Monday, September 29, 2014

Areen on the Reformation Roots of American Marriage and Divorce Law

Judith Areen, formerly dean of the Georgetown University Law Center, from which she is now on leave, serving as Executive Director of the Association of American Law Schools, has posted
Uncovering the Reformation Roots of American Marriage and Divorce Law, which appears in the Yale Journal of Law & Feminism 26 (2014): 29-85.  Here is the abstract:    
The roots of American family law were planted nearly four centuries ago when New England Puritans embraced civil marriage and divorce. In England, by contrast, marriage was overseen by the ecclesiastical courts until the mid-eighteenth century, and courts did not grant divorces until well into the nineteenth century. This article identifies and analyses the non-English sources of American family law. The theological case made by Martin Luther in the early sixteenth century for preferring marriage (and divorce) to celibacy laid the conceptual foundation for both civil marriage and fault-based divorce. The Zurich Ordinance of 1525 was not only the first modern marriage and divorce law, it contained no-fault as well as fault grounds for divorce. The reform marriage and divorce practices the Puritans brought with them to New England not only were not English, they were strikingly similar to those of Reformation Europe.

Secular control of marriage was adopted by the colonies outside of New England as well, not because of sectarian disputes, but because the Church of England was not able to establish ecclesiastical courts that could oversee marriage as they did in England. Thus a complex mix of sectarian differences and the absence of ecclesiastical courts explains the paradox of why the United States, despite the religious fervor of many of its original colonists, nonetheless was a pioneer in adopting secular marriage and divorce law.

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