No-fault divorce

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No-fault divorce is a divorce in which the dissolution of a marriage requires neither a showing wrong-doing of either party nor any evidentiary proceedings at all. It is granted upon a petition by either party to a family court, without requiring the petitioner show that the respondent is at fault, and despite respondent's potential objections to the dissolution.

Contents

[edit] Russian History

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No-fault divorce was pioneered by the Bolsheviks following the Russian Revolution of 1917.[citation needed] 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.

[edit] United States History

Modern United States "no-fault" divorce came about in the 1970s because of widespread disgust among lawyers and judges at the legal fictions that had become commonplace since the mid-20th century. 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."[1]

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.[citation needed] 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 "you too"). 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 would refuse to dissolve the marriage.[2]

These rules were particularly problematic where both spouses were at fault or where neither spouse had committed a legally culpable act but could no longer tolerate the other. Lawyers began to engineer creative methods to bypass the rules. New York was notorious for "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.[3] 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.[3] Wives would regularly testify to the same pitiful (and often false) facts: their husbands swore at them, hit them, and generally treated them terribly.[3]

This procedure was described by California Supreme Court justice Stanley Mosk in a passionate dissent:

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[4]

Such empty procedures were appalling to both lawyers and judges, who felt that they made oaths meaningless and threatened to hamper the integrity of the American justice system by making perjury into a commonplace occurrence. Indeed, as early as the 1930s, a treatise on American family law complained:

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.[5]

Starting in the 1960s, numerous commentators pointed out that it might be best for the law to recognize that two spouses determined to end their marriage would obtain a divorce by any means necessary.[citation needed] They argued that the law should adapt by providing a straightforward procedure for ending a marriage, rather than 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 law professor Herma Hill Kay (the former dean of UC Berkeley School of Law).[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 1970 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."

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).[8] South Dakota finally adopted no-fault divorce in 1985.[citation needed] New York still lacks a unilateral "no-fault" divorce statue; 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.

See also: Divorce in the United States

[edit] Australia

Main article: Australian family law

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.

[edit] Criticism

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.[9] They state that no-fault divorce should be referred to as unilateral divorce.[10] They 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.[11] They 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.[11] They state that no-fault divorce has left fathers with no protection against what they describe as the confiscation of their children.[12] Members of the fathers' rights movement propose "reasonable limits" on no-fault divorce where children are involved.[1]

Another criticism of no-fault divorce is that it creates an economic incentive for mothers to initiate unilateral divorce where neither fault nor adequate grievances exist; If the mother is granted custody of any children, courts may order the father to provide the mother with support for their child.

Some family law scholars, including professor of law and sociology Lenore J. Weitzman, argue that although no-fault divorce succeeded in both reducing the widespread problem of perjury and making divorce less destructive on the family, it also had the unintended consequence of causing divisions of property and alimony upon divorce to result in greater inequality harmful to ex-wives than under the prior system. [13] However, in 1996, sociologist Richard J. Peterson reevaluated Weitzman's data used in her 1985 publication.[14] He claims that her analysis severely overestimated the economic impact of no-fault divorce.[15] Weitzman conceded that his critique was "probably correct," but that "even Dr. Peterson's figures show a significant gap between men and women in standards of living after divorce."[15]

No-fault divorce is now entering the third generation in some American families: leaving some children with parents, grandparents and great-grandparents who have been divorced. Judith S. Wallerstein, a clinical psychologist, has studied the effects of divorce since the early 1970s in her book, The Unexpected Legacy of Divorce: The 25 Year Landmark Study.[16] She states that divorce may be a long-term crisis which inflicts permanent psychological damage on the children of divorced parents. Lacking a "template to follow", these children are more likely to experience divorces or avoid marriage entirely.

[edit] See also

[edit] References

  1. ^ a b Baskerville, Stephen (2007). Taken Into Custody—The War Against Fathers, Marriage and the Family. Cumberland House. 
  2. ^ De Burgh v. De Burgh, 39 Cal. 2d 858 (1952). In De Burgh, the trial judge found both spouses guilty of cruelty against each other which had been provoked by the acts of the other. Therefore, both spouses were guilty of recrimination and neither was entitled to a divorce. The Supreme Court of California took advantage of this case to invalidate the defense of recrimination through the expansive application of equitable doctrines like clean hands, and remanded for a new trial.
  3. ^ a b c Friedman, Lawrence M. (2002). American Law in the Twentieth Century. New Haven: Yale University Press, pp. 435-36. 
  4. ^ In re: Marriage of McKim, 6 Cal. 3d 673 (1972) (Mosk, J., dissenting) opinion available online at online.ceb.com.
  5. ^ 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.
  6. ^ Bishop, Katherine. "Sweet Victory for Feminist Pioneer at Law School." New York Times, 3 April 1992, sec. A, p. 19
  7. ^ Johnson, Sharon. "No-Fault Divorce: 10 Years Later, Some Virtues, Some Flaws." New York Times, 30 March 1979, sec. A, p. 22.
  8. ^ Gest, Ted. "Divorce: how the game is played now." U.S. News & World Report, 21 November 1983, pp. 39-42.
  9. ^ Baskerville, Stephen (2007). Taken Into Custody - The War Against Fathers, Marriage and the Family. Cumberland House, 45. 
  10. ^ Phyllis Schlafly's keynote address. American Coalition of Fathers and Children (September 2006). Retrieved on 2007-05-12.
  11. ^ a b Baskerville, Stephen (2007). Taken Into Custody - The War Against Fathers, Marriage and the Family. Cumberland House. 
  12. ^ Baskerville, Stephen (2007). Taken Into Custody - The War Against Fathers, Marriage and the Family. Cumberland House. 
  13. ^ Dullea, Georgia. "How Women Fare In No-Fault Divorce." New York Times, 7 November 1985, sec. C, p. 1.
  14. ^ Weitzman, Lenore J. (1985). The Divorce Revolution. Free Press. 
  15. ^ a b Lee, Felicia R. "Influential Study On Divorce's Impact Is Said To Be Flawed." New York Times, 9 May 1996, sec. C, p. 6.
  16. ^ Wallerstein, Judith S.; Julia M. Lewis, Sandra Blakeslee (2000). The Unexpected Legacy of Divorce: The 25 Year Landmark Study. Hyperion. ISBN 978-0786863945.