Part of my practice is in family law so I know a bit what I am talking about and if anything I would only lose some business. Yes it sounded crazy when I first thought of it but I have been thinking about it for about 2 years now and it keeps making more and more sense. (Ok I just used google and see I am not alone in this view)
The proposal that I throw out there is this:
1) The state would no longer issue marriage licenses and no longer grant divorces.
2) There would no longer be any government advantages to being married. Its irrational inequality to treat married people different than single people and if you are getting married for economic incentives the government offers then pretty much everyone can agree you’re getting married for the wrong reasons anyway.
3) People could of course get married in churches or other entities to however they want. There could be private secular agencies as well as churches and religious agencies. They would have explanations for what marriage would mean and contractual understandings on what would happen in the case of divorce. Preferably they would have arbitration clauses so these private matters do not need to be public record in court houses. It’s not like the parties would need to sign a long contract either. The marriage license could just incorporate the code or rules it uses (much like today when you get married you are basically incorporating the marriage and divorce code into that marriage license you sign.)
4) When they get married they would have the church or whatever other entity draw up the paperwork about what it means for them. The disputes would preferably be arbitrated by the church or other entity instead of in court. There should be an incentive to keep this out of court so we do not need to waste public funds to sort these disputes out. Smaller churches would likely pool resources and use the services of certain agencies. Larger churches could have their own procedures and understandings.
5) The courts would simply interpret the agreements as any other if they needed to. Again though arbitration would be preferred.
6) The statement that “we are married” will generally mean nothing to the courts. Other than perhaps identifying parents.
Why do this?
1) Save tax payer money that goes to funding court house resources. Trials are a poor way to award custody and the entire public should not need to pay for disputes between 2 angry adults about how they should divide their property.
2) The government would no longer be embroiled in trying to “define” what marriage is when the people it governs don’t agree at all. In a multicultural society that will always be a non-starter.
3) Although many churches preach that they think Divorce should only occur in certain circumstances they often don’t practice this. Instead of trying to make everyone in the state conform to their beliefs they could focus on having their own congregation conform to their professed beliefs. This is a win for everyone.
4) Does anyone really care what the government thinks of their relationship? I have been married for 10 years and I couldn’t care less what Illinois’s government thinks my relationship with my wife is. It is between me, my wife, and God. I care about what my church thinks but I definitely don’t care what the Illinois legislature thinks.
5) Courts and trials are horrible at addressing family issues. No judge can get to know enough about the parents or the kids in a 2 day trial to reliably make good judgments. Churches would have more options through their arbitration rules.
Limitations of this proposal:
1) There would still be the interests of children that would need to be protected. Children born out of wedlock (i.e. no contract) would still be handled by the public courts unless the parents agree to use one of the various private arbitration options that would arise. So it wouldn’t entirely do away with public courts. For example the Catholic Church does not believe in divorce. If the parties did not sign some sort of contract or agreement on how the children issues would be handled in the case of separation then the courts would still need to be used.
2) Yes this would need to be implement out in the future so private entities could get ready for this.