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No-fault divorce is a divorce in which the dissolution of a marriage requires neither a showing of wrong-doing of either party nor any evidentiary proceedings at all. Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party to the marriage, without requiring the petitioner to provide evidence that the respondent has committed a breach of the marital contract. Laws providing for no-fault divorce also limit the potential legal defenses of a respondent who would prefer to remain married.
No-fault divorce was pioneered by the Bolsheviks following the Russian Revolution of 1917. Before the Revolution churches, mosques, and synagogues defined family life. It was the ecclesiastical law of the various denominations that controlled the family, marriage, and divorce. For example, the official registration of birth, death, marriage, and divorce was the responsibility of the church parish. Under these non-secular laws, divorce was highly restricted.
The 1918 Decree on Divorce eliminated the religious marriage and the underlying ecclesiastical law, by replacing them with civil marriage sanctioned by the state. Divorce was obtained by filing a mutual consent document with the Russian Registry Office, or by the unilateral request of one party to the court. The divorce law under the Bolsheviks did not penalize the husband with alimony, child support, or debtor's prison for non-payment. The two partners were entirely free of legal obligations to each other after divorce.
Prior to 1968, the only ground for divorce was adultery. However, in 1968, the Divorce Act was amended to permit divorce for other reasons, including adultery, physical and mental cruelty and separation for at least 3 years. In 1986, the Divorce Act was further amended to permit divorce after one year's separation, with no requirement to prove "fault" by either spouse.
"No-fault" divorce in the United States originated in the state of California effective January 1, 1970. At that time, lawyers and judges objected to the legal fictions used to bypass statutory requirements for obtaining a divorce, which had become more commonplace since the mid-20th century.
Prior to the no-fault divorce revolution, a divorce could be obtained only through a showing of fault of one of the parties in a marriage. This was something more than not loving one another; it meant that one spouse had to plead that the other had committed adultery, abandonment, felony, or other similarly culpable acts. However, the other spouse could plead a variety of defenses, like recrimination (essentially an accusation of "so did you"). A judge could find that the respondent had not committed the alleged act or the judge could accept the defense of recrimination and find both spouses at fault for the dysfunctional nature of their marriage. Either way, the judge could refuse to dissolve the marriage, although it was also possible for the judge to grant one or both parties a divorce.[1]
These requirements could be problematic if both spouses were at fault or if neither spouse had committed a legally culpable act but both spouses desired a divorce by mutual consent. Lawyers began to advise their clients on how to create legal fictions to bypass the statutory requirements. One such method was referred to as "collusive adultery", in which both sides deliberately agreed that the wife would come home at a certain time and discover her husband committing adultery with a "mistress" obtained for the occasion.[2] The wife would then falsely swear to a carefully tailored version of these facts in court (thereby committing perjury). The husband would admit a similar version of those facts. The judge would convict the husband of adultery, and the couple could be divorced.
In many other states, especially California, the most popular allegation for divorce was cruelty (which was then unavailable in New York). For example, in 1950, wives pleaded "cruelty" as the basis for 70 percent of San Francisco divorce cases.[2] Wives would regularly testify to the same pitiful (and often false) facts: their husbands swore at them, hit them, and generally treated them terribly.[2]
This procedure was described by California Supreme Court justice Stanley Mosk:
Some lawyers and judges objected to the legal fictions used to satisfy the requirements for divorce and felt that they made oaths meaningless and threatened to hamper the integrity of the American justice system by making perjury into a commonplace occurrence. As early as the 1930s, a treatise on American family law included the following:
In addition, advocates for no-fault divorce argued that the law should be changed to provide a straightforward procedure for ending a marriage, rather than, in their view, forcing a couple who couldn't get along to choose between living together in "marital hell" or lying under oath in open court. The most prominent advocate of this position was feminist law professor Herma Hill Kay (a former dean of UC Berkeley School of Law).[5]
At its convention in 1947, the National Association of Women Lawyers (NAWL) voted to draft and promote a bill that would embody the ideal of no-fault divorce and describes its efforts to promote the passage of no-fault divorce laws as "the greatest project NAWL has ever undertaken."[6]
"No-fault" divorce was pioneered in the United States by the state of California when Governor Ronald Reagan signed into law the Family Law Act of 1969 on September 4, 1969 (effective January 1, 1970).[7] The Act abolished California's common law action for divorce and replaced it with the proceeding for dissolution of marriage on the grounds of irreconcilable differences. The grounds of irreconcilable differences were accepted as true, based on the assertions of one of the parties to the marriage, and thus the Family Law Act of 1969 eliminated the showing-of-fault requirements to obtain a divorce both for spouses seeking a divorce by mutual consent, and in cases where only one of the parties to the marriage wants a divorce.[8]
At about the same time that California adopted "no-fault" divorce, the National Conference of Commissioners of Uniform State Laws (NCCUSL) appointed a committee to draft a uniform marriage and divorce law for consideration by state legislatures, and the American Bar Association's Family Law Section was asked to appoint a committee to work with the committee from the NCCUSL.[9] The initial draft of the Uniform Marriage and Divorce Law written by the NCCUSL committee would direct judges to grant the petitioner's request to end the marriage if the judge found that the marriage was "irretrievably broken", a term which this draft did not define.[9] Because the term "irretrievably broken" was not defined, the committee from the American Bar Association (ABA) Family Law Section disapproved of this draft of the Uniform Marriage and Divorce Act.[9] In response, the NCCUSL committee added a 180-day separation requirement in order for judges to find that the marriage had been irretrievably broken.[9] However, the NCCUSL committee also added language to allow judges to grant a petitioner a divorce if "there is serious marital discord adversely affecting one or both parties toward the marriage."[9]
The committee from the ABA Family Law Section objected to the ability of a petitioner to avoid the 180-day separation requirement by asserting "serious marital discord."[9] In his letter recommending that the American Bar Association House of Delegates not approve the amended draft proposed by the NCCUSL, Arnold J. Gibbs, the chairman of the ABA Family Law Section, stated that the NCCUSL proposed draft created a rubber stamp type of divorce procedure. Mr. Gibbs wrote the following:
Copies of the recommendation to disapprove the NCCUSL's amended draft were provided to the National Conference of Commissioners of Uniform State Laws (NCCUSL), Young Lawyers Section and the National Association of Women Lawyers (NAWL).[10] The committee from the NCCUSL refused to further amend its draft of the Uniform Marriage and Divorce Act.[9][10]
At the 1974 midwinter meeting of the American Bar Association in Houston, Council members of the Family Law Section indicated dissatisfaction with the public image the section was getting from its opposition to the NCCUSL's draft of the Uniform Marriage and Divorce Act. In a policy statement the ABA Family Law Section chose to recognize separation only as conclusive evidence of marital breakdown and not as an unbending test, implying that other evidence to establish marital breakdown would be admissible."[9]
By 1977 nine states had adopted no-fault divorce laws[6] and by late 1983, every state but South Dakota and New York had adopted some form of no-fault divorce (although some forms were not as easy to obtain as that in California).[11] South Dakota finally adopted no-fault divorce in 1985. [12] New York still lacks a unilateral "no-fault" divorce statute; under New York divorce law only if both parties notarize a separation agreement and live separately for one year, can a judge convert it into a divorce.
In August 2000, Attorney Ed Truncellito filed suit against the State Bar of Texas, alleging the no-fault law in Texas was misapplied because he asserts that the legislative history of no-fault divorce law in Texas makes it clear that the law was meant for uncontested cases only.[13]
Australia's laws on divorce and other legal family matters were overhauled in 1975 with the enactment of the Family Law Act 1975, which established "no-fault" divorce in Australia. Since 1975, a divorcing couple need only establish a twelve month separation; they need not show either party is at "fault" for the divorce to be granted by the Family Court of Australia. However, a residual "fault" element remains in relation to child custody and property settlement issues.
Swedish law does not include a showing-of-fault requirement for divorce. The couple can file for divorce together or one party can file alone. If one party does not wish to get divorced or if they have children under 16 living at home there is a required contemplation period of 6 to 12 months. During this period they stay married and the request must be confirmed after the waiting period for the divorce to go though.[14]
There has been a substantial movement in favor of the revival of fault in the context of divorce in the United States.[15]
Members of the fathers' rights movement state that laws
establishing no-fault divorce did not stop at removing the
requirement that grounds be cited for a divorce, so as to allow for
divorce by "mutual consent"; they also allow either spouse to end
the marriage without any agreement or fault by the other.[16]
They state that no-fault divorce should be referred to as
unilateral divorce.[17]
Members of the fathers' rights movement state that laws
establishing no-fault divorce can be seen as one of the boldest
social experiments in modern history that have effectively ended
marriage as a legal contract.[13]
They also state that it is not possible to form a binding agreement
to create a family, adding that government officials can, at the
request of one spouse, end a marriage over the objection of the
other.[13]
They add that no-fault divorce has left fathers with no protection
against what they describe as the confiscation of their
children.[18]
Members of the fathers' rights movement propose "reasonable limits" on no-fault divorce where children are involved.[19] Other commentators on no-fault divorce propose an amendent to no-fault divorce laws to create a (rebuttable) presumption of custody of any minor children for the respondent [who is innocent or does not wish to divorce] regardless of gender. Tim O'Brien, a proponent of the proposed amendment and a Libertarian, predicts that the proposed amendment would result in a plummeting divorce rate, and would reduce the negative consequences of divorce for children.[20]
Columnist Melanie Phillips wrote that "the divorce laws...were reformed by unrepresentative groups with very particular agendas of their own and which were not in step with public opinion."[13]
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