Divorce and the Family in America

Divorce no longer shocks, but it is still a public issue, largely because the recent liberalization of the New York law (which previously limited grounds of divorce to adultery but which now makes a two-year separation additional grounds for divorce), together with the agitation preceding this change, focused attention once again on the absurdity of the divorce laws not only of New York but of most of the other states. But if divorce remains a political and a legal issue, it has not yet become an issue for sustained historical reflection. Studies abound, but practically all of them take for granted that the growing divorce trend is part of the "sexual revolution"; a symptom, therefore, of the decay of the family and of the whole complex of assumptions with which the old-fashioned family was bound up. It is precisely this premise, however, that needs to be re examined if we are to understand not only divorce and marriage but a whole series of related questions, which although they are not public questions in the conventional sense have an important bearing on the collective as well as the private lives of Americans. It is quite possible that easier divorce, far from threatening the family, has actually helped to preserve it as a dominant institution of modern society.

Only alarmists would argue that the family is literally becoming extinct. The question is whether or not it has radically changed its nature, partly as a result of the ease and frequency of divorce and partly as a result of other developments of which the frequency of divorce is a consequence. It is on this point that both scholars and laymen almost universally agree. The Victorian family, they believe, was patriarchal, based on a double standard of sexual morality according to which fidelity was demanded of the wife while the husband pursued his extramarital career of sexual escapades among prostitutes or expensive mistresses, depending on his social class. People did not marry for love so much as for the convenience of the families concerned; all marriages were in this sense "arranged." Divorce or annulment, when they rarely occurred, took place at the pleasure of the husband, the wife having no recourse in the face of her husband's indifference, infidelity, or brutality except the solace of religion and the sewing-circle society of women, fellow victims of a system which consigned them, it seemed, to perpetual subordination. Such is the picture of Victorian marriage to which the modern family is held up in striking contrast. Nowadays, even a President's daughter marries for love, a fact of which it is one of the functions of journalism ritually to remind us. The affectional basis of marriage presumably works to make the partners equals. The growing divorce trend, whether one attributes it to romantic illusions surrounding marriage or to sexual difficulties or to any number of other explanations, must therefore reflect, in one way or another, the new equality of the sexes. The fact that most divorce proceedings are now instituted by women would seem to confirm the suspicion that the relaxation of old taboos against divorce represents still another victory for women's rights.

Given these assumptions, the principal objection to the present laws is that they are an anachronism, a last refuge of Victorian prudery and superstition. The authors of a recent study of American divorce complain that "while a real social revolution has been going on affecting in a thousand ways the importance and relative permanence of marriage, the divorce laws have remained the same with only few minor exceptions" The law of divorce, in short, is seen as a notable instance of "cultural lag," and the most impressive argument for reform, accordingly, is that law should not be allowed to diverge so far from practice. Most Americans apparently believe that an unhappy marriage is worse than no marriage at all and that the best way of ending an unhappy marriage is divorce by mutual consent. Yet the laws compel them to undergo the distress and humiliation of an adversary proceeding in which one party has to file charges against the other, even to fabricate them, with disastrous moral and emotional consequences for everyone concerned.

Behind all this speculation lies an understandable concern about a set of laws which degrade what they purport to dignify: the ties of marriage. But there also lies a certain amount of confusion about the history of the family, the nature of the sexual revolution, and the relation to these developments of feminism and the "emancipation" of women. In the first place, the history of the family needs to be seen in much broader perspective than we are accustomed to see it. There are good reasons to believe that the decisive moment in the history of the Western family came not at the beginning of the twentieth century but at the end of the eighteenth, and that the Victorian family, therefore, which we imagine as the antithesis of our own, should be seen instead as the beginning of something new--the prototype, in many ways, of the modern household.

If we forget for a moment the picture of the Victorian patriarch surrounded by his submissive wife, his dutiful children, and his houseful of servants--images that have come to be automatically associated with the subject--we can see that the nineteenth-century conception of the family departed in critical respects from earlier conceptions. Over a period of several centuries the family had gradually come to be seen as preeminently a private place, a sanctuary from the rough world outside. If we find it difficult to appreciate the novelty of this idea, it is because we ourselves take the privacy of family life for granted. Yet as recently as the eighteenth century, before the new ideas of domesticity were widely accepted, families were more likely to be seen "not as refuges from the invasion of the world," in the words of the French historian Philippe Aries, "but as the centers of a populous society, the focal points of a crowded social life." Aries has shown how closely the modern family is bound up with the idea of privacy and with the idea of childhood. Before these ideas were securely established, masters, servants, and children mingled indiscriminately, without regard for distinctions of age or rank.

The absence of a clearly distinguishable concept of childhood is particularly important. The family by its very nature is a means of raising children, but this fact should not blind us to the important change that occurred when child-rearing ceased to be simply one of many activities and became the central concern--one is tempted to say the central obsession--of family life. This development had to wait for the recognition of the child as a distinctive kind of person, more impressionable and hence more vulnerable than adults, to be treated in a special manner befitting his peculiar requirements. Again, we take these things for granted and find it hard to imagine anything else. Earlier, children had been clothed, fed, spoken to, and educated as little adults; more specifically, as servants, the difference between childhood and servitude having been remarkably obscure throughout much of Western history (and servitude retaining, until fairly recently, an honorific character which it subsequently lost). It was only in the seventeenth century in certain classes--and in society as a whole, only in the nineteenth century--that childhood came to be seen as a special category of experience. When that happened, people recognized the enormous formative influence of family life, and the family became above all an agency for building character, for consciously and deliberately forming the child from birth to adulthood.

These changes dictated not merely a new regard for children but, what is more to the point here, a new regard for women: if children were in some sense sacred, then motherhood was nothing short of a holy office. The sentimentalization of women later became an effective means of arguing against their equality, but the first appearance of this attitude seems to have been associated with a new sense of the dignity of women; even of their equality, in a limited sense, as partners in the work of bringing up the young. The recognition of "women's rights" initially sprang not from a revulsion against domestic life but from the cult of domesticity itself; and the first "rights" won by modern women were the rights of married women to control their own property, to retain their own earnings, and, not least, to divorce their husbands.

Until the middle of the nineteenth century in England and the United States, grounds for divorce were pretty much confined to adultery and cruelty. Divorces, moreover, had to be granted by legislative enactment. These provisions, making money and political influence requisite to divorce, effectively limited divorce to members of the upper classes; and except in rare cases, to upper-class men, eager for one reason or another to get rid of their wives. The new laws, still in effect today in most places, substituted judicial for legislative divorce and broadened grounds of divorce to include desertion. Both of these provisions, particularly the second, show that women were intended to be the principal beneficiaries of the change. That was certainly the result. Ever since the liberalization of the laws in the mid-nineteenth century, divorces have been easier and easier to obtain, and more and more of them have been granted to women.

But those who see in these statistics a general dissolution of morals and a threat to the family misunderstand the dynamics of the process. The movement for earlier divorce owed its success to the very idea which it is supposed to have undermined, the idea of the sanctity of the family. Indeed, it is somewhat misleading to see divorce-law reform as a triumph even for women's rights, for the feminists could hardly have carried the day if their attack on the arbitrary authority of husbands had not coincided with current conceptions of the family--conceptions of the family which, in the long run, tended to subvert the movement for sexual equality. It was not the image of women as equals that inspired the reform of the divorce laws, but the image of women as victims. The Victorians associated the disruption of domesticity, especially when they thought of the "lower classes," with the victimization of women and children: the wife and mother abused by her drunken husband, deserted and left with children to raise and support, or forced to submit to sexual demands which no man had a right to impose on virtuous women. These images of oppression wrung ready tears from our ancestors. The rhetoric survives, somewhat diluted, in the form of patriotic appeals to home and motherhood, and notably in the divorce courts, where it is perfectly attuned, in fact, to the adversary proceeding.

Judicial divorce, as we have seen--a civil suit brought by one partner against the other--was itself a nineteenth-century innovation, a fact which suggests that the idea of marriage as a combat made a natural counterpoint to the idea of marriage as a partnership. The combat, however, like the partnership itself, has never firmly established itself, either in legal practice or in the household itself, as an affair of equals, because the achievement of legal equality for the married woman depended on a sentimentalization of womanhood which eroded the idea of equality as easily as it promoted it. In divorce suits, the sensitivity of judges to the appeal of suffering womanhood, particularly in fixing alimony payments, points to the ambiguity of women's "emancipation." Sexual equality, in divorce as in other matters, does not rest on a growing sense of the irrelevance, for many purposes, of culturally defined sexual distinctions. It represents, if anything, a heightened awareness of these distinctions, an insistence that women, as the weaker sex, be given special protection in law.

From this point of view, our present divorce laws can be seen as faithfully reflecting ideas about women which, having persisted into the mid twentieth century, have shown themselves to be not "Victorian" so much as simply modern, ideas which are dependent, in turn, on the modern obsession with the sanctity of the home, and beyond that, with the sanctity of privacy. Indeed, one can argue that easier divorce, far from threatening the home, is one of the measures--given the obsession with domesticity--that has been necessary to preserve it. Easy divorce is a form of social insurance that has to be paid by a culture which holds up domesticity as a universally desirable condition: the cost of failure in the pursuit of domestic bliss--especially for women, who are discouraged in the first place from other pursuits--must not be permitted to become too outrageously high.

We get a better perspective on modern marriage and divorce, and on the way in which these institutions have been affected by the "emancipation" of women and by the "sexual revolution," if we remember that nineteenth century feminism, at its most radical, passed beyond a demand for "women's rights" to a critique of marriage itself. The most original and striking--and for most people the least acceptable--of the feminists' assertions was that marriage itself, in Western society, could be considered a higher form of prostitution, in which respectable women sold their sexual favors not for immediate financial rewards but for long-term economic security. There was "no sharp, clear, sudden-drawn line," they insisted, between the "kept wife," living "by the exercise of her sex functions alone," in Olive Schreiner's words, and the prostitute. The difference between prostitution and respectability reduced itself to a question not of motives but of money. The virtuous woman's fee was incomparably higher, but the process itself was essentially the same; that is, the virtuous woman of the leisure class had come to be valued, like the prostitute, chiefly as a sexual object: beautiful, expensive, and useless- in Veblen's phrase, a means of vicarious display. She was trained from girlhood to bring all her energies to the intricate art of pleasing men: showing off her person to best advantage, mastering the accomplishments and refinements appropriate to the drawing room, perfecting the art of discreet flirtation, all the while withholding the ultimate prize until the time should come when she might bestow it, with the impressive sanction of state and church, on the most eligible bidder for her "hand." Even then, the prize remained more promise than fact. It could be repeatedly withdrawn or withheld as the occasion arose, and became, therefore, the means by which women learned to manage their husbands. If, in the end, it drove husbands to seek satisfactions elsewhere, that merely testified to the degree to which women had come to be valued, not simply as sexual objects, but precisely in proportion to their success in withholding the sexual favors which, nevertheless, all of their activities were intended to proclaim.

The defenders of the conventional types of prostitution, meanwhile, did not fail to see the connection between prostitution and respectability; in the words of William Lecky, the historian of European morals, the prostitute was "ultimately the most efficient guardian of virtue" because she enabled virtuous women to remain virtuous. "But for her the unchallenged purity of countless happy homes would be polluted, and not a few who with the pride of their untempted chastity think of her with an indignant shudder, would have known the agony of remorse and despair." The same reasoning, as we have seen, led to the nineteenth-century reform of the divorce laws. The purity of the home demanded just such outlets as prostitution and divorce if it was to survive intact and "untempted."

The central features of this system of sexual relationships persist into the twentieth century essentially unchanged. Courtship is more than ever a "sex tease," in Albert Ellis' words, and marriage remains something to be managed--among other ways, by the simultaneous blandishment and withdrawal, on the part of the wife, of her sexual favors. Let anyone who doubts the continuing vigor of this morality consult the columns of advice which daily litter the newspapers. "Dear Abby" urges her readers, before marriage, to learn the difficult art of going far enough to meet the demands of "popularity" without "cheapening" themselves (a revealing phrase); while her advice to married women takes for granted that husbands have to be kept in their place, sexually and otherwise by the full use of what used to be called "feminine wiles." These are prescriptions, of course, which are not invariably acted upon; and part of the "sexual revolution" of the twentieth century lies in the increased publicity which violations of the official morality receive, a condition which is then taken as evidence that they are necessarily more frequent than before. Another development, widely mistaken for a "revolution in morals," is a growing literal-mindedness about sex, an inability to recognize as sexual anything other than gross display of the genitals. The sexual advances of the respectable woman, accordingly, have come to be more blatant than they used to be, a fact predictably deplored by alarmists, themselves victims of the progressive impoverishment of the sexual imagination, who erroneously confuse respectability with the concealment rather than the withholding, of sexuality. We should not allow ourselves to be misled by the openness of sexual display in contemporary society. The important thing is the use to which sexuality is put. For the woman, it remains, as it was in the nineteenth century, principally a means of domination; for the man, a means of vicarious display.

Current concern about divorce springs from two different kinds of considerations. On the one hand, the prevalence of divorce seems to reflect a ''breakdown" of marriage. Traditionalists demand, in the face of this condition, a tightening of the divorce laws; reformers, a more "mature" approach to marriage. On the other hand, a second group of reformers is alarmed not by the breakdown of marriage but by the hypocrisy surrounding divorce. They would make marriage a completely private matter, terminable, in effect, by mutual consent--a change which might or might not accelerate the "decline of the family," but which, they argue, would better accord with our pretensions to humanity than the present laws.

The plea for more stringent legislation encounters the objection that laws governing morals tend to break down in the face of large-scale noncompliance. In New York, the old divorce law did not prevent people from getting divorces elsewhere or from obtaining annulments on the slightest suspicion of "fraud." The argument that there would be fewer divorces if there were fewer romantic illusions about marriage expresses an undoubted truth; but it is not clear, as the argument seems to assume, that there is something intrinsically undesirable about a high rate of divorce. Most reformers, when confronted with particular cases, admit that divorce is better than trying to save a bad marriage. Yet many of them shy away from the conclusion toward which these sentiments seem to point, that one way of promoting more mature marriages might be to make marriage as voluntary an arrangement, both as to its inception and as to its termination, as possible. The definition of marriage as a contract, enforceable at law, probably helps to promote the conception of marriage as a combat, a tangle of debts and obligations, which figures so prominently in American folklore. Revision of the law, particularly the divorce law, would not by itself change popular ideas of marriage, but it would at least deprive them of legal sanction.

Even now, living apart is grounds for divorce in eighteen states and in Puerto Rico and the District of Columbia, the period of time varying from eighteen months in Maryland to ten years in Rhode Island. Barring a general wave of reaction, a possibility which should not by any means be discounted, other states can be expected to follow their example. In every case, reform will be accompanied by dire predictions of the disintegration of domestic values, but the family has outlived such predictions before. Far from being a survival of some earlier historical period, the idea of the family as sacred and inviolate, the cornerstore of society and the seat of virtue, is a characteristically modern idea bound up with the "privatization" of experience and with the tendency of the middle class, in Aries's words, "to organize itself separately, in a homogeneous environment, among its families, in homes designed for privacy, in new districts kept free from all lower-class contamination." This self segregation of the middle class may have been, in the long run, a disaster; on the other hand, it may turn out to have been, precisely because it fostered a new respect for the family, an important countervailing influence to the growth of the state. In either case, the family, desirable or deplorable, is hardly threatened by the increase in divorce.