Divorce and Marriage: Why is the Government Even Involved?

For all of the controversy surrounding who should be allowed to get married, why is the government even involved? For the children, property, and spousal support issues in the event of divorce, each state already has laws for how to deal with this situation even if the parties were not married. Moreover, local laws do not sometimes make the actual marriage all that technically difficult, with it being fairly easy to get married. From analyzing the issue of who should be allowed to get married from a legal perspective, it becomes clearer that government’s only interest in marriage is public policy.

The futility of laws that restrict who can get married can be seen by looking at people who live together and decide not to get married and comparing this to how the laws are different for people who get married. Because of the high rate of divorce, many couples decide not to have a marriage, and states must still have laws to determine the law that will apply in the event of a break up.

Child custody is a place to begin analyzing the futility of divorce and marriage laws. It would be beyond belief to think that under normal circumstances a court would decide how child custody should be decided other than by looking at the child’s best interests. This is regardless of whether the couple was ever married to begin with. This also goes for child support, where little to no distinction is made by courts whether the parties were ever married.

The next most important issue is community property, or property earned during the marriage. This, too, can be relatively simple to separate from divorce. Almost all states have laws concerning the co-ownership of property, and how this property will be divided upon a break up. (For instance, co-ownership could be you and a friend of yours buying a business together.)

Perhaps the principle difference between married and un-married couples is that it can be possible for a spouse to claim half of the other spouse’s earnings during the marriage. It is conceivable that such a claim might also exist for un-married couples through potential claims of un-just enrichment. Unjust enrichment is a contract claim by which one party is demanding payment for enriching the other party. In this instance, it could be that if an unjust enrichment argument was applicable, it could be unfair to the party making the claim because it would just compensate them for their effort, not giving a set percentage of what the other party accumulated during the time of co-habitation.

Presumably, there could be simple fixes for how the property is to be divided, thus leaving the only remaining obstacle to overcoming laws regulating who can marry and divorce which is public policy. In other words, because there is no rational or logical explanation for why the government is involved in marriage, the moment that a society becomes politically liberal enough, such laws will likely overturned, allowing what is a private and religious event not to have government interference.

The above material is intended for information purposes only. It is not intended as professional legal advice and should not be construed as such. Attorney William H. Beaumont practices in New Orleans, La.