It’s with unintentional irony that we note the 40-year anniversary of something that, according to some, has enabled fewer anniversaries — of the wedding kind — over the last four decades than anything else: no-fault divorce.
Before No-Fault Divorce
Prior to no-fault divorce, spouses seeking divorce had to prove that their partner was at fault for the marriage breakdown. Accepted legal grounds for divorce included (but were not limited to) physical or mental abuse, abandonment, insanity, or lack of sexual intimacy.
Why No Fault Divorce?
viewed burden of proof to be too heavy for divorcing people;
particularly on women, who simply didn’t have the resources or means to
prove that their husband was
at-fault for the broken marriage. No-fault divorce was therefore created
to alleviate this burden, and create a more civil, humane, practical
and accessible divorce process. While financial, custodial and other
issues would still remain in the hands of the court (unless a negotiated
settlement between spouses was reached), a unilateral claim of
“irreconcilable differences” was sufficient to end a marriage.
The Legislative Process
Signed into law on
September 4, 1969 by California Governor Ronald Reagan, no-fault divorce
quickly spread across the US; first to Iowa, and then to Colorado,
Florida, Michigan and Oregon. By 1985, all states had enacted no-fault
divorce legislation except one: New York .
Why not New York?
New York legislators
worried that instead of making divorce more civil and humane for women,
no-fault divorce would have the opposite effect: it would weaken a
woman’s ability to gain leverage in divorce proceedings, ultimately
exposing them to unfair settlements. In other words, the courts would
grant wives less alimony from their
cheating, abusive, neglectful (and so on) husbands, because there was
no issue of fault — it wasn’t even something that wives could argue in
their favor. As such, under New York Divorce law, both spouses must
first formally separate for a year before divorce is established.
UPDATE: New York legislators have begun debating no-fault law as an option. Read more here.
No-Fault in Canada
In Canada, renovations
to the Divorce Act in 1968 created a variation of no-fault divorce that
put aside the need for spouses to prove fault, and replaced it with a
practice similar to the one adopted by New York (formal separation for
The Story so Far
So after 40 years,
we’re obliged to ask the big, booming question: has no-fault divorce
been successful? Has it achieved fairness, civility and equity? Has it
empowered individuals and protected their rights; particularly women? Or
has it had the opposite effect of undermining the family unit, exposing
innocent spouses — including women — to the unilateral, life-changing
decisions of their unscrupulous partners?
As with all unresolved debates, the answers depend on which camp you ask.
Critics of No Fault Divorce
Critics of no-fault
divorce are — to put it mildly — unimpressed by its impact and legacy.
They claim that it has thrown open the doors of divorce and is directly
responsible for the increased divorce rate (more on this in a moment).
They further claim that it has weakened the concept of family to the
point that it has made divorce the norm; not the exception. Spouses can
now take the “easy way out” by seeking a divorce, regardless of the
impact this has on families — especially children and extended family
members. And if we go further right on the religious-political spectrum,
one hears the opinion that no-fault divorce has encouraged the rise of
same-sex unions, which this group deems immoral.
Proponents of No Fault Divorce
On the other hand,
proponents of no-fault divorce accept it as an essential right that a
married individual is mercifully entitled to; especially in light of the
fact that, as noted above, divorce was traditionally a burdensome — if
not impossible — task for many women to achieve. Furthermore, they
claim that no-fault divorce leads to less confrontational divorces, which is good for everyone; especially children.
It also reduces the time and complexity of divorce proceedings, which
helps reduce the burden on overwhelmed and under-resourced family
of no-fault divorce point to its direct, unwanted role in increasing
divorces; a rate that author, lawyer and sociologist Thomas Marvell pegs at 20-25%.
However, proponents of
no-fault divorce respond by pointing out that there are many other
factors that influence divorce, and furthermore, the statistics prior to
no-fault divorce were hardly idyllic. According to
Miami lawyer Stanley Rosenblatt, whose 1969 book “The Divorce Racket” was a driving force in the no-fault movement:
- prior to no-fault divorce, 25% of marriages were already ending in divorce – it wasn’t a new or rare social concept at all;
to no-fault divorce, 85% to 90% of divorces were uncontested — which
meant that most divorcing spouses were engaged in some form of “no
fault” divorce even before it existed;
- prior to no-fault
divorce, spouses spent surprisingly little time choosing their partner
— which defied the myth that no-fault divorce encouraged more
“impulsive” (i.e. doomed from the start) marriages.
Despite being 40 years
old, the jury on this debate is still out — and there is no resumption
in sight. Critics and proponents continue to fire a mixture of
arguments, opinions, accusations, and statistics
at the other; some of them factual, some of them fictional, and some of
them in the middle. And now that the debate has made its way to the
Internet and its organic blogosphere world, more fuel is being added to
At the very least, we can hope that this debate, in whatever shape and form it takes, strives to be civil, humane, responsible and fair. Ultimately, that’s what everyone — critics and proponents alike — can agree that this is what divorce should be.
How we get there, and how soon, remains to be seen. It’ll probably take a least another 40 years — likely more.