Vow for now.

Mr. Plunkett, a practicing attorney, is vice dean of the Southern California Institute of Law and an adjunct professor of the University of LaVerne School of Law. He is happily married (as that term is currently understood) to his original wife.

MUCH has been written in the last twenty years about the state of marriage. These commentaries tend to fall into two opposite camps: those which advocate or celebrate the redefinition of matrimony and those which deplore its decline. Two decades ago, the former clearly predominated; the latter are more common today. To my knowledge, however, none of the commentators has stumbled upon the fact that marriage was abolished in the United States in the 1970s. That status which we call "being married" today is nothing of the kind; it is to real marriage what the Holy Roman Empire was to the real Roman Empire, something that borrows the name of a dead institution to give itself legitimacy.

According to Black's Law Dictionary (1968), in marriage "a man and woman . . . mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and wife." That quotation summarizes definitions set forth by precedents and authorities going as far back as such things are preserved. In simple terms, the essentials of a marriage are: 1) a man and woman 2) in a state of union 3) for life. There are variations from time to time and from society to society. In polygamous cultures, for instance, one man can have many marriages, but each is a one-man-and-one-woman contract.

The "for life" part of the definition has been more or less elastic since at least Roman times. But the promise to be married "until death do you part" was, until the establishment of no-fault divorce, binding on at least one of the parties as long as the other remained blameless. Where women were chattel, the wedding vow was breakable by the husband but unbreakable by the wife. Where a tribeswoman could turn out her husband at will, the husband was bound to stay with the wife until she either threw him out or did something wrong that would justify his leaving.

It was established long ago by the courts that alleged marriage vows which did not contemplate a lifetime union did not create a marriage. Saying "I promise to be your wife for five years" did not make someone a wife for even one second. With even stronger logic, a vow to be husband and wife "as long as we want" was no marriage vow. A purported marriage ceremony established a marriage if and only if at least one of the participants believed that they were making a commitment to which they would be held for life.

What is this thing we currently call "marriage"? Most wedding ceremonies still contain the requisite language about "forsaking all others," remaining together "for richer for poorer, in sickness and in health, until death do you part." But these words have no basis in reality. Under current law the bride and groom are in fact promising to be husband and wife only until one of them doesn't want to any more. The lifetime commitment which defined marriage is gone.

"You can't stop somebody from getting a divorce if they really want one." That is the first thing an ethical lawyer today tells someone who is trying to avoid a divorce. Divorce for the asking is the rule. Even if a state required more, that could easily be gotten around by establishing a brief residence in a state that wasn't so picky.

In 1969, when California Governor Ronald Reagan signed the nation's first no-fault divorce law, he and the legislature talked as if they were merely reforming the existing system by establishing a single humane standard for the dissolution of marriage. Supposedly, they were simply making it easier for those trapped in hopeless unions to fix their lives by getting out. It was hailed as a progressive reform and quickly imitated by almost every other state. It was a noncontroversial act, buried in the news by the Vietnam War and other concerns. Yet signing the no-fault divorce law may have been the most important thing Reagan did in his entire political career. To understand why, we need to review the history of divorce.

Anglo-American jurisprudence once considered marriage a sacrament, or at least an unbreakable vow. While a marriage might be annulled in circumstances which struck at its validity, such as concealed impotence, a marriage, once valid, was set in stone. This was true even if both spouses desperately wanted a divorce, because in making their marriage vows they were deemed to have made a covenant not only with each other but also with God and society. As late as 1900, fewer than one thousand divorces a year were granted in all of Britain.

The iron rule against divorce softened with the adoption of the principle that a person who was grievously wronged by his or her spouse should get relief from the courts and that this relief could include the right to get out of the marriage. When people "sued for divorce," they actually were filing a suit against the other spouse, just as if they were suing for personal injury or breach of contract. To get a divorce, the petitioner had to show that the respondent was guilty. If guilt was found, there would usually be not only a divorce but damages in the form of alimony and loss of property.

The grounds for divorce, primarily adultery and desertion, were originally narrow and directly related to the marriage contract. Furthermore, divorce was granted only when an innocent party sued a guilty one. If, for instance, the wife and the husband each proved that the other had committed adultery, the couple had to stay married, because the guilt of one spouse canceled out the guilt of the other. If you watch old movies, you might hear a character say, "My wife won't give me a divorce." This meant that the wife wouldn't go along with his seeking a divorce and that she refused to seek one herself based on whatever grounds she had. Under the fault divorce system, the innocent spouse had an absolute right to keep the marriage together.

I'm OK, You're OK 

THE idea of divorce as a lawsuit by a good spouse against a bad one eroded over the decades as a result of misuse and the "reform" it encouraged. There were two major types of misuse. First, one party let the other trump up a phony adultery or desertion purely to meet the letter of the law. Second, courts stretched the letter of the law to absurd lengths to accommodate the parties -- for example, by ruling that trivial incidents qualified as "extreme mental cruelty." But this worked only if the husband and wife were in cahoots.

The misuse of existing divorce law involved blatant hypocrisy and frequent perjury, but it did not strike at the essence of marriage as a lifetime commitment. So-called reform of the divorce laws, inspired largely by distaste for collusive divorce, did far more damage. By creating new grounds such as "incompatibility," legislators sought to get away from the idea that you could end a marriage only if one spouse was bad and the other good. These attempts to graft a nonfault ground onto the traditional system of suing for divorce led to some odd legal decisions. Then came the idea of no-fault divorce.

By 1970, among the intelligentsia, the idea that marriage was a sacred commitment was as dead as Queen Victoria, and the idea that marriages should be preserved for some reason independent of the happiness of the couple was comatose. The belief that people should not be forced to stay in bad marriages was firmly established among our policy- and opinion-makers. No-fault divorce fit this new dogma perfectly. Instead of inquiring into whether the husband or wife was bad, the courts would inquire into whether the marriage was bad. Instead of suing for divorce, one would petition to dissolve the marriage. Issues of fault and blame would be eliminated.

Had the first no-fault divorce law been presented as one that would allow either spouse to dissolve the marriage at his or her whim, it almost certainly would have been defeated. It appears that everybody whose opinion counted believed that its sole effect would be to make it easier to end hopeless marriages. After all, the law's main innovation was to allow the dissolution of marriages afflicted with "irreconcilable differences which have led to the irremediable breakdown of the marriage." Few, given the dominant ideology of the time, could oppose divorce in that situation.

The people who believed that the law would be applied to end only truly hopeless marriages were incredibly naive. The courts were ill equipped and ill disposed to inquire into whether differences were "irreconcilable" or whether a marriage had suffered an "irremediable" breakdown. In fact, the mere filing of a petition for dissolution of marriage was deemed sufficient. The inquiry into whether the grounds for dissolution existed was in practice limited to the petitioning party's reciting of the statutory language verbatim or checking a box on a form, which did the same thing. It was divorce for the asking, pure and simple.

This was the abolition of marriage. Whatever words were used in the ceremony, weddings ceased to be occasions where a man and woman mutually engaged to live their whole lives together as husband and wife. They became occasions where a man and woman agreed to call themselves husband and wife until one of them decided otherwise. In the late Sixties, some intellectuals advocated "trial marriages," in which people would try each other out before committing to real marriage. This talk faded as it sank in that every marriage was now a trial marriage.

The wedding vow had devolved from being the most serious and solemn oath a typical person ever made into being less than a contract. An oral contract made with a 2-year-old is more binding than the contract of marriage; it at least binds one party, the adult. A marriage contract is binding on no one. If Kim Basinger says "OK" when asked by a producer if she will star in a movie and then backs out, she has made herself liable for millions of dollars in damages. If she solemnly swears in church to love, honor, and, forsaking all others, keep only unto that producer till death them do part, she is free to break that promise at any time without penalty.

Many people who have gone through divorce or seen others do so will object to the phrase "without penalty." They know the dissolution of marriage carries with it great potential expense and financial loss. There's the division of property, child support, and possibly even spousal support.

Those may seem like penalties, but they are not. For one thing, they represent nothing more than the state's effort to dissolve the marital partnership equitably. A divorcing man may lose his house, but it is not as a penalty; it is because the house was only half his all along. Child support is only the discharge of the continuing obligation of supporting one's child, an obligation that would have existed even if there had never been a marriage. Spousal support is a safety net for a spouse who was out of the labor force.

The Just and the Unjust Fella

MORE TO the point, these things are not penalties because they fall equally hard on the guilty and the innocent. The spouse who broke the promise to live together as husband and wife is on an equal legal footing with the spouse who followed it faithfully. The fact that one spouse broke his or her marriage vows has no bearing on his or her rights to property, support, etc. No-fault means no distinction between the victim and the wrongdoer.

Couples go into marriage today figuring that if they don't like it they can always get a divorce. Though some still talk as if they are definitely in it for life, it is disturbing how many say things at their weddings like, "We'll see how long it lasts." People who talk as if their marriages are for life usually are greeted with comments like, "You might be one of the lucky ones," spoken in tones ranging from openly skeptical to patronizing.

Almost at the same time that the wedding vow was stripped of its essential meaning, the whole idea of marriage as a special estate was also being undermined from several other directions. "Palimony," the right of a nonmarital partner to seek marriage-like financial rights based on an express or implied contract, blurred the distinction between marriage and what was once called "living in sin." Another blow against marriage was the repeal of virtually all laws against adultery, cohabitation, and fornication, as well as all laws making a distinction between legitimate and illegitimate parenthood. This development was accompanied by the elimination of the stigma connected with all of these. These changes destroyed all real distinction between having sex or children in wedlock and having them extramaritally.

The idea that divorce should carry a stigma is moribund. In fact, divorce is more often applauded than deplored. When one of the two most popular advice columnists in the country ended her marriage after decades of telling others to stick it out, rather than outcry about her hypocrisy, there was much commentary about how this showed her "growth." The existence of commercial divorce congratulation cards shows how something which was once a subject of shame has become a cause for celebration for many.

About all that is left separating the wed from the unwed is the illusion that marriage still exists in a meaningful way and a dwindling list of benefits that are still reserved for married couples, such as family health-care insurance and joint tax filing. Even these are under attack, not by people who want to take them away from married couples but by people who want them to apply to nonmarital partners. These proposals have so much support because so-called marriage has deteriorated into a removable label, a ticket to certain perks.

Between the time that the belief that marriage was sacred fell out of fashion and the time that the thinking behind no-fault divorce took hold, the chief argument for keeping unhappy marriages intact was for the sake of the children. The term "broken home" was applied to a family that was missing a parent because of divorce; it was a sad word used for a situation that was universally deemed to be unfortunate.

Around the time that no-fault divorce was created, the term "broken home" fell out of use and was replaced by a plethora of happy euphemisms. In place of the old ideas about the importance of intact families were new ones about how a stable, traditional family structure was either unimportant or actually harmful to kids. The notions which supported the dogma that children could thrive in what had once been called broken homes ranged from the plausible but wrong, like the idea that stepparents could fully replace birth parents, to the plainly idiotic, such as the claim that children were better off when released from an unhappy marriage. The latter ignored the fact that unhappy marriages are unhappy for the parents, and the happiness of the parents is rightly less important to children than having both of their parents around.

After a generation of experimentation with single-parent families and all manner of stepdads, moms' boyfriends, and such, the results are in. Children from single-parent families are more than five times as likely to live in poverty, nearly twice as likely to need psychological help, and two and a half times as likely to drop out of school, get pregnant before marriage, abuse drugs, and commit crimes as are children from intact families.

Half of all marriages end in divorce. Four years after the adoption of the first no-fault divorce law, divorce passed death as the leading cause of family breakup. Every year more than a million children go through divorce and separation.

People who deplore the effects of single-parent upbringing focus on the booming rate of illegitimacy, all but ignoring the other half of the problem, the catastrophic divorce rate. In fact, the silence on the latter issue seems largely based on an unspoken assumption that divorce is like a force of nature, beyond human control.

Similarly, commentators who wax eloquent about the ill effects of unwed motherhood on teenaged mothers seem unaware of the ill effects of divorce on adults, especially women. The leading article on single-parent families, "Dan Quayle Was Right," by Barbara Dafoe Whitehead (The Atlantic, April 1993), treated divorce as a good thing for the parents even while making a convincing case for its ill effects on children. But the abolition of marriage has been a disaster for people of all ages.

Prisoner's Dilemma 

PEOPLE earnestly want commitment from their beloved, but it is no longer possible to have final commitment to or from anybody. You can devote your life to someone else, but the law and society give you no security against the other person's leaving and making all your effort pointless. People are rational; when they know this they will, for their own protection, hold back on giving love and making sacrifices. Knowing that they can be thrown away at any time and that divorce has become the rule rather than the exception has transformed married couples from partners in life's journey into players in a game of prisoner's dilemma.

When divorce was available only to a wronged party, a wife could see her husband through his hard times knowing that she could hold onto him through hers. A woman at the peak of her attractiveness could work full time while her husband went through medical school, knowing that he could not easily leave her when he was rich and she middle-aged. Now, he can take her at her best and leave her whenever a better offer comes along. So we have legions of discarded older ex-wives of now successful men.

There is nothing inevitable or immutable about the abolition of marriage. The divorce rate can be brought under control by mere mortals. Make it harder to leave a marriage, and more people will decide they can make a go of it after all.

Marriages should be dissolvable only by mutual agreement or on grounds, such as adultery, desertion, and criminal physical abuse, that clearly involve a wrong by one party against the other and that by their very nature constitute a violation of the marriage vows as they are traditionally understood. A husband or wife who faithfully performs his or her duties in the marriage should have the absolute right to insist that the marriage remain intact. The addition of "mutual agreement" to the traditional grounds for divorce eliminates the need for fraudulent, collusive divorces by preserving the right of couples to end a marriage in which they both feel trapped.

To properly re-establish marriage, we should also abolish the Reno-style quickie divorce. Even before no-fault, the divorce laws were made a mockery, at least for the rich, by the ease with which one could shop around for a favorable divorce jurisdiction. When divorces were hard to get in most states, everyone knew they could be obtained easily in Nevada and a few other places. This meant that the restrictive laws of 49 states could be undone by one. Federal legislation should require that the law of the state where the wedding ceremony took place be controlling on the issue of whether any particular marriage could be dissolved.

Much of the social pathology, moral breakdown, alienation, and rootlessness that afflict our society today can be traced to the abolition of marriage. These will remain with us until their cause is effectively dealt with. Of course, the first step toward re-establishing marriage as an institution is to recognize that it was disestablished in the first place. The next step is to change the laws that abolished it.