Marriage has undergone extensive revisions since the introduction of no-fault divorce, both as a legal matter and as a cultural practice. Indeed, the two changes have gone hand in hand, at least as long as the same word is used for both things—as is proper since the government’s definition of marriage recognizes a pre-existing human reality.
Governments have long recognized marriages because marriage is by its nature ordered towards creating children. The institution that brings about the very future of the political body implicates public policy in a profound way. This is why, in the past, biological complementarity—sexual reproduction—has been the defining feature of marriage even amongst societies that were relatively accepting of homosexual activity, such as the ancient Greeks.
But Wisconsin lawmakers are introducing a bill that would permit any marriage that lasted less than one year to be annulled, provided only that no pregnancy resulted from it. As maltreated as the traditional institution of marriage has been in American law recently, this innovation would represent a new low.
Just as marriage has been redefined, this new scheme from Wisconsin would involve a redefinition of annulment. While divorce is the dissolution of a consummated marriage, annulment is the pronouncement that no valid marriage ever actually took place.
The exact contours to permit an annulment vary from state to state, but Wisconsin’s current and typical criteria are: a party lacked consent, whether for reasons of mental infirmity, duress, or otherwise; a 16- or 17-year-old lacked a parent or guardian’s consent; a party lacks the physical capacity to consummate and the other party was unaware at the time of the marriage; or the marriage turns out to be prohibited by the laws of Wisconsin. (That last reason applies, for example, if one party was already married to someone else, in which case they could not establish a valid marriage with a third party in the first place.)
Across all these criteria, a picture emerges, namely that a marriage was impossible to contract for some essential reason or other. Even if people might disagree over including one criterion or another, there is one common end goal: All of these are directed at defining legal contours for where a real marriage did not, in fact, occur.
The Wisconsin bill would overturn that entire schema, allowing the legal proceedings and name of “annulment” to real, valid, consummated marriages—just because they were relatively short.
The bill’s authors have marshaled a few arguments for this idea. They first pay some extremely unconvincing lip service to marriage, namely: “With the fundamental importance of marriage, we as a society benefit from long-lasting, healthy relationships.” That isn’t even a grammatically coherent sentence, let alone an effective one. But with it out of the way, they argue thus:
As people grow, sometimes they grow apart rather than together. When this occurs early on in a marriage, annulment may be offered as a way forward. However, the requirements for granting an annulment can create an uncomfortable environment for all parties…Allowing bad marriages to end without the stigma of divorce will help people get ready for the right marriage in the future…The people of Wisconsin do not benefit when our laws make it more difficult to undo a bad marriage, particularly if there are no children involved and the marriage lasted less than a year.
There’s nothing new or compelling here. Every redefinition of marriage has hinged on this emotional appeal, about making things more free, easy, and nice. But, as with other innovations, this proposal hinges on ignoring the underlying reality that the law is trying to codify and give official sanction to in the first place. The law has set up two different processes: one for couples to dissolve their marriages when they want out, and one for officially determining that no marriage ever existed if that was the case.
This proposal takes the ground-eye view of a couple just wanting to get out of their marriage, with no consideration paid to the fact that annulment “is only an option” in a few circumstances because only under those few circumstances did no marriage occur. Annulment is not “divorce lite.”
The divorce–annulment distinction isn’t just an abstract exercise in philosophizing. This innovation would be corrosive to people’s real lives in two different ways.
First, the bill’s perspective on stigma and divorce is indefensibly naive. Let’s accept their premise: There is a stigma attached to divorce. Now, if there is a stigma attached to the willful dissolution of a marriage, just how much less stigma is there supposed to be for the willful dissolution of a marriage that was one year or less in duration? Most people don’t keep abreast of the latest innovations in legal terminology, but they will eventually become wise to this redefined “annulment.” And when that happens, the stigma will be what it was going to be anyway, for what amounts to an early divorce. Our thought and speech, however, will be messier and less clear.
But the real corrosion isn’t about this proposal’s ultimate futility; it is the impact it will have on new marriages. The entire point of a marriage vow—a binding commitment made before God and the government—is that a man and woman will stay with each other, exclusively, even when they don’t feel like it. The times when they don’t feel like it is the entire reason (although it is not immediately obvious) for making any binding commitment. There will be troubles ahead, and removing the option of walking away motivates both parties to put real effort into making things work.
Making it significantly easier for a couple to undo that commitment, for their whole first year of marriage, would not just redefine annulment: it would redefine the wedding day. It would mean that even after the marriage license, ceremony, rings, vows, and everything else, things are not a done deal. Each spouse would know that leaving is still a ready option for them, and moreover, that their spouse also still has a pretty easy “out” within reach.
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The level of permanence and commitment that marriage solemnizes would be further hollowed out through the entire first year. This creates a kind of moral hazard for couples even with the best intentions. Marriage laws are meant to strengthen marriages, encouraging stability in the family unit, and this law deliberately weakens them.
Abandoning a clear conceptual rationale for different legal categories would result in real-world pain. Rather than making sure the government doesn’t get in the way of people’s happy lives, making the beginning of every marriage a less meaningful and significant act would make it harder for people to pursue and attain the basic human goods that the law is designed to facilitate.
Divorce and annulment are two distinct legal categories for good reasons—reasons that this bill’s supporters do not even bother acknowledging. Like so many other instances of bleeding-heart proposals, the argument for this one is feeble-minded, guaranteed to fail at its own purpose and to precipitate additional harm.