Two individuals meet, engage in an intimate, not necessarily sexual, relationship and marry. The two join in a union with the promise to spend the remainder of their natural lives together. But forever is not forever. On a national level, over 50 percent of marriages end in divorce.' Perhaps marriage vows should include a statement about the inevitability of divorce. States' divorce laws vary, from faultbased, to no-fault, to a statutory period of separation. Some states recently made it easier for individuals to be granted a divorce. Reasons for making it easier to end marriages could have been related to the increased incidences of domestic violence. Or the reasons could simply be related to a change of times. By making it easier to get a divorce, states may have simply played piper to individuals wanting to end their marriages without being forced to prolong the inevitable. Rather than prolong an unwanted marriage, the move to no-fault divorce was to serve as an out of a failing marriage. Such a move could have created an environment where rather than try to resolve differences individuals simply divorced their married partner. The divorce rate has reached an all time high and it would not be a stretch to assume that there is a correlation between the high divorce rate and the move to a no-fault system. The break down of the family structure resulting from the high divorce rate is also of concern to states. In an attempt to prepare individuals for marital conflicts and resolves, Florida enacted the Marital Preparation and Preservation Act. The purpose of the act, I presume, is to educate individuals about the marital union before the marriage ceremony. Education prior to the union would presumably prepare couples for conflicts that may arise during the union and would therefore have the affect of saving the marriage. The Marital Preparation and Preservation Act provides that individuals are to enroll in classes prior to entering into a marriage union. The Act does not make it mandatory for individuals to enroll in such classes but it does provide for a reduction in the marriage license fee for individuals who choose to enroll. The Act does, however mandate a three-day waiting period for individuals who do not enroll in such classes. Why would a state such as Florida enact such a statute when Florida made it easier to divorce? Florida is now a no-fault state, which means married individuals meeting residency requirements simply file for divorce once they believe the marriage is irretrievably broken. What are the states' expectations for enacting such a statute? To preserve marriages, to prepare individuals for the union of marriage or to prepare individuals on how to care for children who are brought into the union? Or could it be to set the standard for the norms, values, and morals of the state? If the states' interests are in preserving marriages then why not simply require fault on a party prior to granting a divorce? If the state's interest is in preparing individuals for the union or preparing individuals for children who may be brought into the union then is the state overstepping it's bounds with such a statute because of the privacy nature of child rearing? If the state's interest is in setting the norms, values and morals, then is it overstepping it's bounds by commingling the church with the state and/or also interfering with a family's private family values? How will the state dictate who instructs the courses? Can an instructor be a divorcee? On what basis will the state determine the content of the material? What role will religion play? If religion has any role is there a church and state conflict? Could such a course cause a conflict to arise if individuals do not share the same religion or have no religion at all? Can state government enter into a contract with individuals premarriage for a lifetime commitment post-marriage-- a contract that two free engaging individuals are, purportedly, failing to uphold at alarming rates? Should the government engage in this type of bargaining? If not a contract, is it an unconstitutional imposition? What are other countries doing with regard to maintaining marriages? Are other countries' divorce rates as high as the United States'? Is it a jurisdictional problem, an international one, or is it simply a matter for concern in the United States? Who will prepare the individuals for this lifetime commitment? Will we require the educators to be married? Will we prohibit the educators from divorcing? How will such an Act impact the fundamental right to marry which includes a right not to, and to end it? These are some of the questions I probe as I consider whether marriage preparation and preservation acts are constitutionally sound.
Lundy R. Langston, Save the Marriage before (Not after) the Ceremony: The Marriage Preparation Act - Can We Have a Public Response to a Private Problem, 9 U. MIAMI INT'l & COMP. L. REV. 141 (2000-2001).