Every semester I teach family law, I spend a few minutes contradicting my students’ instincts about common law marriage. Most students have a vague idea of common law marriage and joke about cohabiting friends being common law married. A regular part of my introduction of common law marriage is thus to explain that it is increasingly uncommon, discuss the important functions that the formalities of marriage serve, and emphasize that even in states that do allow the creation of new common law marriages, those spouses must seek a formal divorce should their relationship end. This last requirement–that all divorces be formalized–seemed so obvious a principle that I had never questioned it. That is, I had never questioned it until I read Michael Higdon’s article Common Law Divorce.
Professor Higdon’s main focus is on a small but significant group of married couples who have decided to end their relationship but who cannot easily or practically access divorce. This population, comprising about fifteen percent of separations, informally and permanently separate without ever legally divorcing. Professor Higdon outlines a number of factors that may be in play: lack of resources to access the court system, lower likelihood of remarriage and thus lower incentives to finalize their separation through divorce, and difficulty affording and navigating the formalities of divorce without legal advice. Such couples tend to be members of groups that have difficulty accessing the legal system in other contexts: disproportionately nonwhite and poor. Professor Higdon focuses on this group to argue that easier, even informal, methods of ending a marriage not only serve the interests of the people, but also the interests of the state.
Before the widespread adoption of no-fault divorce, as Professor Higdon chronicles, divorce was an adversarial proceeding that could be near-impossible to secure without collusion. Reform of family law has made divorce much more widely available, largely because of the prominence of no-fault divorce. Because of this availability, much of the policy debate around divorce has been about whether it is now too easy to get. Consistent with this framing, most of my familiarity with people barred from divorce arose in uncommon circumstances: for example, a woman denied a religious divorce by her spouse, even though a civil divorce was finalized. Similarly specific, and currently moot, were pre-Obergefell paradoxes in which a same-sex couple married in one state and then moved to a second state that refused to grant a divorce since State #2 didn’t want to recognize their marriage as legally existing in the first place.
The light Professor Higdon casts on separated but never divorced couples is thus a welcome complication recognizing a very practical problem of access to the legal system. As Professor Higdon discusses, the Supreme Court has contemplated the harm of barring access to divorce in Boddie v. Connecticut, a 1971 case holding that hinging access to divorce on first paying a number of fees to the state violated the due process rights of indigent people who could not afford to end their marriages. But as Professor Higdon demonstrates, theoretical access to divorce does not always translate to practical access.
The second reframing that Professor Higdon offers further twists traditional assumptions about the state’s view of divorce. Existing scholarship around access often sets the state’s interest in promoting marriage and stable families against the interests of individuals who wish to be free of an unhappy marriage. Professor Higdon focuses on the state’s interests, which he argues actually align with the individual’s. For example, because states are interested in promoting marriage, one might assume that the state would always wish to discourage divorce. Professor Higdon points out, however, that facilitating legal divorce for the “separated but never divorced” population would actually promote marriage, as it would free those people to remarry into functional partnerships. Furthermore, divorce has protective functions that the state would want to operate on behalf of economically weaker spouses who may have simply been abandoned or otherwise disadvantaged in an entirely informal split; later spouses of the separated partners who might discover years after the fact that their marriage is invalid due to the partner’s existing first marriage; and children of the relationship who may not have received the state’s attention in custody and child support proceedings arising out of a legal divorce. This flip from the individual’s rights and choices to the state’s policy and normative choices is counterintuitive in the best way, enriching and deepening how scholars consider divorce.
In order to make divorce more accessible to the permanently separated population, Professor Higdon proposes universal access to no-fault divorce, increased availability of legal aid to assist in securing a formal divorce, and broader adoption of summary dissolution procedures. The last of these, allowing swift and automatic divorce for eligible couples, would be the common law divorce of the title. Professor Higdon outlines some of the criteria that could be used to establish eligibility for summary dissolution–whether a couple has children, length of the relationship, amount of marital property, and so on. An entire second article could likely be written about these criteria, as they raise so many questions about when and why the state might attempt to exercise some protective control over dissolutions and where it might not.
Professor Higdon’s analysis also intersects with the work of several incisive scholars writing about nonmarital relationships in interesting ways. For example, Albertina Antognini’s article on nonmarital contracts chronicles how courts refuse to enforce private agreements between unmarried partners. One of the specific reforms that Professor Higdon proposes is a form of summary dissolution that converts a private separation agreement into a divorce decree. Suppose a state were to adopt Professor Higdon’s proposal. Might it extend into a greater willingness to enforce broader agreements between nonmarital partners that Professor Antognini shows are not enforced? Kaipo Matsumura wrote about whether state treatment of domestic partnerships post-Obergefell violated an asserted right not to marry–his nuanced take on the autonomy rights that would protect an individual’s choice to never be married have interesting theoretical implications for Professor Higdon’s discussion of the importance of facilitating exit from an existing marriage. Common Law Divorce thus offers the reader a variety of takeaways: provocative but persuasive policy proposals for legislators, an accessible hook into classroom discussion for family law teachers, and deeper food for thought for family law scholars writing about relationships of all kinds.
