Divorce, or dissolution, as it is increasingly becoming known, a legislatively created, judicially administered process that legally terminates a marriage no longer considered viable by one or both of the spouses and that permits both to remarry. Until the divorce reform movement of the 1970s began to have an impact, the legal doctrines governing divorce could be understood only by reviewing the long history of English divorce law, which was dominated by concepts of canon law.
II HISTORY Before 1857 in Britain, freedom to remarry could be obtained only by an act of Parliament following a separation decree given by an ecclesiastical court on the basis of some wrong (such as adultery or abandonment) done by the defendant to the plaintiff. This system, based on the premise that valid marriages may not be dissolved, reflected the Roman Catholic origins of English domestic-relations law.
The early American colonists brought this fault-based system with them to the New World. Because they feared the moral dangers posed by a married yet separated state, they made it possible to obtain an absolute divorce, but only on the traditional English grounds for separation. Basically, however, the conceptual and legal structure of the marriage-dissolution system remained as it had been created and maintained for a divorceless society.
Ecclesiastical courts were abolished in Britain in 1857, and absolute divorce was then instituted. Incorporated into the law of absolute divorce were the fault-based notions that had grown up around separation. These notions continued to affect British and American divorce law and administration for more than a century.
III DIVORCE IN THE U.S. Because of the traditional fault-based view of divorce-that the "innocent and injured" spouse should be able to obtain relief (that is, a divorce) from the spouse who has done some wrong-almost every state divorce law has in the past required the plaintiff to prove one of a number of legislatively recognized grounds. Typical grounds have included adultery (almost universally); desertion; habitual drunkenness; conviction of a felony; impotence (carried over by many state legislatures from annulment law); and, most commonly used by divorcing parties, "cruel and inhuman treatment." Because the state's interest in maintaining stable marriages was assumed, divorce suits could not be treated like other litigation. One spouse, the plaintiff, had to prove grounds even when both spouses wanted the divorce. Thus, divorce trials were filled with charges and countercharges and generally omitted investigation of the actual viability of the marriage.
Moreover, the divorce system required that the plaintiff be without fault; a variety of fault-based defenses were therefore recognized. A plaintiff could be denied a divorce if guilty of (1) condonation-that is, forgiving the defendant of the behavior that provided grounds for divorce; (2) recrimination-plaintiffs who had themselves given grounds for divorce were not entitled to the help of a court (the result of this doctrine was that if both parties wanted a divorce so badly that each provided grounds, neither could terminate the marriage); (3) connivance-if the defendant's misbehavior could in some fashion be laid at the door of the plaintiff, that party was not entitled to a divorce; and (4) collusion-a divorce could not be obtained by a plaintiff who had somehow conspired with the defendant to provide evidence of grounds for divorce.
By the mid-20th century, most state legislatures had recognized one or more no-fault grounds for divorce, usually consisting of a substantial period (from one to five years) during which the spouses had lived "separate and apart"; sometimes insanity or incompatibility were acceptable grounds. Even these few no-fault legislative provisions, however, were interpreted narrowly by the courts; whenever possible, the fault-based notions of traditional doctrine were read into no-fault legislation.
The realities of divorce litigation in the U.S., however, were actually quite different from the legal requirements. Trial judges and lawyers, pressed by a society that in fact wanted free divorce and yet retained publicly the ideal of "until death do us part," for many decades operated a legal system that permitted spouses to terminate their marriages without proving grounds if both parties wanted the divorce. This consensual-perjurious divorce was obtained by having the plaintiff in effect lie about grounds without objection from the defendant. As divorce became less stigmatizing and as serial marriages became more common, the burden on lawyers and judges to maintain a fictional fault-based divorce system became even greater.
The grounds for divorce differed from one state to another; thus, for example, before 1967 the only grounds for divorce in New York State was adultery. Moreover, judicial and public attitudes toward consensual-perjurious divorce varied from state to state. The difficulty of obtaining a divorce in several of the more populous eastern states, such as New York, New Jersey, Massachusetts, and Pennsylvania, eventually led to a substantial amount of "migratory divorce" in so-called divorce havens. For instance, a six-week gambling sojourn in Reno, Nevada, could culminate in a divorce and a return to the state of original domicile.
Before extensive legislative reform, some spouses living in states where divorce was difficult to obtain would travel to jurisdictions outside the continental United States (usually Mexico, Haiti, or the Dominican Republic) for a divorce decree that had none of the constitutional advantages, for purposes of local recognition, of a decree from another state. New York State courts were the only ones to extend formal recognition to Mexican divorce decrees, which were popular because they could be obtained after only one day's residence in that country by either spouse. This formal acceptance by the courts of Mexican divorces was a recognition of both the number of New York marriages dissolved in Mexico and the unlikelihood of a change in the state divorce laws by the legislature.
The system of migratory divorces was considered by many as discriminatory against the poor, who could not afford to take up residence in another state or travel to a foreign country in order to get a divorce.
IV REFORM A divorce reform movement finally took place in the early 1970s in Britain and the United States. The movement was originally initiated by a group, assembled by the archbishop of Canterbury, who proposed a single, no-fault ground that required a judge to grant a divorce if he or she finds that the marriage is "irretrievably broken." This proposal was accepted by a study commission in California and enacted by that state's legislature. Subsequently, the notion of irretrievable breakdown was promulgated in the U.S. by the Uniform Marriage and Divorce Act and appears to be gaining acceptance throughout the nation.
The phrasing of the no-fault principle has produced much controversy. Many critics, pointing out that irretrievable breakdown is a vague concept giving judges substantial discretion, have argued that enactment of this standard will perpetuate sluggish divorce administration by conservative courts, often at the expense of the poor and those spouses whose behavior is not consistent with the values of the judiciary. Others have complained that this standard allows "divorce by consent" and that formal recognition of such easy divorce will eventually undermine the stability of the nuclear family.
More than a decade after reform began, most observers seem satisfied that these potential problems were overestimated. Although the rate of divorce has increased in states that have reformed their laws, there appears to be no basis for believing either that some segments of the population have been treated in a discriminatory manner or that the laws themselves have been responsible for increasing divorce. In the mid-1980s, approximately one in three marriages ended in divorce. A growing number of expert observers conclude that this high divorce rate is due to a number of social changes that are the cause rather than the consequence of divorce-law reform. Among these changes are greater societal acceptance of divorce; greater financial and emotional independence of women; and, paradoxically, a greater belief in the emotional value of marriage, which more readily disposes disappointed spouses to divorce so as to seek a happier subsequent marriage.
In a divorce action, one spouse, usually the wife, may be granted alimony or maintenance payments generally for a limited period of time. The custody of any children may be awarded to either spouse, with equitable regulations made for visiting rights and support of the children. At present, joint-custody arrangements are being worked out more and more frequently by divorcing parents.
V DIVORCE IN OTHER COUNTRIES The status of divorce in other nations varies, often depending on prevailing religious beliefs. Among Roman Catholics throughout the world, the traditional attitude is that a true marriage (one entered into as a religious sacrament) is indissoluble by legal means. Notwithstanding this strict interdiction of divorce, many Roman Catholics procure divorces in the courts. The Roman Catholic church views such divorces as merely a form of legal separation, and remarriage is not permitted. In countries where Protestantism is dominant, the doctrine that marriage is indissoluble has been rejected. Philosophical theories and political theories generally maintain that marriage is preeminently a civil contract and that therefore it is subject to dissolution. Divorce on various grounds is recognized among Buddhists and Muslims as well. In Communist nations, which usually rejected formal religious doctrine, divorce was normally easy to obtain.
Separation, in the law of domestic relations, either a separation agreement, that is, a contract entered into between husband and wife by which they agree to live apart; or a judicial separation, a court decree that separates the parties to the marriage and provides for their living apart. Separation does not dissolve the marriage relationship. A separation agreement contains provisions for the custody and support of minor children, as well as for the division of property between the parties.
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