Contractual Considerations of No-Fault Divorce

      Two authors, Thomas F. Farr and Hilary Towers, write in First Things on December 8 that it is time to challenge no-fault divorce. In that article, they lay out a brief history of no-fault divorce, and have suggestions to combat the easy-divorce mentality, including compiling lists of attorneys and legislators who will "defend those who are divorced against their will." They also identify two "forces at work" which contribute to the "secularist divorce industry," namely that many judges are implicit in the industry itself, and that many judges are proponents of the "privatization" school, whereby religious ideas are relegated to a back burner as being "irrational and unconstitutional."

      I should note first that I agree that no-fault divorce is a major problem in our society, often leaving (unwilling) spouses and (willing or unwilling) children abandoned. I would add that, in addition to the hard case of the abandoned spouse, the authors should also consider the myriad cases where the spouses mutually agree to divorce. Though perhaps fewer, these cases are no less an instance of the easy divorce culture. With that said, in reading through the post, one sentence in particular struck me, and it is indicative of an additional area of discussion that must occur in concert with questions of no-fault divorce, particularly within the Catholic community, but also within society at large.

In the early part of the post, the authors make this statement:

Abandoned spouses are simply left in the lurch. If one spouse decides to move on, there is very little the other can do to stop it. In America, the only contract that is utterly unenforceable in law is marriage.

How we treat contracts, and the nature of contract in America, is one of the missing "forces" which the authors, and anyone involved in this issue, must consider at greater length.

      A systematic history of contract is beyond the scope of this post, but a few matters might be worth considering. First, the Catholic Church (at least) has recognized the dual nature of the marriage bond in both sacrament and contract. In the encyclical Arcanum, Pope Leo XIII stated:

Let no one, then, be deceived by the distinction which some civil jurists have so strongly insisted upon - the distinction, namely, by virtue of which they sever the matrimonial contract from the sacrament, with intent to hand over the contract to the power and will of the rulers of the State, while reserving questions concerning the sacrament of the Church. A distinction, or rather severance, of this kind cannot be approved; for certain it is that in Christian marriage the contract is inseparable from the sacrament, and that, for this reason, the contract cannot be true and legitimate without being a sacrament as well. For Christ our Lord added to marriage the dignity of a sacrament; but marriage is the contract itself, whenever that contract is lawfully concluded.

      Considerations of the exact nature of the interaction of the sacrament and the contract (if they can be so divided) aside, the idea of a contract is bound up with Christian marriage. Showing perhaps the importance of the idea to Christian thought, the Catholic Encyclopedia has an entry on contract, where it states that, in order to be valid, a contract must have:

• consent of the parties,

• contractual capacity in them,

• determinate and lawful subject-matter, and

• a lawful consideration.

     That particular article also has a word on performance of contract, which is where we may find an explicit difference with the sacramental contract:

A valid contract imposes on the contracting parties an obligation of justice to act conscientiously according to the terms of the agreement. They will be bound to perform not only what they expressly agreed to do, but whatever the law, or custom, or usage prescribes in the circumstances. The obligation arising from a contract will cease when the contract has been executed, when a new one has been substituted for the old one by the free consent of the parties, when the parties mutually and freely withdraw from the contract. When one of the parties fails in what he promised, the other will, as a rule, be free. 

The difference, of course, being that in marital contracts, the parties are not indeed free to mutually withdraw from the contract. However, here, I wish to focus on the idea that the parties "are bound to perform not only what they expressly agreed to do, but whatever the law, or custom, or usage prescribes in the circumstances."

      It was longstanding tradition in civil and common law for a court to order the enforcement and fulfillment of contracts. The phrase pacta sunt servanda, promises ought to be kept, was a long-standing norm in contract law. One commentator noted that in the East:

The gods were, so to speak, the guarantors of the contract and they threatened to intervene against the party guilty of a breach of contract. So it came to be that the making of a contract was bound up in solemn religious formulas and that a cult of contracts actually developed. Hans Wehberg, The American Journal of International Law, Vol. 53, No. 4 (Oct., 1959), pp. 775-786.

The same author also noted a similar development in the West, namely that under the Romans:

[T]he common interest in a regulated commerce was added to the religious motive. The juridical sense of the Romans recognized that a well-regulated trade was possible only if contracts were kept. Then, as earlier, contracts were considered as being under Divine protection.....Later, the Fathers of the Church set forth in detail the notion of the sanctity of contracts. Thus St. Augustine (354-430), for example, taught that one must keep one's word even with one's enemies. The same idea is to be found in the Decretum Gratiani...

    It is clear from this commentator and many others that contracts were regarded as things to be kept, and there were very limited circumstances under which one could refuse to keep a contract. A court would be expected to force the parties to adhere to their contracts. After this time, there later grows up a different in regard to remedy for breach of contract. In 1947, J.B. Gebhardt, notes a split in the law between English Law and European (specifically German) law:

Suppose that (a) in an English contract, (b) in a German contract (conforming to every rule as to form and essential validity), the seller S has promised the buyer B to deliver x tons of corn on January 1, 1946, and that he did not deliver....The English buyer has no other claim than to receive damages for non-delivery, i.e., the amount of money which is equivalent to the damage flowing directly and naturally in the ordinary course of events from the non-delivery.... Specific performance is expressly excluded (even if it were not, B would not have the power to realise his interest, since this remedy is essentially discretionary). Very different in German law. B's primary right is for specific performance. After he has obtained judgment against S ordering him to deliver x tons of corn to B, B can charge the bailiff with searching S's premises for corn and handing over to B any amount of it up to the required quantity.

This difference in law was noted by none other than Justice Holmes on pg. 301 of his work "The Path of Law." He notes that, in regards to specific performance of contract:

This remedy is an exceptional one. The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass. In every case it leaves him free from interference until the time for fulfilment has gone by, and therefore free to break his contract if he chooses.

Thereafter, this idea would mature fully into the idea of "efficient breach," where breaching contract should be expected and encouraged, summarized as follows:

Efficiency theory suggests that promisors who breach increase society's welfare if their benefit exceeds the losses of their promisees...Although these positions conflict with the notion of pacta sunt servanda and with the moral view developed above, they do make some sense. People generally enter into commercial contracts and routine labor contracts for purely economic reasons and can therefore be fully compensated with damages for injuries caused by breach. Linzer, Linzer, On the Amorality of Contract Remedies-Efficiency, Equity, and the Second Restatement, 81 Colum. L. Rev. 111 (1981), quoted in McNeil, Virginia Law Review, Vol. 68, No. 5 (May, 1982), pp. 947-969.

Thus, more or less, we find ourselves with the modern American legal (and I might add, societal) idea of contract. The majority of courts award monetary damages for breach of contract, and most people expect to be able to get out of contracts through such payment. It is even the case that many contracts build this idea in, with terms such as prepayment of two additional months lease to break a rental contract.

      The perspicacious reader, having reviewed some or all of the foregoing, should have some idea where I am going. To be clear, while no-fault divorce is problematic, "fault" divorce was being undermined even before no-fault became the norm (through contrived adultery and so forth), and I would argue that the tenor of our culture in moving towards an efficient breach model of contract is largely responsible. The authors of the First Things article explicitly state that no-fault divorce reform attempts tend "to target financial equity among divorcing spouses, not the behavior that harms spouses and children, economically, morally and spiritually, such as abandoning a spouse for an affair partner." This is precisely what one would expect to find with efficient breach thinking permeating marriage contract law; that is, adjustment of damages, masquerading here as the post-divorce attempt to make one party "whole". Moreover, this is entirely in according with stripping morality out of contract, departing from pacta sunt servanda, and an "economic partnership" view of marriage. It need not require much further imagination to see that efficient breach of contract ideas are the bedrock of "no fault" divorce.

      What is necessary, I would argue, is an entire reformation in our thinking on contracts, infusing them again with moral purpose; letting our "yes be yes" and our "no be no." The authors discuss the possibility of solid marriage even among the poor. I agree, but until the poor and wealthy alike consider contracts as obligations to be kept, as moral bonds between the contracting parties, then marriage will always be "easily contracted, easily ended", and considered purely from an economic standpoint. But this thinking cannot extend only to marriage. It must be extended to all contracts, from credit cards to automobiles to home purchases to leases - these must all be infused with moral obligation and purpose, and considered as private law between the parties, as binding as any law of the state or Church, and therefore, not breakable when one party tires of the obligation or is unable to repay due to desires to spend money elsewhere. Exception should perhaps be permitted only for true hardship or death. And contract must be no respecter of persons - contract should be kept whether one is rich or poor, and regardless of culture. As St. Thomas Aquinas noted, with certain very limited exceptions:

Honesty demands that a man should keep any promise he makes to another man, and this obligation is based on the natural law.