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 by its legal doctrine and jurisprudence as an immediate and unconditional right (
direito potestativo) and operates under the "no-fault divorce" 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, guilt-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 guilt is required on the part of the spouse, in practice this rule is usually applied if the spouse acts irresponsibly, for example if they are violent or threaten their partner.
Malta A Maltese 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 for the first time in Mexico City in 2008 and held constitutional by the Supreme Court, which in 2015 established that any state law requiring to prove the case for a divorce was unconstitutional.
Russia No-fault divorce was introduced by the
Bolsheviks following the
Russian Revolution of 1917.
United Kingdom The fault-based system as used in England and Wales prior to 2022 had been reported in the media as unnecessarily provocative, in that couples had to appropriate blame for the marriage breakdown. The family justice system followed the Children Act 1989 Part 1 Section 1, which states "the child's welfare shall be the court's paramount consideration" when a court determines any question with respect to the upbringing of a child. Following years of campaigning by the legal community, parliament passed the
Divorce, Dissolution and Separation Act 2020, which came into force on 6 April 2022,
United States Today, every state plus the
District of Columbia permits no-fault divorce, though requirements for obtaining a no-fault divorce vary.
California was the first U.S. state to enact a no-fault divorce law. Its law was signed by Governor
Ronald Reagan, a divorced and remarried former movie actor, and came into effect in 1970.
New York was the last state to enact a no-fault divorce law; that law was passed in 2010. Before no-fault divorce was available, spouses seeking divorce would often allege false grounds for divorce. Removing the incentive to perjure was one motivation for the no-fault movement. In the states of
Wisconsin,
Oregon,
Washington,
Nevada,
Nebraska,
Montana,
Missouri,
Minnesota,
Michigan,
Kentucky,
Kansas,
Illinois,
Iowa,
Indiana,
Hawaii,
Florida,
Colorado and
California, a person seeking a divorce is not permitted to allege a fault-based ground (e.g. adultery, abandonment or cruelty).
Requirements before the enactment of no-fault divorce Prior to the advent of no-fault divorce, a divorce was processed through the
adversarial system as a civil action, meaning that a divorce could be obtained only through a showing of fault of
one—and
only one—of the parties in a marriage. This required that one spouse plead that the other had committed adultery, abandonment, felony, or other similarly culpable acts. However, the other spouse could plead a variety of defenses, like
recrimination (essentially an accusation of "so did you"). A judge could find that the respondent had not committed the alleged act or the judge could accept the defense of recrimination and find
both spouses at fault for the dysfunctional nature of their marriage. Either of these two findings was sufficient to defeat an action for divorce, which meant that the parties remained married. In some states, requirements were even more stringent. For instance, under its original (1819) constitution,
Alabama required not only the consent of a
court of chancery for a divorce (and only "in cases provided for by law"), but equally that of two-thirds of both houses of the state legislature. The required vote in this case was even stricter than that required to overturn the governor's veto in Alabama, which required only a simple majority of both houses of the General Assembly. This requirement was dropped in 1861, when the state adopted a new constitution at the outset of the
American Civil War.
Bypassing the showing-of-fault requirements for divorce These requirements could be problematic if both spouses were at fault or if neither spouse had committed a legally culpable act but both spouses desired a divorce by mutual consent. Lawyers began to advise their clients on how to manufacture "
legal fictions" to bypass the statutory requirements, with the result that by the 1920s, the actual operation of the legal system was "completely at odds with statute and case law". One method popular in New York was referred to as "collusive adultery", in which the husband would check into a hotel with a "mistress" obtained for the occasion. A photographer, also obtained for the occasion, would suddenly appear out of nowhere to take snapshots of the husband and his "mistress"
in flagrante delicto. An even simpler practice for people living in states where divorce was difficult to obtain was to go "
forum shopping." This meant one of the parties would move to another state where divorce laws were less restrictive, stay there long enough to become a resident, then file for divorce there. Nevada was extremely popular for this purpose as starting in the 1930s its residency requirement was only six weeks. During this period the city of
Reno openly advertised itself as the "divorce capital of the world" and gained a national reputation as a
divorce mill. For some couples, if there really was no problem in settling the issues of their marriage, a weekend trip to Mexico was also an option. Or in some cases, a party deciding they wanted to marry someone else could combine a filing for divorce and a new marriage in one trip to Mexico. As no-fault became near-universal, the need to use Nevada or Mexico to evade restrictive divorce laws became less and less necessary.
Advocates for eliminating the showing-of-fault requirements Many American lawyers and judges objected to the legal fictions used to satisfy the requirements for divorce, which were effectively rendering oaths meaningless and threatening to wreck the integrity of the American justice system by making perjury into a commonplace occurrence. American judges were deeply troubled by the "
cognitive dissonance between the court's duty to uphold the formal law and its intention nevertheless to accede to the demands of the consumers of justice". As early as the 1930s, a treatise on American family law complained: In divorce litigation it is well known that the parties often seek to evade the statutory limitations and thus there is great danger of perjury, collusion, and fraud. In many cases no defense is interposed, and often when the case is contested the contest is not waged with vigor or good faith. Thus, advocates for no-fault divorce argued that the law should be changed to provide a straightforward procedure for ending a marriage, rather than forcing a couple who simply couldn't get along to choose between living together in "marital hell" or lying under oath in open court. The most prominent advocate of this position was feminist law professor
Herma Hill Kay (who later became dean of
UC Berkeley School of Law). At its convention in 1947, the National Association of Women Lawyers (NAWL) voted to draft and promote a bill that would embody the ideal of no-fault divorce and describes its efforts to promote the passage of no-fault divorce laws as "the greatest project NAWL has ever undertaken."
California's Family Law Act of 1969 California adopted no-fault divorce with the
Family Law Act of 1969, which became effective January 1, 1970. The Act abolished California's action for divorce and replaced it with a proceeding for dissolution of marriage on the grounds of irreconcilable differences. The grounds of irreconcilable differences are accepted as true, and can be based on the assertions of
one of the parties to the marriage.
Uniform Marriage and Divorce Act At about the same time that California adopted no-fault divorce, the
National Conference of Commissioners of Uniform State Laws (NCCUSL) appointed a committee to draft a uniform marriage and divorce law for consideration by state legislatures, and the
American Bar Association's Family Law Section was asked to appoint a committee to work with the committee from the NCCUSL. The initial draft of the Uniform Marriage and Divorce Law written by the NCCUSL committee would direct judges to grant the petitioner's request to end the marriage if the judge found that the marriage was "irretrievably broken", a term which this draft did not define. Copies of the recommendation to disapprove the NCCUSL's amended draft were provided to the National Conference of Commissioners of Uniform State Laws (NCCUSL), Young Lawyers Section and the National Association of Women Lawyers (NAWL). and by late 1983, every state but
South Dakota and
New York had adopted some form of no-fault divorce (although some forms were not as easy to obtain as that in California). South Dakota adopted no-fault divorce in 1985. Until August 2010, New York still lacked a unilateral no-fault divorce statute; under
New York divorce law, only if
both parties executed and acknowledged a
separation agreement and lived separately for one year could a judge convert it into a divorce. New York governor
David Paterson signed a no-fault divorce bill on August 15, 2010. , no-fault divorce is allowed in all fifty states and the District of Columbia.
Conservative opposition in the 2020s In the 2020s, conservative activists, including
Steven Crowder,
Matt Walsh,
Michael Knowles, as well as commentator
Tim Pool, and some state Republican parties have advocated for the abolition or restriction of no-fault divorce. Similarly, conservative politicians like JD Vance, Mike Johnson, and Ben Carson also support significantly limiting no-fault divorce. On January 18, 2024, Senator Dusty Deevers introduced Oklahoma SB 1958, a bill aimed at modifying the grounds for divorce in the state. This bill proposes to include considerations of fault in divorce proceedings, marking a significant shift from the current no-fault divorce framework in Oklahoma. ==See also==