No-Fault Divorce
Divorce is so commonly accepted and so easily available in all fifty U.S. states and elsewhere around the world that it’s hard to remember a time, not so long ago, when stricter laws were in effect. Divorces became much easier to obtain with the establishment of “no-fault divorce”: divorce in which neither side has to demonstrate wrongdoing on the part of the other. Courts can now grant divorces in response to a simple petition filed by either party in a marriage (or filed jointly by both parties), without requiring the petitioner to prove a breach of the marital contract. If one of the couple prefers to stay married, no-fault laws limit the ability of that party to keep the marriage valid; it’s easier for the petitioning party to force the marriage to an end.
No-fault divorce was first passed into law in the state of California in 1969, with that state’s Family Law Act. The signatory was then-governor Ronald Reagan; Elizabeth Schoenfeld, writing in Policy Review: The Journal of American Citizenship (May-June 1996), commented that “… with a stroke of his pen, California governor Ronald Reagan wiped out the moral basis for marriage in America.” This is highly ironic given that, more than forty years later, social conservatives purporting to be upholding the moral basis for marriage by opposing same-sex marriage unanimously name Reagan as among their biggest heroes. Throughout the 1970s, state after state passed similar legislation in rapid succession.
How, then, could one get a divorce before the legislation changed? Showing “fault” was more than simply a matter of demonstrating that you were no longer in love with your spouse, or that the two of you had “irreconcilable differences.” One spouse had to plead that the other had committed a genuine culpable act, such as abandonment, adultery, a felony, or something similar. The accused could then plead back that, in fact, he (or she) was only acting in response to the accuser’s own wrongdoing. Judges could then find fault on both sides — pointing out the dysfunctional nature of the marriage — and grant a divorce.
(Historically, Alabama demanded the most stringent requirements for divorce. Until the Civil War, the state required not only the consent of a court but also a two-thirds majority of both houses of the state legislature to grant a divorce. As though the state’s legislators had nothing better to do!)
Before no-fault, if neither party could show fault on the part of the other but both desired a divorce by mutual consent, they had to create a “legal fiction” to present to the court so their divorce could be approved. “Collusive adultery” was one popular method: the couple would stage an incident in which the wife would walk in on her husband in flagrante delicto with a “mistress” hired for the occasion. Of course, no foul play would actually have occurred — the hired mistress would perhaps be sipping tea in the living room, fully clothed — so the wife, or the wife and husband both, would have to perjure themselves in court. But that did not seem to be a problem at the time.
More commonly, a wife would testify to “cruelty” on the part of her husband. In 1950, cruelty was the basis for 70 percent of divorce cases in San Francisco. Wives were trained to testify on the stand, while sobbing, that their husbands had sworn at them and beat them. California Associate Justice Stanley Mosk referred to the process as a “melancholy charade.”
In Italy, divorce was not available under any circumstances until 1974; the 1961 film Divorce, Italian Style directed by Pietro Germi and starring Marcello Mastroianni plots out one man’s extreme measures to rid himself of an unloved wife. In a nutshell, he hires a local stud to woo and seduce his wife so that he can catch them in the act, kill his wife in a fit of rage, and get off lightly in court because the murder would be seen as an honor killing. Needless to say, the movie is a comedy in the best tradition of Italian film.
What impact has no-fault divorce had on American society? One obvious result has been skyrocketing divorce rates from the 1970s on, up to as high as 50 percent. Whether this in and of itself has been detrimental to society is debatable. Statistics also show significant reductions in female suicide rates (20 percent) and domestic violence against women (33 percent). Statistics were gathered during a time when some states offered no-fault divorce and others still did not, and the significant drops in domestic violence occurred in the no-fault states. Men, perhaps, were encouraged to behave better, knowing that their wives could more easily leave them.
Even though marriage has perhaps become less sacrosanct as an institution, that is perhaps an inevitable byproduct of modern society.
