Divorce Evolution

People think California invented “no-fault” divorce. Not true. The concept of divorce without the element of blame was a subject of discussion in legal and mental health circles throughout the United States in the early 1960’s. The National Conference of Commissioners on Uniform State Laws, source of over 140 uniform state laws in 1967 began to draft a model of a no-fault divorce statute for states to consider.

The first no-fault law in a modern state was established in Russia in 1917. That was an anti-church part of the revolution. (There was no alimony then –the state took care of you, and besides, everyone was equal.) Historically, marriage and divorce were ecclesiastical matters in all countries, and ecclesiastical rules transmuted into civil rules. To get a divorce under church law, you had to prove you were unpardonably sinned against.

“No-fault” divorce came to us from The Governor’s Commission on the Family established on May 11, 1966. Governor Edmund G. Brown asked the commission for a “concerted assault on the high incidence of divorce in our society and its often tragic consequences,” and said, “The time has come to acknowledge that our present social and legal procedures for dealing with divorce are no longer adequate.”

With fault, if I could prove my spouse committed what was recognized as a “matrimonial offense,” such as adultery, extreme cruelty–mental or physical, desertion, neglect, habitual intemperance or conviction of a felony, as set forth in California’s basic divorce law of 1872, I got more property and more support, and no question about the children.

Eventually, the result was that many people who wanted to end a marriage fabricated spousal wrongdoing, usually collusively with each other as to what the offense was. In 1966, 95% of the 99,762 complaints filed for divorce or separate maintenance were on the grounds of “extreme cruelty.” And in 61,957 of these, a judgment was granted without contest. The other 37,805 apparently went through the full litigation process.

This procedure was described by Supreme Court of California Associate Justice Stanley Mosk: “Every day, in every superior court in the state, the same melancholy charade was played: the ‘innocent’ spouse, generally the wife, would take the stand and, to the accompanying cacophony of sobbing and nose-blowing, testify under the deft guidance of an attorney to the spousal conduct that she deemed ‘cruel.’ The usual hearing was concluded in 10 minutes. ”


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