Document Type

Book Chapter

Publication Date



Samuel Johnson once wrote, "It is so far from being natural for a man and woman to live in a state of marriage that we find all the motives which they have for remaining in that connection, and the restraints which civilized society imposes to prevent separation, are hardly sufficient to keep them together." In this chapter I shall pursue Dr. Johnson's provocative suggestion by asking what restraints (if any) society might impose through law on couples to join them in marriage in the first place and to keep them in it after they have married.

But why might society wish to do so? For the purposes of this chapter, I am instructed to make a crucial, if controversial, assumption. I am required to assume that, in general, it is best for spouses to make an enduring marriage and for their children to be brought up by both of their parents in a stable home. Like most worthwhile assumptions about social life, this one may be wrong. No doubt there will always be individual cases where the spouses and their children alike will benefit if the marriage ends. Nevertheless, it seems to me a plausible and useful social generalization that couples will be happiest where they can develop a relationship on whose permanence both can depend and build and that children will prosper most where they can rely securely on the attention of two committed caretakers.

My assignment imposes a (not unwelcome) limitation. I will not survey the entire range of governmental policies that might enhance marital stability. Rather, I will limit this essay to those rules that fall within the field of "family law." I will leave to people more expert than I those family policies that fall within the category of social welfare programs. Obviously, this limitation is not born out of any belief that those programs cannot contribute significantly to marital stability ( or, even failing that, to the happiness of families and the children in them). Quite the contrary. For example, single-parent families may be relatively common in some communities because in them young men cannot easily find the jobs they need to make marriage seem reasonable. And divorce rates seem to fall as income rises. If these observations are correct, programs to alleviate poverty might well do more to promote marriage and marital stability than the more direct ministrations of family law.

In sum, then, I will ask how family law can promote the marital stability that we hope will lead to happier couples and happier children. I will argue that family law tries to serve that goal by some direct means. But I will contend that it tries to do so more broadly by indirect means-by laboring to shape and support the social institution of the family. In recent decades, that social institution appears to have weakened, perhaps so much so that the family is beginning to be deinstitutionalized. And in that period, family law has, if anything, contributed to this trend. This raises the question whether the trend can be reversed. To answer that question, I will systematically survey family law's repertoire of rules. I will then canvass some of the limits of those tools. I will close by concluding that those limits are substantial, but that it does not follow either that there is no useful work to be done or that the law must do it all.


All rights reserved. Please contact the publisher for permission to copy, distribute or reprint. Pg 187-213, The Law and the Stability of Marriage: The Family as a Social Institution by Carl E. Schneider, 1996, reproduced by permission of Rowman & Littlefield.