In life the duration of marriage depends upon the desires or consent of individuals. In law it is perpetual, subject to termination not by agreement made at the outset, or by later consent, but by court decree. At the time of entering into marriage people usually know merely that somehow, somewhere, some time there is a way out if the situation becomes too strained. Technically, since the contract is for life, a divorce is granted for a breach. Thus there is an implied term, as there is in every contract, that relief is granted for a breach—but what constitutes a breach depends not upon the terms of the contract or the law of the place where the contract is made but upon the jurisdiction where relief is sought—a matter of which the parties ordinarily know nothing when they make the contract. Convention seems to demand that the parties know not what they do.
Modern society, this summary seems to show, has been moving toward freedom of contract in marriage. Those phases which concern the state, such as economic provision and children, must be conserved. But time was—and still is in some places—when marriage itself was a tribal or a state matter. Then it became a family matter, determined by the parents, and property and family rights and interests were the important considerations. But parents, knowing by experience that there can be no happiness without security—although there might be unhappiness with it—failed to take into sufficient account the emotional content, and, particularly in the Western World, there developed a certain freedom of contract in making a choice. To-day, when people have come to recognize the necessity of sexual and social compatibility, which cannot be determined in advance, there has come a demand for a further freedom of contract, to which society has responded by more liberal divorce laws. The laws which permit a divorce where parties have not lived together for a certain length of time make the duration of the marriage relation really a matter of consent. They mean in effect that a contract of marriage contains an implied term that it is to continue until the parties consent to its end, and in human relations this means until one party demands its end.
If a person proposed that the law recognize a marriage contract which was to continue until either party desired its termination, he would be regarded as a wrecker of our institutions; but society is doing this very thing—obscurely, perhaps, as an after-effect, not as a preconceived design; blindly, and not with intelligent forethought. Many have suggested that marriages be made harder and divorces easier. But how revolutionary would seem a suggestion that marriage contracts be made in advance, conforming to the teachings of experience, providing for maintenance and custody of children and limited by the understanding of the parties; that those who, for religious or ethical reasons, wished to enter into a life contract be permitted to do so; that those who wished to enter into a contract to terminate by joint consent or at the option of either party likewise be permitted to do so? An objection that this would be dangerous assumes that people choose the present form only because compelled to do so. Individuals are breaking from the old conventions, and the law, usually a laggard by a generation, is following them. In forty-three States desertion is a ground for divorce; in twenty of them, desertion for one year. In seven States, failure or neglect to provide is a ground; in four of them, the period is one year. In some States, if the parties live apart for a certain length of time—in three of them for five years—that is ground for divorce. Is not this divorce by agreement? And by implication, since living together requires the willingness of two parties, the result is a contract which may be ended by either of the parties at any time he or she sees fit—after an intervening cooling period. Thus does freedom creep in by the back door.
Does this work harm to society? There is little difference in the marital or social conditions or in the welfare of children in Norway and Sweden, where there are liberal laws, and in England, where divorce is a long, complicated, and expensive process. No one could discover that he had crossed the State line from New York to Pennsylvania by observation of the state of society, the happiness or apparent duration of marriage, the welfare of children, or the social conventions of the people. Yet in Pennsylvania there was one divorce for every 10.2 marriages in 1922 and only one for every 22.6 in New York. In South Carolina there are no divorces; in Oregon, the number of marriages to one divorce was 2.6; in Wyoming, 3.9; in California, 5.1. In the District of Columbia, the banner section, there were 35.8 marriages to one divorce. There, as in New York, the only ground is adultery. Yet San Francisco society seems as stable as that of Washington. Of course, the figures do not mean that seven times as many Washington couples as California couples, and four times as many New York couples, make a success of marriage or live together when it has ceased to be a success; but rather, that New Yorkers and Washingtonians solve their marital troubles elsewhere than at home. Thus, in Nevada in 1922 there were more divorces than marriages, because people married in other States repented in Nevada.
Whatever effect it may have on society, the extension of grounds for divorce which has taken place in the last decade, and the modern improvement in communication and travel, which opens other States or foreign countries to an increasing number, brings about a situation by which people, though not free to contract, do avail themselves of means which have the same effect. Revolutionary changes occur unnoticed, while our delusions persist and our sense of conservatism is gratified.
Changes in Sex Relations
By Elsie Clews Parsons
Elsie Clews Parsons
is widely known as an anthropologist and writer. She has contributed largely to scientific journals and in 1922 edited the volume on American Indian Life by various students of the subject. Graduated from Barnard 1896; Ph.D. Columbia 1899. Fellow and Lecturer in Sociology at Barnard; Lecturer in Anthropology in New School for Social Research. She is editor of the Journal of American Folklore; Treasurer of American Ethnological Society; President of Folk Lore Society. Is author of “The Family”; “The Old-Fashioned Woman”; “Fear and Conventionality”; “Social Freedom” and “Social Rule.”
CHANGES IN SEX RELATIONS