, they're less bad than the alternatives.
"I would like to see ... marriage harder to obtain, with clergy as the gatekeeper."The clergy do (or are supposed to do) some due diligence in this respect. This is why they spend time with the couple. In the Chicago archdiocese, we also require that the couples take a test (although we're not supposed to call it a test) called FOCCUS that is designed to help the couple identify areas of marriage that may need to be addressed before the wedding (e.g. a big disparity in attitudes toward money, which is a big cause of marital strife). But the clergy are not very good at predicting the future. If the clergy see clear problems in the offing, they can refuse to officiate, and/or refer the couple to counseling - a recommendation that the couple may or may not take. If for some reason a member of the clergy refuses to officiate at the wedding, there is nothing to prevent that couple from taking their business elsewhere - e.g. simply going in front of a judge. Are judges also to be gatekeepers?
Jim--Yes, actually, I would like judges to be gatekeepers, at least in an ideal world. Since the state has a vested interested in marriage, it seems to be judges have the authority, and the obligation, to exercise discretion of when the will/won't officiate. I know that's very unlikely to happen, which is why I think it's more feasible for the clergy to exercise that authority. As you note, that's not foolproof either, but every little bit helps. As someone noted before, the real answer is for society to demand it, like we once used to.
The noton of making it harder to get married has been floated for a long time. I understand how and why clergy can gate-keep, but I'm not sure how a judge could assess marital readiness any better than a priest/deacon. Where would the money come from for this gatekeeping process?And if you make the gate harder to open, might some people just decide to forego marriage, shack up, and start having kiddies? Which makes it even more difficult for women to track down their former partners and get them to pay child support when Daddy leaves the nest. (Divorce, at least, requires legal dissolution of a marriage and provisions for spouses and issue.)You could make it a crime to have a child out of wedlock, something I used to think would be a good idea. But then you'd drive up the abortion rate.Forcing people to pay a heftty, progressive divorce tax might be a deterrent. If the parties filing for divorce had to pay, say, an additional 15 percent of their joint annual income to friend of the court/child welfare, that would at least put some $$ where staff and efforts that, in large part, deal with the fallout of divorce and are abysmally underfundedBut I'm not sure there is a legal solution for human stupidity when it comes to love, lust and marriage, Mark, much as I'd like to think there is.
I believe the Catholic view of marriage is that marriage (as the church defines it, of course) is a natural right to which all humans are entitled. I'd think the notion of clergy and judges acting as gate-keepers and barrier-erectors runs counter to this view. The default position is 'So you want to get married? We'll assist you, as long as there is no compelling reason to witthold cooperation (e.g. you are already married to someone else).'
The 6 months preperation/waiting period has been part the Church's gate keeping role. Catholic Sacramental marriages have declined almost 50% in the last two decades. Even the Pope commented yesterday that people are avoiding marriage. [see Allen NCR]
"The 6 months preperation/waiting period has been part the Churchs gate keeping role. "Hi, Ed, I agree (although I'm not certain that "gate keeper" is the right description - but it does seem too long to wait to a lot of young couples).. I was commenting in light of Mark P.'s desire that the clergy make marriage harder to obtain.
Eduardo Moisés Peñalver is the John P. Wilson Professor of Law at the University of Chicago Law School. He is the author of numerous books and articles on the subjects of property and land use law.
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