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 Aragon. 
Canada is 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. 
Those 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. 
Proponents 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.
As New 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.