Everything about No-fault Divorce totally explained
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.
Russian History
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.
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."
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. 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.
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's well known that the parties often seek to evade the statutory limitations and thus there's great danger of perjury, collusion, and fraud . . . . In many cases no defense is interposed, and often when the case is contested the contest isn't waged with vigor or good faith.
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. 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).
"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). 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). South Dakota finally adopted no-fault divorce in 1985. 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
Australia
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.
Criticism
Members of the fathers' rights movement state that laws establishing no-fault divorce didn't 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. They state that no-fault divorce should be referred to as unilateral divorce. 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. They state that it isn't 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. Members of the
fathers' rights movement propose "reasonable limits" on no-fault divorce where children are involved.
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. However, in 1996, sociologist Richard J. Peterson reevaluated Weitzman's data used in her 1985 publication. He claims that her analysis severely overestimated the economic impact of no-fault divorce. 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." 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.
Further Information
Get more info on 'No-fault Divorce'.
|
External Link Exchanges
Do you know how hard it is to get a link from a large encyclopaedia? Well we're different and will prove it. To get a link from us just add the following HTML to your site on a relevant page:
<a href="http://no-fault_divorce.totallyexplained.com">No-fault divorce Totally Explained</a>
Then simply click through this link from your web page. Our crawlers will verify your link, extract the title of your web page and instantly add a link back to it. If you like you can remove the words Totally Explained and embed the link in article text.
As long as your link remains in place, we'll keep our link to you right here. Please play fair - our crawlers are watching. Your site must be closely related to this one's topic. Any kind of spamming, dubious practises or removing the link will result in your link from us being dropped and, potentially, your whole site being banned. |
