Consider three tiers of possible committed relationship:

• Long term relationship, no formal commitment

• Marriage, with the possibility of no-fault divorce

• Marriage, without the possibility of no-fault divorce

Different couples will have different preferences for which of these tiers to inhabit. I think that I, you, and the market creator all actually agree that couples should be able to choose between all three of these options.

I think you misinterpret the situation when you say that "nothing is stopping you and your spouse from upping the consequences of your marriage inside the limits of the law." The law as it stands is somewhat reluctant to enforce particularly strict prenups, so no, you can't up the consequences to the level some people desire. Currently there are two real options, the first two on my list above. Those who want the third are mostly out of luck.

Someone who proceeds on the assumption that there must be only two options might say, like in the market description, "[No-fault divorce] makes marriage no different from a long-term relationship, just with a meaningless, ridiculously-expensive ceremony." That is to say, in less heated language: the first two categories on the list are fairly similar, so why not squeeze them into one, that of the long-term relationship, and repurpose the word "marriage" for the third thing, that is currently unavailable?

I disagree with this, because I don't think we must only have two options available. Let there be marriages that allow no-fault divorce and those that don't: it could be as simple as having judges be less skeptical of prenups, and be more less reluctant to hold parties to them, to the same degree as with most contracts. Or it could be more formally integrated into the concept of marriage: have there be a checkbox on the marriage paperwork for "We want the option of a no-fault divorce." (Or: "We don't want the option of a no-fault divorce"—I'm not taking a stance on if it should be opt-in or opt-out.)

Why involve the state? Because if there is anything at all worthwhile in what states do, it is in the enforcement of contracts. To refuse to enforce contracts on a given subject is to soft-ban that subject; and I see less than no reason to ban this level of committed relationship, nor, from what you write, is that something you desire.

I hope I have correctly summarized what I read as the claim here; @RobinGreen can correct me if he feels I have misunderstood his stance. I see the core disagreement here to be one of facts, not values: you think that this level of commitment is already possible, and thus interpret this to be about forcing it on everyone; whereas I (and I believe @RobinGreen) think it to be not in practice currently allowed, and want the option to exist, without forcing it on those who don't want it.

After all that there may remain some amount of disagreement over the use of the word "marriage"—my preferred solution would be to use that word for a wide variety of commitment levels, not just the highest. And I'd accordingly prefer to give whatever tax benefits and so forth given to married couples also widely. But I also don't consider that the core of the argument: if we can all agree that those who want to bind themselves tightly should be allowed to do so, and that those who want to bind themselves at a lower level or not bind themselves at all should also be allowed that, then most of the argument here is moot.

@zzq To me it seems like you argue that it is somehow forbidden to choose this third level of commitments. It is, to the best of knowledge, not. It is the what many religious groups call simply marriage and they don't offer the second level at all. These groups have their own contracts and ways of enforcing their rules and some of them are also open for others to join. If there is no group that fits your needs you can always create your own group with new rules. There are however limits to what contracts the rest of society will enforce, which I assume we all agree is a good thing.

The reality is that the third level of commitment you describe does exists in many places, also inside the United States. The result is, frankly, hardship and suffering of the some of the weaker members of these groups.
Sometimes the suffering is so great that these people still seek to disband their marriages, at great cost to themselves. What 'fault-only divorce' proposes is to add to these peoples misery by also putting them in legal trouble.

There are limits to harm and suffering society is willing to put people through because they signed a contract (or were born to parents of a certain faith). A marriage you cannot get out of is one of them.

Your initial argument was that "nothing is stopping you and your spouse from upping the consequences of your marriage". This seems to imply a liberal position of letting people run their own lives, with which I agree.

Ah, but you qualify that with "inside the limits of the law". If that was indeed intended as a qualifier, it begs the question. What should the law be? You can't answer that with reference to what the law is.

Perhaps you're saying that the existing law is good enough, because couples have other ways to commit, and so the law does not need to be changed. For instance, you say that many groups have their own ways of enforcing their rules. Fine. But I don't care about those groups—for one thing, I want every couple, members of such a group or not, to have the option. You wouldn't say that it's OK to not have the law support same-sex marriage, just because gay people can have communities that will consider them married even if the law does not, I'm sure.

You write "There are however limits to what contracts the rest of society will enforce". Maybe, but that's not an argument about any specific case, including this one: you have to give an argument, no less than when banning something outright. Again, take same-sex marriage: what would you think of someone who said "I'm not saying that the government should ban gay marriage, just not enforce gay marriages"? You'd consider that a fairly thin excuse. The merits of not banning same-sex marriage don't go away when discussing only whether or not those marriages will be enforced.

Ultimately, people are responsible for their own lives. They may choose to run their lives in a way you wouldn't want to run your own—that's on them. "If you don't like gay marriage, don't get gay married", people used to say, and the same applies here.

Do you have any better argument in favor of a ban then "it's bad", "I don't like it", "if we allow this, sometimes people will make choices that I wouldn't have made and mess up their lives"? Consider if you have an argument an anti-same-sex-marriage advocate wouldn't have an equivalent version of.

Look, there is a consistent position on the other side. If you're the type of authoritarian who thinks he knows how people should run their lives, you can demand that this or that sort of marriage, that you think will lead to bad results, should be banned. But if, as suggested your initial comment, you take the side of individual autonomy, you should allow people to make their own decisions, even when those decisions are not to your taste.

(And I'm not sure what you mean by "or were born to parents of a certain faith". That's nonsensical in context: we're talking about people who choose to live their lives a certain way—what do parents have to do with it? If you're saying that no one ever really makes their own decisions because they've learned some of their values from their parents, so you should get to make their decisions for them, then I don't know what to say to you other than that we have a very fundamental philosophical disagreement. Again, consider the anti-same-sex-marriage advocate who wants to ban gay marriage because there might be people who wouldn't have gotten gay married if their parents hadn't taught them that it's OK to be gay.)

@xyz What? Surely an abusive relationship is a fault?

@RobinGreen Well, emotionally abusive is not a fault, or at least not a substantial enough one. And physical abuse falls under "cruelty," which was used in many many cases, probably illegitimately. The thing is that if the standard for cruelty is too high then you lock people into physically abusive marriages, and if it's not high then anyone wanting to divorce can and will claim cruelty, which, according to Wikipedia, is what happened very often:

In many other states, especially California, the most popular allegation for divorce was cruelty (which was then unavailable in New York). For example, in 1950, wives pleaded "cruelty" as the basis for 70 percent of San Francisco divorce cases. Wives would regularly testify to the same facts: their husbands swore at them, hit them, and generally treated them terribly. This procedure was described by Supreme Court of California Associate Justice Stanley Mosk:

'Every day, in every superior court in the state, the same melancholy charade was played: the "innocent" spouse, generally the wife, would take the stand and, to the accompanying cacophony of sobbing and nose-blowing, testify under the deft guidance of an attorney to the spousal conduct that she deemed "cruel."'

@xyz I believe this is a clean argument when streamlined - either the couple can manufacture something that fulfills the criteria and after divorce clarify that the goal was to obtain it, making the ramifications whatever social consequences the divorce would have if it was no fault anyway - or the criteria are absurdly high preventing divorce in many cases where it should be granted.

If both parties want a divorce there is no reasonable way to prevent it short of absurd solutions like requiring a criminal conviction first.

Additionally it feels to me like forcing people into marriages they do not want to be in would increase death under suspicious circumstances rate by a lot.

@xyz I think you have misunderstood the Associate Justice's comment. In the 1950s, marital rape was legal, while wife beating was technically illegal the government often turned a blind eye to it, and women were not viewed as full people. He is being dismissive about actual cruelty, not accusing them of making shit up.

@RobinGreen I went and looked at his original statement, which was part of his dissent in a 1970 trial. It looks to me like he is concerned about and conscientious of actual cruelty. In fact it looks like Mosk is quite a liberal justice, saying, "The California Legislature took a giant leap forward in the field of domestic relations with adoption of the Family Law Act (which permitted no-fault divorce)," and that there was an "inexorable beneficent trend of the law in the divorce field."

Here I put the surrounding context of his Wikipedia quote:

MOSK, J.

I dissent.

...

Traditionally, divorce could be granted to an aggrieved marital partner only upon a showing of the exclusive fault of the other partner. Indeed, prior to 1952, if both husband and wife established that the other committed egregious acts proscribed by the Civil Code, neither could obtain a legal termination of the marriage. To prevail, an applicant had to be "without reproach." (Conant v. Conant (1858)) The incongruous compulsion upon two offending parties to retain their mutually intolerable marital status was finally eliminated in De Burgh v. De Burgh (1952), which wisely recognized that the considerations justifying a divorce "when one spouse has been guilty of misconduct are often doubly present when both spouses have been guilty." With that decision the defense of recrimination, for all practical purposes, became moribund, and a faint ray of rationality illumined the field of domestic relations.

However, the concept of fault as the essential element in divorce actions lingered on, even in cases involving no issue of child custody and cases in which the defendant defaulted and thus impliedly admitted the allegations of the complaint. [Wikipedia quote:] Every day, in every superior court in the state, the same melancholy charade was played: the "innocent" spouse, generally the wife, would take the stand and, to the accompanying cacophony of sobbing and nose-blowing, testify under the deft guidance of an attorney to the spousal conduct that she deemed "cruel."

Universal disenchantment with the demeaning nature of this command performance, and with the rule that demonstrable fault is necessary to terminate the marriage relationship, led to extensive legislative studies and ultimately to adoption of the Family Law Act.

He calls this a "command performance," which seems to me to imply that he thinks it is made up — and that the "demeaning" practice of forcing people to commit perjury was widespread in California courts.

@zzq I presented this text to my GF and she got really triggered lol

@Lily This seems unrealistic. Two people who are deeply in love with each other seem unlikely to be willing to propose "and if you initiate divorce, you owe me 75% of your income for life" type clauses. Kind of a passion-killer, I would imagine!

Yeah, I think my real point is that if you're this worried about your potential spouse divorcing you just to trade up, why are you deeply in love with them?

@Lily Love makes us blind. That is why the state is here to protect us, with alimony laws and (in the past) requirements for something bad to happen in order to initiate divorce.

@LukeHanks Your comment is the first one that made an impact on me. Can you give more details, or is it too private?

@bflytlegmailcom to clarify, in at least some of the major religions (my experience is with Catholicism), the religious sacrament of marriage is what imparts the sanctity of the marriage. The signing of the legal document (government marriage license) is a separate action that has nothing to do with the religious marriage ceremony.

No-fault divorce therefore has no impact whatsoever on the sanctity of the marriage. It is simply a government policy related to a similarly-named legal contract that God doesn't give two shits about.

I am not Catholic, and I imagine you probably are not either. But I think the logic at work here is sound. The sanctity of marriage comes from something other than the legal government contract. This is a common belief in other areas of life. Consider that a businessman with a reputation of honesty doesn't get that reputation from legalistically following the letter of the contracts he signs. Instead, he does what is right, even where the contract is unclear.

In other words, changing the way a government enforces contracts has no impact on who is an honest businessman. So too does no-fault divorce have no impact on the quality of marriages.

If the grocery store clerk won't let me walk off with the store's bananas without paying, does that mean that I have to e.g. beat him up until he lets me? No, of course that's not how it goes. You don't walk off with the bananas, you either pay or leave without any bananas. If you beat him up you go to prison.

That's how it goes in every other area of life. If you're not allowed to do something, that doesn't serve as an excuse for beating people up until they let you. Of course it doesn't—why would you even think that?

Don't set up a strawman version of fault-only divorce that works that way—the people who propose fault-only divorce aren't trying to propose the worst imaginable variation on the concept. I myself lean in favor of no-fault divorce, but I do take seriously that both sides are making an attempt at a sensible vision of the world, and if you want to take part in the debate you must try to actually see the world the other side is imagining.

One variant of fault-only divorce would be that if you leave your wife without divorcing her, that's a crime (or maybe instead a tort against her), and if you try to get around that by beating her up that's the same as trying to get around the crime of stealing bananas by beating up the grocery store clerk—you've just stacked another crime on top of your existing one. Do people sometimes get away with theft by beating up the witnesses? Maybe, but that doesn't stop it being illegal, and it's good that that's illegal if anything is.

Yes, I see how the fault-only divorce setup I described would have problems. I'm not endorsing it. I said I lean in favor of no-fault divorce. But though it has problems, it is not absurd.

@zzq But I don't need to beat up the clerk. No-fault bananas are possible, I can just pay for them.

Your reasoning makes sense, but misses the point I was trying to make. I picked the "hitting" example just because that's the most straightforward way I could get my partner to divorce me.

Here's my thinking: If people don't have legal means to dissolve their marriage, they'll either:
1. Not marry in the first place, because they are scared to be stuck in a marriage that neither party can dissolve.
2. Be miserable, stuck in a marriage that neither party can dissolve.
3. Find something that's not a crime that allows them to end the marriage. (Is adultery a crime? Can you just make something up?)
4. Be happy, and they wouldn't dissolve their marriage, even if no-fault divorce is possible. (That's meeee ❤)
5. Be happier in the marriage, than divorced, even though they think otherwise. (Is this the case why no-fault divorce should be forbidden? Please argue why it's realistic.)
6. Live separated and be only married on paper.

The arguments are similar if only one person wants the divorce. A relationship, where one side is miserable, and the other is not, doesn't sound like it should be protected. And if it's about money: I'm not arguing against alimony.

Disclaimer: This "no no-fault divorce" thing looks insane to me. I'm not from the US (is this about the US?) and don't know the laws there, so please let me know if I missed anything.

You're not wrong! But if I may extend the analogy a little further, it maintains its validity as an argument (though there still are legitimate objections, for sure.) The thing to remember about the bananas: even if the grocery store clerk says you can take them home for free, you've still done something wrong (and illegal): you've stolen from the owner of the store, in collaboration with the grocery store clerk. It becomes something more like embezzlement than larceny, and maybe you'll get away with it, but still.

(In the analogy, your wife is the grocery store clerk, and the grocery store owner is, like, society, or maybe God or something. I don't know, I don't endorse this. But be that as it may, you only get to (legally) take the bananas home in circumstances that match what the grocery store owner lays out, such as by paying the appropriate fee, which in the (slightly-stretched) analogy corresponds to at-fault divorce. If you try to take the bananas home under any other circumstances, well, maybe you'll manage get away with it, but you shouldn't, and it's illegal.)

Analogy aside: I mostly agree with what you present as the six possibilities that may result from not having no-fault divorce, and thus agree with you on the merits of it. No-fault divorce is standard these days because the at-fault-only system of the bad old days generally resulted in one of those outcomes, especially 2, 3, or 6. (No, this isn't about the US vs not: nowadays every state in the US has no-fault divorce.)

The counterpoint is this: you're missing an option from your list, because you're implicitly assuming a static world, where things can't change with time. So call it option 7: learn to get along with your spouse, and build a life together that works for both of you. Each of you can work on becoming a person more suited to the other, and eventually you'll have a happy life together.

Is this a good idea? For some couples, probably. To demand that all marriages work this way is a more than a bit much, in my option. That said, those who argue against no-fault divorce will say "if you don't like it, don't get married"—you can live in a long-term relationship without getting married, able to leave whenever you like. Only get married if you want this level of commitment.

Or take it in a different direction: a new concept, "super-marriage". Marriage works as normal, but if you and your spouse want more commitment than marriage you can opt for super-marriage, which is just like marriage except without no-fault divorce. Maybe most people are fine with regular marriage, and only a few people want to bind themselves in super-marriages, but fine: each couple can pick the option they desire.

Now shuffle around the labels: rename "super-marriage" to "marriage" and "marriage" to "long-term relationship", and you'll have an impression of the anti-no-fault divorce stance held by those like the author of this market. Take for instance this line from the market's description: "It makes marriage no different from a long-term relationship, just with a meaningless, ridiculously-expensive ceremony." The attitude he holds is that the word "marriage" should be reserved for the concept I called "super-marriage", and that people who don't want that can make up their own word if they really want one, or just say "long-term relationship."

(My personal opinion? I'm not against having super-marriage as an option on the table for those couples who opt-in to it (as a separate concept from regular marriage), as I'm generally mostly in favor of people being allowed to bind their own future actions. That said, I'd be quite worried that de facto it wouldn't matter, that people who chose to get super-married would end up in option 2, 3, or 6 anyway, and not actually be driven enough to go with option 7 like their original plan for if things didn't work out. So I'm not optimistic that the option to get super-married would work out so well for the people who choose it, even as an opt-in thing that most people wouldn't choose. But: I also endorse people having the right to make decisions for their own lives, even if I expect those decisions to go badly. Your life, your choice: I don't think people should be paternalisticly forbidden from doing what they want "for their own good", as decided by someone who isn't them. So I must reluctantly come down on the side of not being against super-marriage as an option, though it's not an option I'd likely take myself. Linguistically, I'm not particularly in favor of reassigning the meaning of the word "marriage" to mean "super-marriage", because the existing cultural baggage around "marriage" seems to be something people enjoy even when not getting super-married, but I feel that's less of a core point.)

@zzq Thanks for your in depth reply. I understand the position better now. I don't think there's a reason to argue further, but I want to mention two points for the people in favor of not allowing no-fault divorce:

• I think we shouldn't allow people to sign arbitrary contracts, because they might not be able to understand the implications or simply don't care about their future. To me, marriage without no-fault divorce is in the same category as allowing banks to issue loans, whose debts stay after bankruptcy. The extreme example would be to allow people to sell themselves into slavery.

• There is a high societal pressure to get married, especially when having kids, and there are usually tax and other advantages to married couples. So labelling makes a difference in the real world.

I'm glad we've reached this shared understanding, including about the specific points of disagreement. I agree with you that the two points you give are the relevant points to be discussion of no-fault divorce.

About your first point, it's probably the root whatever disagreement is between your stance and mine; I'll just point out that all things considered, it's best to err on the side of leaving other people to live their own lives, even if it's weird or not the way we'd prefer to live. Maybe some things are too extreme even for that, but even in those cases you should try to figure out a compromise that leaves people a good amount of slack. It's not too unreasonable to object to "no divorce at all" marriages, but that's why the proposal is at-fault divorce only, where if you prove that something is truly wrong then there is an escape hatch. I don't want to push too hard on this—reasonable people can differ on the contours here—but I do want to stress the attitude of letting people do even things that sound weird or dangerous-to-themselves.

Your second point is entirely correct in my opinion; and while you could imagine a society which gives the same tax advantages to long-term cohabiting unmarried partners, but you can't assume that such a change is automatically bundled into any proposed change to divorce policy.