Product Code Database
No-fault divorce is the dissolution of a marriage that does not require a showing of wrongdoing by either party. (2025). 9780787663742, Thomson/Gale. ISBN 9780787663742 Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party of the marriage without requiring the petitioner to provide evidence that the defendant has committed a breach of the marital contract.
The first modern no-fault divorce law was enacted in Russia in December 1917 following the October Revolution of the same year. Regarding marriage as a bourgeois institution, the new government transferred divorce jurisdiction from the Russian Orthodox Church to the state courts, which could grant it on application of either spouse. Alimony guarantees under the new regime were weak until a new family code was passed in 1926.
With a law adopted in 1969, California became the first U.S. state to permit no-fault divorce. California's law was framed on a roughly contemporaneous effort of the non-governmental organization National Conference of Commissioners on Uniform State Laws, which began drafting a model of no-fault divorce statute for states to consider in 1967. A Reminiscence About The Uniform Marriage and Divorce Act-and Some Reflections About Its Critics and Its Policies, Robert J. Levy, 44 BYU L. Rev. 43 (1991)
The Uniform Marriage and Divorce Act (UMDA) is a model law in the United States and has been used since 1970.
Australia established no-fault divorce in 1975, with the only ground for divorce being irretrievable breakdown of marriage, evidenced by a twelve-month separation. Canada effectively permitted no-fault divorce in 1986 by reducing the separation period to one year.
Stephanie Coontz, a professor of history at Evergreen State College, states that "in the years since no-fault divorce became well-nigh universal, the national divorce rate has fallen, from about 23 divorces per 1,000 married couples in 1979 to under 17 per 1,000 in 2005." She adds that "once you permit the courts to determine when a person's desire to leave is legitimate, you open the way to arbitrary decisions about what is or should be tolerable in a relationship, made by people who have no stake in the actual lives being lived."
A 2010 New York Times editorial said that New York was "the only state where a court must find fault before granting a divorce unless the spouses have lived apart for a full year under a formal separation agreement — a proven formula for inviting false testimony, endless litigation and generally making divorce far more painful than it needs to be." Later that year, New York became the final state to allow no-fault divorce. Lawyer L. M. Fenton states that "Feminist holdouts against New York's new no-fault bill don't understand how family law affects women today", adding: "It also mystifies me that spouses could still, even in 2010, be forced to stay married to someone who refused to let go."
Fault-based grounds usually include mental cruelty, but true mental cruelty has a psychological component that can make it very difficult for the abused spouse to articulate that abuse. More to the point, the abused spouse may be terrified to describe the relationship on paper and testify about it in a court. And of course, a controlling partner will always choose the path of most resistance to whatever it is that the other spouse wants.
The state adopted no-fault divorce later that year.
Upon the introduction of no-fault divorce in England and Wales in 2022, the United Kingdom Government stated that it would allow couples to focus on agreeing important arrangements for the future such as those involving children, finance and property as opposed to proving fault at a time when emotions are already running high.
A paper published in the Harvard Journal of Law and Public Policy, written by Douglas Allen, on the economics of same-sex marriage, argues that the introduction of no-fault divorce led to a six-fold increase in just two years, after a century of rather stable divorce rates. Also, the law increased the rate at which women entered the workforce, increased the number of hours worked in a week, increased the feminization of poverty, and increased the age at which people married.
Divorce may be granted either by court or by a marriage registration office. The latter can only do so when both parties have reached an agreement on child custody and property settlement.
Some provisions of the old, guilt-based system remain. In particular, the separation period required before a formal divorce can be shortened if "the continuation of the marriage would be an unreasonable hardship for the petitioner for reasons that lie in the person of the other spouse". While formally no guilt is required on the part of the spouse, in practice this rule is usually applied if the spouse acts irresponsibly, for example if they are violent or threaten their partner.
The 1918 Decree on Divorce eliminated the religious marriage and the underlying ecclesiastical law, 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, as every individual was to be provided for by the state anyway. The two partners were entirely free of legal obligations to each other after divorce. The concept of child support, however, was introduced to the family law of Russia in the 1990s after the fall of the Soviet Union.
Following years of campaigning by the legal community, parliament passed the Divorce, Dissolution and Separation Act 2020, which came into force on 6 April 2022, under which a spouse only has to declare to the court, without having to prove fault or separation, that their marriage has irretrievably broken down. This reform also applies to dissolving a civil partnership.
Scotland permits de facto no-fault divorce under certain grounds set out by the Divorce (Scotland) Act 1976 (as amended by the Family Law (Scotland) Act 2006). One example where no-fault divorce is allowed in Scotland is when a couple proves they have resided separately for at least a year and non-fault divorce can therefore be granted with the consent of the other party.Stair, Child and Family Law (Reissue), para. 600 (Online) Retrieved 25 August 2020
Before no-fault divorce was available, spouses seeking divorce would often allege false grounds for divorce. Removing the incentive to perjure was one motivation for the no-fault movement.
In the states of Wisconsin, Oregon, Washington, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Illinois, Iowa, Indiana, Hawaii, Florida, Colorado and California, a person seeking a divorce is not permitted to allege a fault-based ground (e.g. adultery, abandonment or cruelty).
In some states, requirements were even more stringent. For instance, under its original (1819) constitution, Alabama required not only the consent of a court of chancery for a divorce (and only "in cases provided for by law"), but equally that of two-thirds of both houses of the state legislature. The required vote in this case was even stricter than that required to overturn the governor's veto in Alabama, which required only a simple majority of both houses of the General Assembly. This requirement was dropped in 1861, when the state adopted a new constitution at the outset of the American Civil War.
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. Wives would regularly testify to the same facts: their husbands swore at them, hit them, and generally treated them terribly. This procedure was described by Supreme Court of California Associate Justice Stanley Mosk:
Every day, in every superior court in the state, the same melancholy charade was played: the "innocent" spouse, generally the wife, would take the stand and, to the accompanying cacophony of sobbing and nose-blowing, testify under the deft guidance of an attorney to the spousal conduct that she deemed "cruel." In re: Marriage of McKim, 6 Cal. 3d 673 (1972) (Mosk, J., dissenting) opinion available online at online.ceb.com
An even simpler practice for people living in states where divorce was difficult to obtain was to go "forum shopping." This meant one of the parties would move to another state where divorce laws were less restrictive, stay there long enough to become a resident, then file for divorce there. Nevada was extremely popular for this purpose as starting in the 1930s its residency requirement was only six weeks. During this period the city of Reno openly advertised itself as the "divorce capital of the world" and gained a national reputation as a divorce mill.Clint McCullough, Nevada, 1987. Chapter 28. "Divorce was big business in Nevada. Hotels and a dozen dude ranches around Reno catered to the women who arrived almost daily to put a quick end to their marriages. It was even quicker for Nevadans, who didn't have to wait out the six‑week residency requirement. A couple could fight at breakfast and be divorced by dinner time." For some couples, if there really was no problem in settling the issues of their marriage, a weekend trip to Mexico was also an option. Or in some cases, a party deciding they wanted to marry someone else could combine a filing for divorce and a new marriage in one trip to Mexico. As no-fault became near-universal, the need to use Nevada or Mexico to evade restrictive divorce laws became less and less necessary.
In divorce litigation it is well known that the parties often seek to evade the statutory limitations and thus there is great danger of perjury, collusion, and fraud. In many cases no defense is interposed, and often when the case is contested the contest is not waged with vigor or good faith.Vernier, Chester. Section 80, "Proctors" of Divorce and Separation, Vol. 2 American Family Laws: A Comparative Study of the Family Law of the Forty-eight American States, Alaska, the District of Columbia, and Hawaii, (Stanford: Stanford University Press, 1932), p. 93.
Thus, advocates for no-fault divorce argued that the law should be changed to provide a straightforward procedure for ending a marriage, rather than forcing a couple who simply 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 (who later became dean of UC Berkeley School of Law).Bishop, Katherine. "Sweet Victory for Feminist Pioneer at Law School." The New York Times, 3 April 1992, sec. A, p. 19
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."
Other states were slower to adopt no-fault divorce. For example, Pennsylvania did not introduce no-fault divorce until around 1980.
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". 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's proposed draft created a rubber stamp type of divorce procedure. He wrote: "The creation of a mere 'rubber stamp type' of divorce procedure would not be in the best interests of the family, its individual members, and society in general."
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). The committee from the NCCUSL refused to further amend its draft of the Uniform Marriage and Divorce Act.
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 its unbending test", implying that "other kinds of evidence would be admissible to establish breakdown as well."
Commentator Caroline Shanley described efforts by the American political right and men's rights activism to abolish or restrict no-fault divorce as "divorce-driven moral panic over families" that "is all too familiar and reflects a distinctly anti-woman, anti-choice agenda of its detractors". Columnist Molly Jong-Fast opined that Justice Thomas's opinion in Dobbs v. Jackson Women's Health Organization (a ruling that overturned the right to abortion established by Roe v. Wade) regarding a duty to "correct the error" established in Obergefell' ... could be the perfect maxim for men's rights activists, who've been galvanized by the end of Roe and seized another target to reverse the gains made by women: no-fault divorce."
On January 18, 2024, Senator Dusty Deevers introduced Oklahoma SB 1958, a bill aimed at modifying the grounds for divorce in the state. This bill proposes to include considerations of fault in divorce proceedings, marking a significant shift from the current no-fault divorce framework in Oklahoma.
|
|
