The Blame Game - The Role of Fault in Divorce Law
Despite what appears to be a
growing prevalence of divorce in our society, there is no question that the
fundamental issues of divorce have been plaguing societies for centuries. At their core are questions of fault. Is one person to blame when a marriage breaks
down? If so, does the law punish the
wrongdoer in a marriage? Should it?
This issue has been brought to the
forefront of legal discussion yet again as a result of New York State, the last
holdout under an old system, reforming their divorce laws. Up until recently, a person who wanted to
divorce a spouse in New York had to prove they had grounds for divorce such as
adultery and one party had be assigned ‘fault' for the marriage breakdown. On August 15, 2010, New York State officially
became the last state in the United States to allow "no fault" divorces,
joining not only the remaining States but also Canadians in this approach.
This change sparked controversy within many religious
communities. Richard E. Barnes,
executive director of the New York State Catholic Conference, said that his
group supported the existing law and commented, "New York State has one of the
lowest divorce rates in the country.
While we see that as a cause for state pride, sadly some may see it as a
problem to be corrected".
The idea of not allowing a party to obtain
a divorce without proof of adultery is a concept that hearkens back to the
Church. In Matthew 19:8-9 Jesus
advised 8..."Moses permitted you to divorce your wives
because your hearts were hard. But it was not this way from the beginning. 9I
tell you that anyone who divorces his wife, except for marital unfaithfulness,
and marries another woman commits adultery." This biblical requirement for divorce has had
ripple effects throughout history and there are many examples of the clash of
Church and State on this very topic. In
fact, the Anglican Church was founded in a large part as King Henry VIII's
reaction to the Catholic Church refusing to grant him a divorce to Catherine of
no exception. If you lived in Canada
before 1968, adultery was the only ground acceptable to get divorced and you
needed to have your marriage dissolved by an Act of Parliament. In 1968, the Divorce Act was signed into
effect, which permitted divorce for specific reasons, including adultery,
imprisonment of your spouse, physical and mental cruelty and separation for at
least 3 years. Finally, in 1986, the Divorce
Act was further amended to permit divorce after separation of one year,
with no requirement to prove "fault" by either spouse. This is the version of the Divorce Act
that is still in force today. In Canada
this means that if parties have been separated for more than a year, the Court,
with a few exceptions, has little time to hear stories about adultery or
misbehaviour. These factors, while
certainly relevant to the parties' personal relationship, are considered mostly
irrelevant to the legal considerations.
that support the former system argue that by allowing a no-fault system we are
making it easier for people to divorce one another and therefore encouraging
society not to take the institution of marriage seriously. Some would also look to uphold the Biblical
standard while others claim that impoverished women will have less leverage in
obtaining fair settlements. A no-fault
divorce system also allows a person to unilaterally divorce an innocent spouse
who does not wish for their marriage to end.
of the no-fault divorce system point to the fact that one must actually prove
adultery or cruelty in Court in order to satisfy the Court that it did in fact
happen. This requires the innocent
spouse to spend considerable money and time leading very nasty evidence before
the Court, sometimes taking a bad situation and making it much worse. Worse yet are the people who are determined
to get a divorce and will manufacture reasons against their spouse in order to
meet certain criteria if necessary. Then
there is the situation of the spouse who wants a divorce but does not have the
financial resources to prove adultery or cruelty in a court of law - for these
people, a simple, no-fault divorce system is the better answer. Proponents will point to the fact that no
fault divorce systems can process files more quickly and less expensively.
York joins the remaining States and Canada in embracing the no fault divorce
system, there will undoubtedly be people who celebrate while others question if
something has been lost. In a system
where nothing is perfect, is instituting no fault divorces a means to shield
individuals from additional pain or a means to shield wrongdoers from ever
answering for their actions?
This article was written by Meghan Maddigan, a lawyer who practices at the
law firm of Kuhn LLP. It is only intended as a guide and
cannot cover every situation. It is important to get legal advice for
specific situations. If you have questions or comments about this case
or other legal matters, please contact us at 604-864-8877.