Until Death Do Us Part. Divorce and Related Domestic Law. Late 19th/Early 20th Century, Mid 20th Century, Late 20th/Early 21st Century. An example of the old law, and the old customs, being infinately superior to the current ones and a call to return to them.
Be subordinate to one another out of reverence for Christ.
Wives should be subordinate to their husbands as to the Lord.
For the husband is head of his wife just as Christ is head of the church, he himself the savior of the body.
As the church is subordinate to Christ, so wives should be subordinate to their husbands in everything.
Husbands, love your wives, even as Christ loved the church and handed himself over for hert to sanctify her, cleansing her by the bath of water with the word, that he might present to himself the church in splendor, without spot or wrinkle or any such thing, that she might be holy and without blemish.
So husbands should love their wives as their own bodies. He who loves his wife loves himself.
For no one hates his own flesh but rather nourishes and cherishes it, even as Christ does the church, because we are members of his body.
“For this reason a man shall leave father and mother and be joined to his wife, and the two shall become one flesh.”
This is a great mystery, but I speak in reference to Christ and the church.
In any case, each one of you should love his wife as himself, and the wife should respect her husband.
St. Paul, Ephesians, Chapter 5.
As the old phrase goes, fools rush in where angles fear to tread, and my commenting here is, I am well aware, completely foolish.
I know next to nothing about domestic law, and even less than that. I've never experienced any aspect of it myself personally, I don't delve into it regularly at work, but on odd occasion I, like every lawyer, must.
I don't like it when I have to.
When a civil litigator takes a look at domestic law, he often tends to be shocked. I was that way when I looked into the topic of grandparent's rights some years ago. The opponent was also shocked when I started treating the case like heavy duty civil litigation. What the heck? Well, the case ended up changing that area of the law after years of the domestic practitioners just doing the "well, that's the way we do this".
Not anymore.
Recently I've been looking at divorce law for a tangential reason, and once again I'm shocked and appalled.
Wyoming uses "no fault" divorce, like most states.
Or maybe it doesn't. More on that below.
No fault was the biggest insult to the law ever created and a knife to the gut of society.
20-1-102. Minimum marriageable age; exception; parental consent.(a) At the time of marriage the parties shall be at least sixteen (16) years of age except as otherwise provided.(b) All marriages involving a person under sixteen (16) years of age are prohibited and voidable, unless before contracting the marriage a judge of a court of record in Wyoming approves the marriage and authorizes the county clerk to issue a license therefor.(c) When either party is a minor, no license shall be granted without the verbal consent, if present, and written consent, if absent, of the father, mother, guardian or person having the care and control of the minor. Written consent shall be proved by the testimony of at least one (1) competent witness.
The remedies heretofore provided by law for the enforcement of actions based upon alleged alienation of affection, criminal conversation, seduction and breach of contract to marry, having been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrong-doing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases having resulted in the perpetration of frauds, it is hereby declared as the public policy of the State that the best interests of the people of the State will be served by the abolition of such remedies. Consequently, in the public interest, the necessity for the enactment of this article is hereby declared as a matter of legislative determination.
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- Breach of promise.
Breach of contract to marry, or as it was more often called, "breach of promise", was a unilateral broken engagement. The non-breaching party was entitled to receive damages that included the benefits were that were to be had from the marriage and specific injuries to the plaintiff, including humiliation and psychological injury.In the view of us moderns, this seems Victorian and quaint, but it was anything but. Prior to birth control, relationships between men and women were, we might say, deadly serious. While the social standards, based on Christian concepts and morality, meant that sex before marriage was frowned upon, and while it was also the case that a high percentage of people, particularly women, did not engage in sex before marriage, things began to break down when couples engaged and people knew it. This does not mean to suggest that people behaved like they do now, as they certainly did not.Engagement periods seem to have lasted a year or so, although there wasn't any set period. One period etiquette book provided:There are exceptions to the rules which govern engagements, as well as other things; but as in other cases, the exception only proves the wisdom and justice of the rule. There have been happy marriages after a few days' or even hours' acquaintance, and there have been divorces and broken lives after engagements which have existed for years. The medium, therefore, may be considered the best plan to pursue; namely, an engagement which is neither too short nor too long, but just sufficient to make a broad and easy stepping-stone between the old life and the new. The result of a very short engagement depends upon the strength and genuineness of character in the individuals, while the haste with which they have consummated so important a step says but little for their wisdom or prudence. A hasty and ill-advised marriage is a bad beginning in life. A very long engagement, on the contrary, is an eternity of that hope deferred which maketh the heart sick, and it is much harder for the engaged girl than for the engaged young man who is "a laggard in love". She has to wait usually, while he works actively, bringing himself into new relations, obtaining new experiences, and in many ways living a life which she can not share, and which is more than likely to interpose a barrier between their mutual sympathy and confidence, and cause them to drift apart from each other.Gems of Deportment and Hints of Etiquette, Martha Louise Rayne, Detroit: Tyler & Co., 1881.There was more to it than that, however. Close contact of this type was going to lead to something with some people. Therefore, with a broken engagement, the female participant would be potentially at least slightly tainted in some fashion, either regarded as "ruined" or regarded as an obviously difficult and unmarriageable person. There was a flip side to this, which we'll address below.Additionally, in an era in which women had limited career opportunities, getting engaged set a woman on a certain financial course whose sudden end could be devastating economically. It was assumed, naturally enough, that during the engagement she'd sworn off other suitors, many of whom would have moved on in the meantime. Indeed, amongst the very old even now you'll frequently read stories of very elderly "first loves" reuniting, showing that whatever went wrong early on had forced them into other paths, even if they obviously retained affection for each other.
- Seduction
The flipside of breach of promise, this tort sounds obvious, but in practice it was less so. The tort allowed an unmarried woman's father - or other person employing her services - to sue for the loss of these services when she became pregnant and could no longer perform them. We recently saw an example of this being played out on the Canadian World War Graphic History blog in an entry concerning Lieutenant Colonel Charles Flick.
As that entry noted, Flick and one Kate O'Sullivan engaged in some sort of sexual act. What occured isn't clear, but it seems pretty clear that Flick seduced Kate, or perhaps raped her. In any event, Flick, then an officer in the British Army, was sued by Kate's father. As the blog notes:
In June 1898, London tailor Daniel O’Sullivan sued Lieutenant Charles Leonard Flick of the Honourable Artillery Company “for damages for the seduction of his twenty-five-year-old daughter, Kate,” with whom Flick had had an illegitimate daughter. The above letter was entered into the court record by the plaintiff’s counsel. As a result of pregnancy and alledged assault, Kate O’Sullivan had been unable to assist her father’s tailoring work. The jury found in favour of the plaintiff for £150.Seem harsh (assuming it wasn't rape)? Well, it really wasn't. Kate, at age 25, was reaching the upper limit of her marriageable age at the time, and now she had a daughter to take care of without Flick. Whether Flick tried to make it right (which was common) by marrying her or not, we don't know They didn't marry, however. Mr. O'Sullivan was left, therefore, with the financial burden of his daughter, who could now no longer work, and his granddaughter as well.
While this may all sound pretty harsh, it reflected an economic reality that still exists. Seduction continues to exist as a legal principle, even if we don't recognize it. It exists in the form of child support laws, which achieve essentially the same thing, but through the partial intervention of the state. At the time, it was up to people to take care of this on their own, which was not a less just system.
Flick, by the way, went on to a career in the British Army, serving overseas, and ultimately in the Canadian Army. He was an opponent of Japanese internment in Canada, so no matter what his early story was, he wasn't entirely a terrible person.
- Alienation of Affection.
This occurred when someone interfered with the marriage, causing a spouse to lose affection, mostly often through seduction, but not always. Indeed, meddling third parties could be liable for interfering with a marriage, including objecting in laws or even clergymen. In the Wyoming case of Worth v. Worth, 48 Wyo. 441 (1935) a daughter-in-law suited her in laws on just such a claim, recovering the amount of $35,000 in damages. The damages in such cases were for emotional distress and mental anguish, shame, humiliation, and economic loss, including financial contributions toward the marriage and potentially punitive damages.
The elimination of this tort created a situation in which unrestrained interference in marriages can and frankly does arise. Amongst women, it tends to come up in terms of the "support" of female friends, many of whom have broken relationships themselves, or in some instances feel that a friend married beneath herself. I've seen this happen first hand, with the women who don't have to live the consequences harping on tehir friend to divorce.
The flipside of this is that men do the same thing, but it tends to be over other issues, with those issues often being sexual. In spite of they hypersexualized era in which we live, or perhaps because of it, it's frequently the case that couples enter a marriage badly damaged in this area and ultimately that impacts the woman much more. Women with multiple sexual partners before marriage are almost statistically incapable of living out their marriage. Women who have abused, on the other hand, tend to withdraw from the "marital debt" at some point leaving their husband's stunned. In that case, the men will tend to get the advice from their fellows that they should dump their wives for a more willing, and often younger, partner, or they'll simply begin to engage in adultery and excuse their conduct.
- Criminal Conversation
Criminal conversation was similar to Alienation of Affection, but involved sex, so the last item noted here had arisen.. It was the tort of sexual intercourse outside marriage between the spouse and a third party, with each act being a separate tort, and the liable party being the third party. Damages included emotional harm, mental suffering, loss of support and income, and loss of consortium.
Not surprisingly, this tort changed over time to something radically different, and it then allowed an unmarried woman to sue on the grounds of seduction to obtain damages from her seducer, if her consent to sex was based upon his misrepresentation.
The unifying thread in all of these is that they took marriage, and beyond that, the male female relationship extremely seriously. For want of a better way to put, they took sex very seriously as well.
One of the things that the Sexual Revolution proved was that people were incredibly naive about sex, but not in the way that the revolutionaries imagined. In fact, the pre revolutionary condition proved to be the wise one, as it grasped the nature of sex. While perhaps not the best way to set it out, we'll quote here an item from Quora, which is always a somewhat dubious source of anything, which was on a thread on whether premarital relations should be illegal, which in a few countries they still are. Some commentator noted:
Sex absolutely, deeply and irreversibly transforms
You
Physically, Emotionally, Mentally and Spiritually.
It transforms abusers and the abused,
It transforms actors in porn,
It transforms friends who do it casually,
It transforms one-night standers,
It transforms johns and the prostitutes,
It transforms gays and lesbians,
It transforms the masturbater,
It transforms viewers of porn,
It transforms people who only do it orally,
It transforms those who use protection,
It tranforms unmarried couples,
It transforms married couples,
Sex is a language of the body.
And it is a langualge that has a definitely fixed meaning.
It communicates an absolute message.
It says I AM YOURS, FREELY, COMPLETELY, FAITHFULLY and FRUITFULLY.
After sex, you will either be made or ruined
Physically, Emotionally, Mentally and Spiritually.
We can think that nothing in us has changed,
But we will never the same as before.
We can tell ourselves that sex is pleasurable and healthy exercise,
And that we will be worse off denying ourselves from the pleasure it gives.
But, we will still have trivialised the message our body has communicated.
When we add meanings to the fixed message of sex,
The message of our mind is not aligned with the fixed message of our body.
We are no longer integrated. We have lied.
Sex in forms that detract from its fixed message is an abuse of the body.
It is cripplingly addictive, simply untruthful, absolutely unfulfilling and very ruinous.
If you have not done it. Don’t begin.
If you have done it, learn from this and do your best to cease.
Be hopeful. Every Saint has a past. Every sinner has a future.
Remember, the purpose of sex can only be properly fulfilled within and after
Marriage.
Written almost like a poem, the writer is absolutely correct. Psychologically, biologically and chemically, sex changes everything. It binds the people, whether they wish to be or not.
Indeed, in the area of odds and ends, one of the commentators on Catholic Stuff You Should know once noted this in that he was with a group of friends who wished that he could still see women the way he had, before. He remembered having done that, but the change was too profound to allow him to do again. That's likely nearly universally true, at least for men.
On a scarier note, in an interview I heard some time ago from a very orthodox Catholic source, a person who assisted with exorcisms noted that in some cases the possession had come about during intercourse, the metaphysical nature of it being such that license existed due to the marital act for the possession to transfer from one person to another.
Now, people like to wink and note that even amongst members of Apostolic faiths, premarital sex is common. But prior to birth control, it was much less so. It was not, however, nonexistent. Part of the breach of promise recognized this. But part also recognized that once couples head down this road, there's no real coming back, ever.
Ever.
And that, in no small part, is why "no fault" divorce works an irreparable and unconscionable injury to marriage, the married, and men and women in general.
It should not be allowed.
Before we look at that, or rather before we carry on directly, however, we'll take a big diversion. The reason is that we happened, in an unrelated fashion, upon something tagentially related to this topic and started a post on it, but then decided that it would really be better set out here.
And that involves two videos from The Catholic Gentleman blog.
Men Did Greater Things When It Was Harder To See Boobs
The prior set of statues took the relationship so seriously that it was somewhat difficult to contract in the first place, had very serious implications from day one, and was very difficult to break. By being difficult to break, it protected first children, but then it protected the married men and women themselves.
This is not to say that all marriages were always rosy, but truth be known, the majority of marriages that break up do so due to transitory matters. That's why divorce originally required proof of something serious. Critics of the old statutes claimed that this forced people, and they usually mean "women" by people, to make up lies to obtain a divorce, and lying did indeed occur. Missed in that is that the fact that lying was occurring mean that what was being claimed, such as mental cruelty, didn't really exist. It was all just a matter of feelings.
That it is a matter of transitory feelings is borne out by the evidence. At a bare minimum, it's reported that 27% of women and 32% of men regret their divorces, or are willing to admit that they do. Given the nature of such reporting, we can probably easily assume that the real percentages approach at least 40%, if not higher.
Taken out of that, of course, are the percentages of those who divorce who simply kill themselves. Suicide being a risk due to divorce is very well established, although statistics associated with the percentage that take this tragic route are hard to come by, with men being nine times more likely to kill themselves following or during a divorce than women. That last statistic is particularly interesting, as there's something about men that causes them to take that approach at a much higher rate than women, although suicide is an increased risk for men and women due to divorce. Men, it is well known, tend to lose their social structure upon marrying, and it tends to devolve, over time, down to their wife. Again, looking back to old wisdom, the Old Testament informs:
Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh.
They do indeed, and this does indeed become the case. It's really easy to find examples of a wife's family essentially becoming the family of her husband, but it's much less common the other way around, in spite of what many people assume. Men getting divorced tend to lose their entire families as a result, their wife, their children, and their wife's family, with nowhere to go. The failure is so existential, they'd simply rather die. Women suffer to, but the classic "going back to her parents" is an option for them. Men don't "go back to their parents". They go back to new dwellings alone.
Suicide is now so common with divorce that its frequently discussed in various divorce related circles, including legal ones. Interestingly, the tragedy frequently is followed by the comment that if a person is edging towards this during the divorce in an open way, it should basically be disregarded, as that's manipulative. At some level, that's an incredibly self-interested set of views. Self-slaughter if never the right answer, and from a Christian prospective, it's a mortal sin. But the people who state "I feel guilty because my spouse killed himself" often really should feel just that. They abandoned their vows and the other person fell into despair, so yes, you should feel guilty, and moreover, you in particularly should not "move on" into another relationship having helped kill, quite literally, your prior one.
All of this is also why the death rate associated with men is also falsely low. Some go home and kill themselves sooner or later, but some simply drink themselves to death, or purposely engage in a lifestyle that will shorten their lives. Some just die, broken-hearted. Indeed, a bona fide medical condition, takotsubo cardiomyopathy, or “broken heart syndrome,” occurs in a certain percentage of otherwise healthy people, killing 5% o those who obtain it, and causing long term health effects for 20% of those who aren't killed by it but survive. In extreme cases, a related psychological condition results in a mental collapse in which a healthy person just gives up the will to live and ceases all efforts to do so, resulting in death coming within the span of a week unless people catch it and intervene.
Oh well, right? We've moved on to the brave new legal world where the facts are made up and the answers don't matter, and just have to live with it.
No we don't. There are things that can, and should, be done. But what can be done?
- Be honest about the relationship between men and women.
That is why a man leaves his father and mother and clings to his wife, and the two of them become one body.
He's not going to get over the "clinging".
If the authors of The Catholic Gentlemen are correct, women need to grasp this. But there's a lot that men need to grasp as well. And before we depart on this topic, we'll note, at least in undamaged women, and a lot are damaged, the psychological union that this creates exists too.
When I was looking up stuff for this post, one of the things I just ran across was a post by a woman who had initiated a divorce. Still convinced that she was correct in doing so, she was baffled by why she was repeatedly thrown into lamenting the divorce and the loss of her husband. Of course, the Redditors came in with all sorts of "grieving" statement, and in a way they were right. But the reality of it is that she tried to cut something down that was within herself and killed it so it didn't die a natural death. As that attempt at murder, and indeed it’s a type of self-murder given the nature of marriage, is ineffective, her DNA was telling her what society could not. Her divorce is false. She wasn't the person she was before she attempted to divorce.
It's here where the videos linked in can do a real service. Societally, we lie about sex all the time and have damaged people enormously as a result. What we've essentially done is to encourage people to get on the perversion and decay train, and a lot have boarded it. Then we're surprised by the result. To give an odd example, everyone was surprised when "America's Dad" Bill Cosby turned out to be a serial sexual pervert. But why? We knew that he hung out at the Playboy Mansion and everything associated with Playboy ended in perversion, long term.
This obviously goes beyond marriage, of course, and gets towards being honest about our psychology as a species, which we aren't. We can pretend that the old standards went away, but the old DNA is still there.
- What can be done under the current law
- Going back to the old law
People constantly imagine that when a mistake is made, and absolting hte old law here was a mistake, you "can't go back".
- A societal reaction.
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