Forty Years of No Fault Divorce

May 25, 2009

Divorce, '60s style, can be viewed in TV's MAD MEN.

This year marks the fortieth anniversary of the introduction of No Fault Divorce in America. It started, as so many trends start, in California when Governor Ronald Reagan signed the Family Law Act in September of 1969.

The act allowed for the dissolution of a marriage on the grounds of irreconcilable differences. Accepted as true, based on the assertions of one of the parties to the marriage, and thereby 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.

By 1977 nine states had adopted no-fault divorce laws and by late 1983, every state but South Dakota and New York had adopted some form of no-fault divorce.

And yes, for good and for bad, no-fault divorce changed our perceptions of marriage.

In the forty years since the creation of no fault divorce, it has been blamed for everything from the rapidly escalating divorce rate to the collapse of moral standards in America. Remember, of course, that the concept of no fault divorce is not limited to America. It has spread to most of the industrialized and democratic nations of the world. And an interesting aside, the roots of no fault divorce go back to 1918 and the Russian Revolution.

Before the revolution churches, mosques, and synagogues defined the terms and conditions of family life. It was the ecclesiastical law of the various denominations that controlled marriage, and divorce. For example, registration of birth, death, marriage, and divorce certificates were all the responsibility of the local parish church. Under church laws, divorce was highly restricted.

The Russian Decree on Divorce issued in 1918 eliminated the institution of religious marriage and its underlying ecclesiastical law, and replaced it with a system of civil marriage that was sanctioned only by the state. Divorce was obtained by filing a mutual consent document with the Russian Registry Office, or by the unilateral request of simply one party to the court.

In America, prior to the age of no fault divorce, a divorce could only be obtained through a showing of fault of one of the parties in a marriage. This was something more substantive than the claim of not loving one another. One spouse had to plead that the other had committed adultery, abandonment, felony, or other similarly culpable acts. The other spouse could plead, however, a variety of defenses.

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.

These requirements could be daunting if both spouses were at fault or if neither spouse had committed a legally culpable act but both spouses were simply seeking a divorce based on mutual consent. To get around this lawyers began to advise their clients on how to create what were described as “legal fictions.”

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. The wife would then falsely swear to a carefully tailored version of these facts in court. The husband would admit a similar version of those facts. The judge would convict the husband of adultery, and the couple could be divorced. The problem in creating these legal fictions was that both parties would have to commit perjury. Creating a needless legal exposure simply to go around the requirements of the law.

What tends to be forgotten now that the inception of no fault divorce is approaching its fortieth birthday, was just how intrusive the previous system was on a couple seeking a divorce. Additionally, while divorce rates have indeed climbed over the past four decades, baby boomers, who were often the children of unhappy parents, tell equally troubling stories of loveless marriages.

No legal application making divorce more or less accessible will ever take the place of counseling both before or after a couple has decided to marry. The success of healthy marriages is not determined by the ease or difficulty of getting a divorce. Rather it is determined by the level of commitment a couple has for one another and the support they have from family, friends, and community to assure that they will continue to succeed.

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Other MVL Articles on Divorce

3 Steps for Mending a Broken Heart

Can You Ever Forgive Him? Yes, and Here’s How

Date Again, But Don’t Sleep Around

Fighting a Divorce Online: A Cautionary Tale

Divorced? Don’t Hurt Your Chances for Finding Love Again

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Mars and Venus Starting Over

Is John Gray’s book specifically for those who are divorced

and looking to move on from grief to love.

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