No-Fault Divorce: A Historical Overview Of The Law Change

The concept of no-fault divorce has its roots in the early modern era, with Prussia's 1757 edict allowing marriages to be dissolved without blaming either party. However, the modern no-fault divorce law was first enacted in Russia in 1917 after the October Revolution, transferring divorce jurisdiction from the church to state courts. In 1969, California became the first US state to permit no-fault divorce, and by the early 1980s, every state except South Dakota and New York had followed suit. New York became the final state to adopt a no-fault divorce law in 2010.

No-fault divorce in California

No-fault divorce is a relatively new legal concept, with California passing the first no-fault divorce law in 1969. This law came into effect in 1970, making California the first U.S. state to permit no-fault divorce.

A no-fault divorce is one where neither party has to prove anything to move forward with the dissolution of their marriage. In a no-fault divorce, the spouse asking for a divorce does not have to prove that the other spouse did something wrong. Instead, the divorce is typically filed on the grounds of "irreconcilable differences", meaning the two spouses cannot get along.

Before no-fault divorce was introduced, ending a marriage was much more difficult and often unsuccessful. Spouses seeking divorce would have to prove fault, such as a fundamental breach of the "marital contract". This could include adultery, abandonment, felony, or other culpable acts. However, it was challenging to obtain hard proof, and the other spouse could often present a more effective case or move jurisdictions to stop the divorce proceedings. This placed women in particular in jeopardy, as they were often financially dependent on their husbands, and the social stigma and difficult process of proving fault acted as deterrents to seeking divorce.

The introduction of no-fault divorce in California was intended to provide a straightforward procedure for ending a marriage. It removes the need for couples who simply cannot get along to create fault-based scenarios or lie under oath in court. No-fault divorce is also considered beneficial as it tends to be less complex from a legal standpoint, avoiding expensive and protracted litigation. Additionally, studies have shown that no-fault divorce correlates with a reduction in female suicides and intimate partner violence.

In California, there is a six-month "waiting period" for a divorce to become final. This means that the earliest a court will grant a final divorce is six months after the spouse is served, although most divorces take much longer than six months to complete.

No-fault divorce in New York

New York was the last state in the US to enact a no-fault divorce law, which came into effect in 2010.

No-fault divorce is the dissolution of a marriage that does not require evidence of wrongdoing by either party. A family court can grant a divorce in response to a petition by either party without requiring proof of a breach of the marital contract.

The History of No-Fault Divorce in New York

New York has a history of being conservative on issues regarding marriage. Until 1966, adultery was the only ground for divorce, and cruelty, a reason widely accepted in most other states, was not recognised.

Before the No-Fault Divorce law was passed in 2010, one spouse had to prove specific reasons for divorce, known as 'grounds'. These included cruel and inhuman treatment, abandonment, adultery, or the confinement of one party in prison for three or more consecutive years.

The Benefits of No-Fault Divorce

The No-Fault Divorce law has made the divorce process faster and less expensive. By eliminating the need to prove a spouse's wrongdoing, New York State has improved the chances of divorcing couples remaining civil to one another, which is particularly beneficial for co-parenting.

The Process of No-Fault Divorce in New York

A no-fault divorce in New York requires one spouse to claim under oath that the relationship between the two parties has broken down irretrievably for at least six months. However, a divorce will not be granted until all issues, including property division, spousal and child support, custody, and visitation, have been resolved or agreed upon by both parties.

No-Fault Divorce vs. Fault-Based Divorce

No-fault divorce has eliminated the lengthy and costly legal proceedings previously required to prove fault. However, it is important to note that no-fault divorce can still be contested, and it is recommended to seek legal advice from a skilled divorce lawyer.

No-fault divorce in other US states

No-fault divorce is a dissolution of marriage that does not require proof of wrongdoing by either party. In other words, the divorcing couple can tell the court that the marriage is over without providing a reason.

In the US, California was the first state to implement no-fault divorce laws in 1969 (or 1970, according to another source). New York was the last state to enact a no-fault divorce law in 2010. As of 2023, all 50 states allow no-fault grounds for divorce. However, only 15 (or 17, according to another source) states are considered "true" no-fault states, where there is no option to cast blame and couples can only file on no-fault grounds. These states include:

• Arizona
• California
• Colorado
• Florida
• Hawaii
• Iowa
• Kentucky
• Michigan
• Minnesota
• Missouri
• Montana
• Nebraska
• Oregon
• Tennessee
• Washington

In the remaining states, a divorce can occur on no-fault grounds, but these states also allow couples to cast blame through traditional fault grounds. Some states also require couples to live apart for a certain length of time before officially filing for divorce. For example, Kentucky requires a two-month separation, while Hawaii requires a minimum of two years.

No-fault divorce in the UK

No-fault divorce came into effect in England and Wales on 6 April 2022, marking the first major reform to divorce law since the 1970s. The new legislation, the Divorce, Dissolution and Separation Act 2020, removes the concept of fault, allowing couples to divorce without needing to prove that one party is at fault.

The Previous System

Before the new legislation, one party was required to place blame on the other for the breakdown of their marriage. The person starting the divorce was called the petitioner, and they had to rely on one of five 'facts' to prove that the marriage had irretrievably broken down. These were:

• Unreasonable behaviour (formerly cruelty)
• Adultery
• Two years' separation with consent
• Five years' separation
• Desertion

The New System

Under the new no-fault divorce system, couples can get divorced solely on the basis that the marriage has broken down, without needing to cite one of the five reasons as outlined above. The person applying for the divorce is now called the applicant, and they can make the application either alone or jointly with their partner.

The new legislation also introduces a minimum timeframe of 20 weeks between the start of proceedings and when individuals can apply for a conditional order of divorce. This 'period of reflection' gives couples time to consider their situation and seek legal advice if necessary.

Benefits of the New System

The no-fault divorce system has several benefits, including:

• It better reflects modern relationships and situations that arise when a relationship breaks down.
• It removes the opportunity to contest the divorce (unless it is on the basis of jurisdiction).
• It removes the element of blame, which may make divorce settlements and discussions about children more amicable.
• It encourages a constructive approach to separation and promotes reconciliation where possible.
• It enables a future-focused approach to managing the effects of relationship breakdown, particularly matters relating to children and finances.

Arguments for and against no-fault divorce

No-fault divorce is the dissolution of a marriage that does not require proof of wrongdoing by either party. While it is now permitted in all US states, this has not always been the case, and there are still differing views on the matter. Here are some of the arguments for and against no-fault divorce:

Arguments for No-Fault Divorce

• No-fault divorce may reduce lengthy and hostile court battles, resulting in lower legal fees and more efficient proceedings.
• It eliminates the need to manufacture or fabricate evidence against a spouse.
• The integrity of the court is maintained, and divorces caused by simple incompatibility may be obtained in an honest and streamlined fashion.
• Parties can avoid airing their dirty laundry in public, and their privacy is respected.
• Less time spent on accusations keeps the parties moving forward and alleviates stress and emotional turmoil.
• It may provide some level of protection for financially disadvantaged spouses.
• Studies have shown that in states that legalised no-fault divorce, there was a decrease in wives' suicide rates and domestic violence.
• No-fault divorce allows couples to focus on agreeing on important arrangements for the future, such as those involving children, finances, and property.

Arguments Against No-Fault Divorce

• Informing a judge of the behaviours, circumstances, and facts that led to the marriage breakdown is an important part of the divorce process for many people, offering a chance for psychological processing and validation.
• No-fault divorce can be initiated unilaterally, and an aggrieved party may fear that the court will not consider their desire to remain married or the facts constituting fault-based grounds.
• It may undermine the institution of marriage by making it easier to exit.
• In some states, custody and financial settlements must be reached before divorce can be obtained, which can slow down the process.
• No-fault divorce makes it very easy for parties to divorce and may encourage divorce instead of couples attempting counselling or giving their marriage another try.
• If one party has committed marital misconduct, this can be taken into account when determining child custody, child support, and property distribution.

Frequently asked questions