No-fault divorce is the dissolution of a marriage that does not require a showing of wrongdoing by either party. Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party of the marriage without requiring the petitioner to provide evidence that the defendant has committed a breach of the marital contract.
History In early modern Europe, Prussia took a pioneering role with Frederick the Great's 1757 edict allowing marriages to be dissolved on the ground of serious and continuous hostility between spouses, without pointing to any one guilty party. This early example of no-fault divorce was expanded on and formalized with the 1794 General State Laws for the Prussian States, which allowed childless couples to file for divorce without giving a ground.
The first modern no-fault divorce law was enacted in Russia in December 1917 following the October Revolution of the same year. Regarding marriage as a bourgeois institution, the new government transferred divorce jurisdiction from the Russian Orthodox Church to the state courts, which could grant it on application of either spouse. Alimony guarantees under the new regime were weak until a new family code was passed in 1926.
With a law adopted in 1969, California became the first U.S. state to permit no-fault divorce. California's law was framed on a roughly contemporaneous effort of the non-governmental organization National Conference of Commissioners on Uniform State Laws, which began drafting a model of no-fault divorce statute for states to consider in 1967.A Reminiscence About The Uniform Marriage and Divorce Act-and Some Reflections About Its Critics and Its Policies, Robert J. Levy, 44 BYU L. Rev. 43 (1991)
The Uniform Marriage and Divorce Act (UMDA) is a model law in the United States and has been used since 1970.
Australia established no-fault divorce in 1975, with the only ground for divorce being irretrievable breakdown of marriage, evidenced by a twelve-month separation. Canada effectively permitted no-fault divorce in 1986 by reducing the separation period to one year.
Controversy
Arguments for no-fault divorce Several studies have looked at the effect of no-fault divorce on divorce rates in the United States. The studies typically find an increase in the short-term rate but little long-term causal relationship. The most frequent explanation given is that the older laws were ineffective and not followed anyway, though there are some differing viewpoints. Economists Betsey Stevenson and Justin Wolfers, based on findings in their research, argue that domestic violence and female suicide declines in states that legalize no-fault divorce. Specifically, they report that "states that adopted no-fault divorce experienced a decrease of 8 to 16 percent in wives' suicide rates and a 30 percent decline in domestic violence." They also argue that their research proves that there is no permanent effect of no-fault divorce laws on divorce rates.
Stephanie Coontz, a professor of history at Evergreen State College, stated in 2010 that "in the years since no-fault divorce became well-nigh universal, the national divorce rate has fallen, from about 23 divorces per 1,000 married couples in 1979 to under 17 per 1,000 in 2005." She adds that "once you permit the courts to determine when a person's desire to leave is legitimate, you open the way to arbitrary decisions about what is or should be tolerable in a relationship, made by people who have no stake in the actual lives being lived."
A 2010 New York Times editorial said that New York was "the only state where a court must find fault before granting a divorce unless the spouses have lived apart for a full year under a formal separation agreement — a proven formula for inviting false testimony, endless litigation and generally making divorce far more painful than it needs to be." Later that year, New York became the final state to allow no-fault divorce. Lawyer L. M. Fenton states that "Feminist holdouts against New York's new [no-fault divorce] bill don't understand how family law affects women today", adding: "It also mystifies me that spouses could still, even in 2010, be forced to stay married to someone who refused to let go."
Fault-based grounds usually include mental cruelty, but true mental cruelty has a psychological component that can make it very difficult for the abused spouse to articulate that abuse. More to the point, the abused spouse may be terrified to describe the relationship on paper and testify about it in a court. And of course, a controlling partner will always choose the path of most resistance to whatever it is that the other spouse wants.
The state adopted no-fault divorce later that year.
Upon the introduction of no-fault divorce in England and Wales in 2022, the United Kingdom Government stated that it would allow couples to focus on agreeing important arrangements for the future such as those involving children, finance and property as opposed to proving fault at a time when emotions are already running high.
Arguments against no-fault divorce
The National Organization for Women opposed the introduction of no-fault divorce in New York State because it would allow a party who actually is at fault to obtain a divorce in which "alimony, maintenance [and] property division" would be determined without the judge considering "the facts, behavior and circumstances that led to the break-up of the marriage".
A paper was published in the Harvard Journal of Law and Public Policy, written by Douglas Allen, on the economics of same-sex marriage; its second half discusses the parallels between this change in family law alongside no-fault divorce. The section on the latter development highlights the immediate increase in divorces which contradicted contemporary arguments for no-fault divorce: As an example of this, the paper cites the introduction of no-fault divorce in Canada leading to a six-fold increase in just two years from 1968 to 1970, "after a century of rather stable divorce rates." It also argues that the law increased the rate at which women entered the workforce despite a flatlining in real wages for female workers, increased the number of hours worked in a week, increased the feminization of poverty, and increased the age at which people married.
Laws by country
Australia
Australia adopted no-fault divorce in 1975 with the enactment of the Family Law Act 1975. The only ground for divorce is irretrievable breakdown of marriage, evidenced by a twelve-month separation. However, a residual "fault" element remains in relation to child custody and property settlement issues.
Brazil In Brazil, divorce is considered an immediate and unconditional right ("direito potestativo") and operates under the no-fault model since the approval of Constitutional Amendment No. 66 on July 13, 2010. This amendment eliminated previous requirements, such as prior judicial separation or proof of fault for certain behaviors, radically simplifying the process. Currently, the unilateral will of one spouse, expressed in a legal action or public deed, is sufficient for the judge to decree the divorce, without the need to investigate the reasons or obtain the consent of the other party.
Canada
In Canada before 1968, the only grounds for divorce were adultery or cruelty. However, in 1968, the Divorce Act was amended to permit divorce for other reasons, including physical and mental cruelty and separation for at least three years. The Divorce Act was amended in 1986 to reduce the separation period to one year, with no requirement to prove "fault" by either spouse. The fault grounds for divorce are also available.
China
China has nominally allowed no-fault divorce since the adoption of the New Marriage Law in 1950. No-fault divorce has become much more common since the 1980s. The current marriage law provides that divorce shall always be granted if sought by both husband and wife. Divorce is also granted if one party can present evidence of incompatibility, such as separation for at least two years.
Divorce may be granted either by court or by a marriage registration office. The latter can only do so when both parties have reached an agreement on child custody and property settlement.
Germany Until 1976, divorce was only possible if one spouse had acted wrongly – a rule referred to as the Schuldprinzip ("principle of guilt"). In 1976, the law was changed to make no-fault divorces the standard. The law says that "A marriage may be dissolved by divorce if it has broken down. The marriage has broken down if the conjugal community of the spouses no longer exists and it cannot be expected that the spouses restore it." Couples are required to remain married for one year ("Trennungsjahr") even if both parties desire the divorce.
Some provisions of the old, fault-based system remain. In particular, the separation period required before a formal divorce can be shortened if "the continuation of the marriage would be an unreasonable hardship for the petitioner for reasons that lie in the person of the other spouse". While formally no fault is required, in practice this rule is usually applied if the spouse acts irresponsibly, for example if they are violent or threaten their partner.
Malta A law permitting no-fault divorce went into effect in October 2011, following a national referendum on the subject. This was the first Maltese law permitting any kind of divorce.
Mexico In Mexico City, this type of divorce is legally known as "divorcio incausado o sin expresión de causa" and colloquially as "divorcio exprés". The law was passed in 2008 and was held constitutional by the Supreme Court, which in 2015 determined that any state law requiring the case for a divorce to be proven was unconstitutional.
Russia No-fault divorce was introduced by the Bolsheviks following the Russian Revolution of 1917. Before the Revolution, religious institutions tended to define family life. It was the ecclesiastical law of the Russian Orthodox Church that controlled the family, marriage, and divorce. For example, the official registration of birth, death, marriage, and divorce was the responsibility of the parish church. Under these non-secular laws, divorce was highly restricted (but always somewhat available, since the Russian Orthodox Church allows divorce for adultery, desertion, and physical cruelty).
The 1918 Decree on Divorce eliminated the religious marriage and the underlying ecclesiastical law, replacing them with civil marriage sanctioned by the state. Divorce was obtained by filing a mutual consent document with the Russian Registry Office, or by the unilateral request of one party to the court. The divorce law under the Bolsheviks did not penalize the husband with alimony, child support, or debtor's prison for non-payment, as every individual was to be provided for by the state anyway. The two partners were entirely free of legal obligations to each other after divorce. The concept of child support, however, was introduced to the family law of Russia in the 1990s after the fall of the Soviet Union.
Spain
In Spain, this type of divorce is legally known as divorcio incausado or divorcio unilateral and colloquially as divorcio exprés. No-fault divorce was introduced in Spain in 2005 as part of the reform of Spain's divorce law of 1981.
Sweden Swedish divorce law does not include a requirement to show fault. The couple can file for divorce together or one party can file alone. If one party does not wish to get divorced or if they have children under 16 living at home, there is a required contemplation period of 6 to 12 months. During this period, they stay married and the request must be confirmed for the divorce to be finalized.
United Kingdom