Proceedings in the Committee of the Whole Uniform Marriage and Divorce Act

CHAIRMAN READ: Before Judge Gibson starts, I would like to recognize Commissioner Fred Hanson for the purpose of making some preliminary remarks from the floor.

Mr. F. T. HANSON [McCook, Nebr.]: Mr. Chairman, I address myself to the general policy of the Act, so far as it pertains to divorce. It seems to me to do justice between parties without regard to fault is an impossibility. I wonder what’s to become of the maxim that no man shall profit by his own wrong — or woman either, for that matter.

The proponents of this Act say that the divorce problem is different because there is fault on both sides; but, humans being what they are, there is fault on both sides in every human relationship. The faults, however, are far from equal. No secular society can be operated on the theory that all faults are equal. Adultery is more serious than abusive language, just as murder is more serious than larceny, although I understand that in the old days on the border between Arkansas and Missouri — and I forget which side of the line it was — they would fine you for killing a man, and hang you for stealing a {6} mule. [Laughter] But I understand that this has been corrected. If you want to know more about it, Judge Gibson or Commissioner Barrett can enlighten you.

It’s an astonishing thing how often opposites of conduct attract; and this results in inequalities of faults. When this occurs, to disregard the inequality of fault, is to blindfold justice. Oregon recognizes the inequality of fault, but endows it with weightlessness by granting divorce to the party most at fault if the other is not seeking it or is opposing the divorce.

The theory that the state has an interest in the stability of the family is unquestionably wise, but under this law it has no more effect than a particular judge chooses to give it. The concepts that implement the theory of the state’s interest — the requirement of definite grounds, collaboration and defenses such as collusion — all are scrapped. In their place we have new terms that defy definition: “irretrievable breakdown” or “irreconcilable differences.” Decisions are to be made on a conclusion, and not on basic facts.

According to a comment in Prospectus magazine for May, it says that California has conciliation procedures and trained staff workers who become thoroughly familiar with the rocky marriages. This may compensate to some extent for the {7} indefiniteness of the grounds, but this Act provides only that the judge may suggest to the parties that they seek counseling. If the court is to rely on conclusions instead of factual evidence, the divorce proceeding becomes more of an administrative than of a judicial process. Morever, providing comparable machinery to that which they have in California may very well be impracticable in sparsely populated areas.

California Senator James A. Hayes, the chief architect of the California law, says in an article in the last American Bar Association Journal that discarding the traditional grounds, collaboration, and defenses, and suppressing evidence of specific acts, as they do in California, will reduce the acrimony between the parties and the trauma to the children, thus making divorce a less bitter pill; but in the typical case reaching the filing stage, everything will have been said. The children will know most of what is to come out in the pleadings or the evidence, and, typically, will learn little or nothing more from these. The real trauma to the children is the permanent separation of the parents. Therefore, the anticipated benefits are illusory. Injury to the innocent cannot be eliminated here any more than it can in criminal law enforcement.

But when the divorce pill is sugar-coated, inevitably {8} more people will take it, and more children will be victims of the trauma. Senator Hayes says the sugar coat will reduce the divorce rate. Now, I am old enough to remember when pills were not sugar-coated. The coating was added to pills in order that they would be taken more readily, and I personally know that it works. Senator Hayes’ premise supports the opposite of his conclusion. It will not reduce the divorce rate; it will increase it.

Advocates of easy divorce say: How cruel it is to keep people tied together when they are not happy! It’s true that all restraints are in a sense cruel, but without the sturdy fence the bawling cattle in the pasture would be destroying themselves in the green corn and damp alfalfa. And so it is with the restraints on divorce. [Laughter]

Acts such as this one that is proposed discard all the time-tested experience of the past. They destroy the establishment, so far as divorce is concerned. They offer in its place vague terms, “irretrievable breakdown” or “irreconcilable differences,” grounds which are in themselves a conclusion and not a basic fact. If every state should enact such a uniform law as is proposed, when would the content of these fuzzy terms cease to vary, not only from state to state but from judge to judge? The proposed law actually is in the {9} main stream of rebellion against accepted norms, a rebellion that threatens to destroy the institutions of our country.

Now, there is a field for uniformity where we may labor to bring together the best wisdom that has been distilled in 50 legislative laboratories. If so doubtful an experiment as this is to be tried, let it be in some of the venturesome states. California and Oregon and perhaps others have embarked upon it already. Until a large body of experience is available, let it rest there. We should not be among the first by whom the new is tried.

C. S. Lewis, the English author, just before his death wrote an article entitled: “We Have No Right to Happiness,” which was published in The Saturday Evening Post in 1963. It is an interesting analysis of the way some people think about divorce, and it will also illustrate a case in which injustice would be done under this type of law.

He and some neighbors had been discussing a thing that had happened in their community. Mr. A had gotten a divorce from his wife, in order to marry Mrs. B, who had won a divorce from her husband in order to marry Mr. A. One of the group, a woman named Clare, remarked: After all, they had a right to happiness.

Now, there is no doubt whatever that Mr. A and Mrs. B {10} were very much in love, and if they continued to be in love and nothing happened to their finances, and their eyes did not rove as they had during their previous marriages, they could expect to be happy. It’s equally clear that they were not happy with their old partners. Mrs. B had adored Mr. B when they were first married, but he got badly used up in the war. It was known that he had lost his job, and it was suspected that he had lost his virility. Life with him was no longer her bowl of cherries. [Laughter]

As to the first Mrs. A, she had lost all her bounce and beauty. Some have said that this was due to the rigors of bearing and rearing Mr. A’s children and nursing Mr. A himself through the long illness that overshadowed the early part of their marriage. Now, you must not think that Mr. A was the kind of a man who throws away a spouse as he would an orange peel that he has sucked dry. He was deeply shocked and grieved by the subsequent suicide of Mrs. A. We know that he was, because he told us so himself.

As I thought about Clare’s remark afterwards, it made no more sense to me than the right to have a millionaire father or good weather for a picnic or to have your life be a bowl of cherries.

The ancestry of Clare’s maxim is an august one. Our {11} fathers wrote of the right to the pursuit of happiness. What they meant by the phrase is not entirely clear, but it is very clear what they did not mean. They did not mean the right to pursue happiness by any and all means — murder, rape, robbery, and so forth, nor even by the kind of wanton disregard for solemn vows, deep obligations of gratitude, and common humanity exhibited by Mr. A, for example, toward his first wife.

Now, Clare was a leftist politically, and she was also a teetotaler. She would not have excused the man-eating tycoon on the ground that ruthlessly getting wealth made him happy, nor would she have excused the lush because he was happy only when drunk. There were several women in the neighborhood who had been heard to say, in substance, that boxing Clare’s ears would have augmented their happiness materially; but would Clare have excused them had they exercised their right to happiness in this way?

Yet Clare’s maxim can be reconciled with these philosophies of hers. Her remark related only to sexual happiness. Women like Clare never talk about any other kind. Here I may be getting myself into trouble with the ladies on the Committee and probably those in the Family Law Section; the Chairman is now a woman. I may be getting myself into the same kind of trouble that Mr. Humphrey got into with Congresswoman Patsy {12} Mink the other day, but I’m not going to take time to go into this part of it. However, Mr. Lewis also makes a very good case for the proposition that where there is a permissive attitude toward divorce, it is the women who are the big losers.

So Clare and those whose thinking parallels hers are allowing to the sexual impulse a preposterous privilege, a privilege we would not right now at least think of extending to other natural impulses. All must be controlled. The instinct for self-preservation, given free reign, becomes cowardice; the acquisitive instinct becomes avarice, or worse.

Maybe we are on the way to allowing unwarranted privilege in other areas. I haven’t heard or read very much lately about punishment for arson or malicious destruction of property — that is, when it’s done on the pretext that you are protesting against something or other, and it matters very little what.

Now, Mr. Lewis’ article left me wondering about one point. How did Mr. A and Mrs. B get their divorces? This article was written in 1963. Under the proposed uniform law, or the law of California or the law of Oregon, getting that divorce would have been no more trouble than good coffee is to Mrs. Olson. [Laughter]

Now, were these discarded spouses too shocked by the {13} perfidy of Mr. A and Mrs. B to even lift a finger? Mrs. A’s subsequent suicide would indicate that she was. Or were these divorces simply the result of miscarriages of justice, such as do occur under the traditional divorce laws? A no-fault law would prevent such miscarriages, by legalized abortion.

Now, I deny being a reactionary. I served on the Uniform Probate Code Committee from 1962 throughout its life. I made no resistance to the drastic changes that that law would make in the law of my State, even though it was generally thought by many — including prominent attorneys from my State — that it would materially reduce the income from the kind of practice I enjoy. This was because I saw in that law a definite and clear benefit to the public, and there was a long and favorable experience with the basic theory of that law in Washington and Texas. So I deny that I’m a reactionary. It’s just that I have a conviction that this largely academic proposal is not as superior to the experience of the past as the revolutionary changes it makes would indicate, but is, in fact, far inferior.

To make the record perfectly clear, I am opposed to the Act on the theory on which it is now drawn. [Laughter and applause.]

CHAIRMAN READ: Thank you, Commissioner. None of us {14} doubt that we are dealing with a controversial and emotional subject. I think it helps to have you put it all in context to start with.