With no fault, there's no sanctity

George Jonas, National Post  Published: Saturday, December 08, 2007


When I came to Canada over half a century ago, divorce was hard to get. The law reflected the idea that marriage was for life, with adultery being the only ground for divorce, or just about.

As some people nevertheless wanted a divorce, supplying "evidence" of adultery turned into a mini-industry.

The "witness" was usually a private detective, offering the divorce court a staged snapshot of the ostensible adulterer and a so-called "correspondent" in a compromising situation. It was considered a classy gig. Correspondents weren't necessarily hookers, and even professionals were on their best behaviour. One acquaintance supported herself through medical school by offering her services as a correspondent for something like $50 a shot. ("Well, I stayed in the skin business," she said some years later when she became a resident in dermatology.)

It was rare for a putative adulterer to actually have sex with a correspondent, but it did happen once in a while. One customer explained: "Well, I had to have sex with her, didn't I? Otherwise I would have committed perjury."

Everyone committed perjury, of course, for it was all a charade. The parties were lying and the judges knew it. Still, by playing ball on the field of hypocrisy, the participants (with apologies to La Rochefoucauld) obliged vice to pay tribute to virtue. They upheld, without necessarily realizing it, the sanctity of marriage.

As the Pill ushered in the sexual revolution of the '60s, contagion became an epidemic. Marriage's traditional sentinels and bulwarks started appearing stodgy, fatuous, even barbaric, as divorce spread from moneyed and bohemian classes to the suburbs.

Coincidentally (or not) with the rise of medical technology, came the rise of feminism. With the reduced risk of pregnancy and venereal disease (AIDS not yet being on the horizon) came further questions.

What was wrong with being sexually active? Wasn't the family a kind of patriarchal institution anyway? Wasn't it a sort of antediluvian macho saga, the story of hairy males grunting and throwing their weight around, abusing their wives and daughters within white picket fence prisons? As for marital wrongs, such as adultery, they were a joke. Putting in place draconian divorce laws, then closing our eyes to let everyone do end runs around them with nubile correspondents and private dicks, was childish and uncivilized.

When the changes came, they were rapid. From essentially no divorce in 1956, the year I came to Canada, the law progressed to no-fault divorce by 1986. Or regressed, if you take another view.

Within a single generation, from essentially not permitting spouses to dissolve a marriage except for sexual misconduct, Canada, and much of the West-ern world, went to a virtual invitation to spouses to do so for any reason. (Save, perhaps, for sexual misconduct. Expecting sexual fidelity was considered too uptight for females and too chauvinistic for males.) By 1982 in most jurisdictions spouses could petition for the dissolution of their union on the simple basis of fait accompli. Since they walked out of the marital home a year (or three years) ago, they were now entitled to a divorce--by return mail if possible.

And the goddess Justizia said, fine. My blindfold is at the cleaners, but don't worry. Have a no-fault divorce on me.

By the mid-1980s the law would let anyone rectify a marital mistake. True, a man would have to pay for his mistake, while a woman would usually get paid for hers, but otherwise divorce became as easy as sneezing. It was another matter whether easy or "civilized" divorce was an unmixed blessing.

I wrote a novel contending it wasn't. Final Decree appeared in 1981. It has had five editions since.

If the aim was to take the fight out of spousal conflicts, replacing "fault" in divorce with "need" didn't achieve it. Need turned out to be capable of being just as hotly contested as fault used to be. Yet by saying that in marital disputes we take into account only people's needs, not their conduct, we couldn't avoid saying we didn't care if they kept or repudiated their marriage vows. Which rendered marriage vows meaningless. No-fault divorce turned marriage into one of the most inconsequential arrangements into which two humans could enter, something midway between going to a high school dance and setting up a partnership to market designer jeans.

What next? For marriage to retain any vestige of being a solemn, sacramental union of two beings for better or worse, divorce would have to retain some residue of being a painful, wrenching, potentially deadly experience, somewhat like the separation of Siamese twins. The choice, as always, is between civilized marriage and civilized divorce.

Models? For civilized unions, research the lives of Victorians. For civilized divorces, observe a troop of baboons.