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The Morality of Getting Divorced

Justin McBrayer considers when divorce is morally permissable, and when it isn’t.

It’s almost impossible to find someone whose life has not been significantly affected by divorce. Given this, the decision to end a marriage may be one of the most significant moral decisions a person ever makes. So under what conditions is it morally permissible to get a divorce?

To say that something is morally permissible means that there is no moral obligation requiring you to act differently. So getting divorced will be morally permissible only if you can do so while meeting all your moral obligations. So what are the moral obligations that might make ending a marriage morally problematic?

What Makes Marriage Morally Special?

Many ethicists agree that getting married generates special moral obligations that one would not otherwise have. It makes some actions required that would otherwise not be, for example, sacrificing something for your partner’s sake, and makes some actions wrong that would otherwise not be, for example, having sex with a non-partner. But what explains the fact that when two people marry, new moral obligations are created?

Marriage creates moral obligations primarily because it involves promise-making. Promise-making is a way of generating moral obligations – if I promise to pick you up at the airport, then I have taken on a moral obligation to do so. And whatever else a wedding ceremony may be, it is an event during which two people make promises to one another. It follows that getting married is a way of generating new moral obligations.

divorce cake split

Some ethicists resist this line of thought. They insist that marriage promises have no power to create new moral obligations. According to these philosophers, this is because marital vows are promises to feel a certain way or to have certain emotions towards one’s partner, but we have no control over our feelings or emotions, and it makes no sense to say that someone is morally obligated to do something that is beyond her control. Thus, promising to do something the doing of which one cannot control does not result in a new moral obligation.

There are at least two good reasons to reject this analysis. First, it is plausible that in the marriage context we are promising to do things that are in our control or over which we have indirect control. For example, when we get married we pledge to do our best to bring about a certain emotional state, or make an unconditional commitment to another person. Second, and more importantly, anyone who has been to a wedding can see that although there are often emotional components to marital vows, there are obvious behavioral components as well. In fact, most of us see getting married as a promise to do something for our partner. Consider the following wedding vow, taken at random from an online search:

“I, [name], take you, [name], to be my [husband/wife], my constant friend, my faithful partner and my love from this day forward. In the presence of God, our family and friends, I offer you my solemn vow to be your faithful partner in sickness and in health, in good times and in bad, and in joy as well as in sorrow. I promise to love you unconditionally, to support you in your goals, to honor and respect you, to laugh with you and cry with you, and to cherish you for as long as we both shall live.”

Notice how heavily this vow focuses on actions compared to emotions: support one’s partner, honor one’s partner, respect one’s partner, and so on. Even the emotional content is easily understood in a behavioral sense: to be a faithful partner in sickness and health clearly has a behavioral component. To see this, imagine the following thought-experiment. Suppose Landon makes the aforementioned promise to Hannah. Suppose next that he feels all the right things toward her (for example, he is in love with her), but that his behavior is wildly erratic – he sleeps around, is verbally abusive to Hannah, abandons her when she is ill, etc. Would anyone be willing to say that Landon has fulfilled his wedding vow? Surely not. This shows that we see wedding vows as promises not simply to feel a certain way, but primarily as promises to act a certain way.

So marital vows do create new moral obligations. Furthermore, we typically think that the strength of the moral obligation generated by making a promise varies with the seriousness of the promise-making, the clarity of the promises made, and the consequences of breaking the promise. Marital promises score high in all three categories. A wedding vow, celebrated with all the pomp and circumstance many people can afford, is one of the most serious promises most people ever make. And although the clarity of wedding vows is not universal, many couples carefully construct the wording of their vows, spending a long time talking through what they are and are not willing to promise one another. Finally, breaking a marriage promise often has devastating effects for numerous people. In all, then, it appears that the marriage promise creates a strong and special obligation between the marriage partners.

Illegitimate Promises

Marriage obligations exist because of promises, then. So in order to determine whether divorce is morally permissible, we need to determine whether it would violate marriage promises.

First, it follows that divorce is morally permissible if marital promises have failed to generate special moral obligations in the first place. We noted that making a promise does usually generate moral duties. However, not all promises generate obligations. In particular, promises generate new obligations only when the person making the promise is autonomous, and informed, and does so willingly. Otherwise, the promise is morally illegitimate. We might say that it is not a real promise.

Sometimes a partner is coerced into marriage. Such coercion affects the condition that the marriage promise be made willingly. When angry parents force a scared pregnant girl to marry the father of her unborn child, it is implausible that either she or he does so entirely willingly. Alternatively, a marriage partner might be too young, too mentally undeveloped, or otherwise incompetent to make a morally binding pledge such as is required for a true marriage promise. In such cases, the promises are not made by a fully autonomous agent. When a thirteen-year-old girl marries a much older man, as is common in some cultures, it is implausible that she is emotionally and intellectually developed enough to give fully autonomous consent to the kind of promise made between partners in a marriage. Finally, a marriage partner might have been too ignorant of the situation or nature of the other partner, or even blatantly deceived by them. In such a case, the promise is not made by a suitably informed agent. For instance, when a girl deceives her partner about the fact that she is HIV positive, such deception annuls their marital promises.

In all of these cases, the marital promises are illegitimate, and hence they create no special moral duties between the partners. And if there are no such special moral duties, then it is morally permissible to sever the relationship through divorce.

Bilateral Divorce

divorce not speaking

If I promise to pick you up from the airport, but you find another ride, you may release me from my promise. Just as making a legitimate promise creates an obligation, releasing someone from a promise eliminates an obligation. Thus, one straightforward way for divorce to be morally permissible would be for both partners to release the other from their respective marital promises. Call that a ‘bilateral’ divorce – a divorce by mutual consent.

You might think that even if the two partners agree to end a marriage, it is still wrong to do so if their promises were made before God. However, a promise before someone is different than a promise to someone. A promise made before you makes you a witness, whereas a promise made to you makes you a beneficiary. You don’t have to get God’s permission in a case where He is not the beneficiary.

It is important to note two more things. First, even though a bilateral divorce is typically morally permissible – in other words, it is morally permissible all other things being equal – sometimes all other things are not equal. An obvious example of this kind of case involves families with children. Parents have moral obligations to their children as well as to each other. Insofar as these obligations require that parents refrain from doing what is bad for their children, and insofar as divorce is bad for children, then other factors notwithstanding, these same parental obligations require that parents refrain from getting a divorce, at least while the children are young enough to suffer harm from it.

Second, many people are troubled by apparently cavalier divorces. Hollywood stars who get married apparently on a whim and divorced six months later provide typical examples. These cases appear to be cases of bilateral divorce, and hence they are to that extent morally permissible. So what do we find so troubling about them? My suggestion is that there seems something amiss with the moral character of people who behave in this sort of way. What they do may, strictly speaking, be morally permissible, but the apparent attitude behind it reveals a moral vice: that they are quick to make promises that they are unable or unwilling to keep. People who casually make and abandon marital promises are not, morally speaking, the kind of people we want to be. This is not moral behaviour in the wider application of the term.

Divorce When A Partner Cannot Fulfill Their Duties

Moral philosophers often say that ought implies can. What they mean is that if you really ought to do something, this implies you must be able to do that thing. In other words, it is conceptually confused to say of someone that he ought to do something if it is impossible for him to do it. This principle is relevant to divorce in the following way: if you become unable to do what you have promised to do, then you cannot have a moral obligation to do that thing. And hence divorce will be morally permissible any time one of the partners is literally unable to keep the marital promise. However, determining whether a divorce is permissible for this reason requires being clear about what marital promises are about.

In many cases, marital promises are about goals over which we have indirect control. Two plausible candidates for the goals that marital promises are aimed at are: (A) the goal of fostering a loving relationship between the partners, and (B) the long-term goal of making a partner’s life better.

Suppose that these are both plausible candidates for what we are pledging when we get married. If the goal is (B), we have the following interesting result: when staying together does not make your partner’s life better, in the long run, then your marital promises do not obligate you to stay together. For example, suppose one of the partners becomes involved in an extramarital affair, and that she and her lover are happy building their lives together. In this case, it is morally permissible for the other partner to initiate a divorce on the grounds that his promise to his partner was aimed at making her life better and he is unable to do so given the current situation. Because he cannot do so, he has no moral obligation to do so. Thus, in this sort of circumstance it may be morally permissible to formally mutually end the relationship.

Unilateral Divorce

A ‘unilateral’ divorce happens when only one of the partners desires the dissolution of the marriage. Since promises produce moral obligations, the obligations from marital promises make it morally wrong to seek a unilateral divorce in many cases. Consider the case of a man who wants to divorce his wife on the grounds that she has been recently diagnosed with a chronic degenerative disease. This is not a morally permissable ground for divorce. In particular, neither non-reciprocation nor the lack of happiness of one of the partners justifies unilateral divorce.

Many people who divorce cite the fact that their partners did not reciprocate in certain ways as justification for the divorce. Their partners weren’t ‘doing their part’ in the relationship. Whether this counts as a morally adequate reason to get a divorce depends on whether the marriage promises were unconditional or conditional, and the nature of the conditions. Take, for instance, the promise to be sexually faithful to one’s partner. On an unconditional reading, this promise says, ‘No matter what happens, I promise to be sexually faithful to you’. However, on a conditional reading, the promise might say, ‘I will be sexually faithful to you so long as you are sexually faithful to me’. On the unconditional reading, one has a moral reason to be sexually faithful to one’s partner regardless of what he or she has done. On the conditional reading, one has a moral reason to be sexually faithful to one’s partner if and only if he or she has also been sexually faithful. Generally, if marital promises are conditional, then the non-reciprocation of a partner in such a way would cancel out the moral obligation generated, and hence a divorce would be morally permissible. But if marital promises are unconditional, then the non-reciprocation of a partner is morally irrelevant, and hence a divorce would be morally impermissible.

Does happiness, or the lack of it, count as a valid condition for divorce?

Regarding the (supposed) right to be happy, many people cite their ongoing unhappiness as the justification for their divorce. The idea is that if it becomes impossible for a person to be genuinely happy while married to their partner, it is morally permissible for them to divorce that partner.

divorce child cartoon
Sad Child © Javad Alizadeh 2007

Two things should be noted in response to this line of thought. First, a right to be happy is at best a negative right: it is at best the right to pursue happiness as long as you can do so without violating the rights of others. But this sort of right doesn’t mean that a divorce is morally permissible, even if it is true that one cannot be happy without a divorce. Compare this with the negative right to own a car (that is, the right to take steps to own a car as long as you can do so without violating the rights of others). This right doesn’t mean that stealing a car is morally permissible, even if it is true that you cannot get one without stealing it. The crucial issue in both cases is whether the action in question would violate a moral obligation, and in both cases it would: breaking a marital promise in the first case, and the obligation not to steal in the second. Second, we don’t ordinarily think that one can get out of a promise, like any other sort of contract, simply because performance of the promise or contract will cause one unhappiness. Consider a standard commercial contract: one business cannot renege on a contract with another business even if doing so would be crucial for the profits or success of the first business. Or suppose I promise to pick you up from the airport, but on the appointed day realize that I would be happier doing other things. This does not mean that I no longer have a moral obligation to pick you up from the airport. By the same reasoning, one’s happiness, or lack of it, does not on its own make breaking a marital promise morally permissable.

Thoughts To Take Away

Many divorces are morally permissible. These include cases in which the marriage promise was illegitimate, scenarios in which one of the partners is unable to fulfill the promises, and considered bilateral divorce. But many divorces are also morally wrong, including those in which the partners have other obligations that require them to stay together, at least for a time, and unilateral divorces in which one partner’s non-reciprocation or one’s right to be happy is cited as the sole reason for the divorce.

There are two take-away thoughts. First, we should be very careful with the promises that we make to our marriage partner on our wedding day. These promises ground special moral obligations, and yet they are all too often vague, unclear, or impossible to fulfill. Partners entering into a marriage should have explicit conversations about their expectations for the future, the promises they are willing to make to one another, and the unconditional or conditional nature of such promises. Second, we should also be very careful about the decision to get a divorce. Whether a divorce is morally permissible depends on a great many things, including the content of the promises made between the partners.Merely citing a right to be happy does not dissolve the moral obligations we have in other areas of life. Nor does it on its own obviate the moral obligation we have to stick with a spouse when doing so makes us unhappy.

© Dr Justin P. McBrayer 2017

Justin McBrayer is a Fulbright Scholar at the University of Innsbruck and Associate Professor of Philosophy at Fort Lewis College, the liberal arts college for the state of Colorado.

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