Two-tier marriage didn't work for Justinian it won't work now

September 09, 1997|By Peter J. Riga

HOUSTON, Texas -- Louisiana's attempt to define two classes of marriage is not new. It was tried nearly 1,500 years ago -- and failed.

Justinian I, a Roman emperor after the Western Roman Empire had been overrun by barbarians, reigned in Byzantium from about 520 to 550 A.D. The Eastern Empire flourished: Byzantine art, frescoes and murals exist to this day; Santa Sophia in Constantinople was begun. Justinian's greatest achievement was a summary and updated code of law published about 529.

Justinian was a devout Christian who tried to enforce Christian morality, particularly in the area of marriage law. His code abolished consensual divorce, accomplished by a declaration in front of two witnesses -- in effect, ''no fault'' divorce, which had been the practice for more than 1,000 years. Consensual divorce resolved its own property settlement, and, since all small children went to the father, there was never a custody dispute unless one of the parties had committed fault. In that case, the non-offending spouse, even if it was the wife, got custody.

Not abolished was divorce ''for cause,'' where one party had done something criminal or immoral: adultery, attempted poisoning of a spouse or a high government officer, abortion of an heir, unwillingness to have children.

''Fault'' divorce involved money and wealth. If one or the other spouse could prove an accusation, the non-offending party could get compensation -- the dowry that the woman had brought into the marriage, or a sizable piece of the man's property and wealth (women could hold property in their own names under Roman law).

These laws were mostly for the rich, because only they had money to fight about. The poor had what we call common-law marriage. They just began to live together and told others they were married -- exactly as most unpropertied Americans used to do.

Justinian's reform, contradicting 1,000 years of Roman tradition, shocked many Roman citizens, most of whom were not yet Christians. One year after Justinian I's death, his son, Justinian II, re-established no-fault divorce. People do not easily accept government meddling in their private affairs.

Louisiana's legislators feel, as Justinian did, that no-fault divorce laws have made it too easy to dissolve a marriage. So they have found a way to make it more difficult. A new law recognizes two classes of marriage -- ''covenantal' marriage, with stringent requirements for divorce, such as a two-year waiting period and mandatory mediation, and ''non-covenantal'' marriage, which is our present no-fault divorce.

The impulse is good. People should think seriously before marriage, but that is when the state should impose its obstacles, not after a couple is married. There should be preparation, in which experienced couples talk about the psychology of love, economics, sexuality and conflict within marriage. This could be mandated by law just as we mandate years of study and experience before we give a doctor permission, a license, to practice medicine. Churches should cooperate in such an endeavor, because they take responsibility in witnessing unions.

After marriage is too late. All that courts and divorce lawyers do, as a practical matter, is minimize the damage, see that the DTC children are helped as much as possible and distribute property as equitably as possible.

When there are children

What the law might do is treat all marriages as ''covenantal'' after children are born or adopted into the marriage and for as long as the children remain minors. That would be a ''fault'' situation, mostly to ensure that a disproportionate share of the couple's property goes to the non-offending spouse who presumably will have custody of any small children.

That type of legislation would make some sense, unlike the double-tier marriage commitment in Louisiana. What could such a marriage distinction mean? Every marriage is a commitment ''until death do us part'' or it is only a temporary agreement to live together.

Louisiana's new law will not work, just as Justinian's innovation abolishing consensual divorce could not work. A society's sexual mores, once set, cannot be changed, regulated or abolished by law. Law will not be enforced unless it expresses the mores and ethics of its people.

The two-tier marriage law in Louisiana will not help stem divorce. It will only further deception and dishonesty, bringing disdain upon the law. Marriage legislation failed for Justinian 1,500 years ago. It will most certainly fail for Louisiana as well.

Peter J. Riga is a lawyer.

Pub Date: 9/09/97

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