Terms of endearment: can more flexible marriage laws save the American family?

• Author: Parkman, Allen M.

Few situations have ever been as idyllic as the traditional family portrayed in the 1950s television series Father Knows Best. So it's natural for politicians, especially those of a conservative bent, to glorify the family of an earlier era and call for its reestablishment. Last year's Murphy Brown-inspired controversy about "family values" reflected the power of this theme.

Certainly families of the kind depicted in Father Knows Best have declined in recent decades. The proportion of American adults who are married is falling, the share of children born to unwed mothers has soared, and most Americans under age 18 will spend part of their childhoods living with only one parent. A look at a few statistics confirms the move away from traditional marriage and family patterns:

* The percentage of households consisting of married couples fell from 79 percent in 1950 to 55 percent in 1991.

* Non-family households--mostly people who live alone--grew from 10 percent to 30 percent of households during the same period.

* Between 1956 and 1990, the median age at first marriage rose from 20.1 to 24 for women and from 22.5 to 26 for men.

* Since 1950, the percentage of American families headed by women has nearly doubled, to 17 percent.

* Thirty-one percent of one-parent families are now headed by never-married women, in contrast to 6.5 percent in 1970.

During last year's presidential campaign, candidates responded to these changes with a variety of polemics and proposed solutions. But the debate ignored one of the most important factors behind the decline of the American family: government regulation of marriage and divorce. In particular, the shift to no-fault divorce is a major reason family life has become less attractive to many Americans. Under the no-fault divorce laws of most states, one spouse may unilaterally dissolve a marriage. These laws have reduced the incentives for spouses to commit themselves to their relationship and have caused many other people to either delay or forgo marriage.

Decrying these developments, some conservatives have called for a return to the old, fault-based divorce regime, under which marriages were harder to dissolve. But that system was abandoned because many people were dissatisfied with it, just as many are dissatisfied with current marriage laws. Rather than adopt a different one-size-fits-all solution, the government should give couples embarking upon marriage the freedom to make whatever arrangements best suit their needs and desires. This could be accomplished if the states simply extended to marriage agreements the same latitude as commercial contracts.

The government's role in regulating marriage has moral and religious roots, but it is also an attempt to stop individuals from imposing costs on other members of society. Children born out of wedlock can be a burden on others, since they are more likely to need outside support, whether private charity or public welfare. This problem was magnified in a world of limited contraceptives and low incomes. Government therefore established penalties for sex outside of marriage. Richard Posner, a federal appeals-court judge and law-and-economics scholar, argues that the history of public policy toward sex since the beginning of the Christian era is a history of efforts to confine sexual activity to marriage.

In addition to the stick of government penalties, the carrot of economic incentives has tended to encourage marriage. Economist and Nobel laureate Gary Becker argues that marriage is reinforced not only by romance and sexual attraction but also by the extra goods and services that married couples and their children can enjoy.

Some of these benefits come simply from sharing a household. People who live together can increase their welfare through both specialization and joint consumption. For example, one person can do the shopping while the other does the...