Religion & Law
This website is a compilation of thoughtful insight on Religious Law vs Civil Law - subject Marriage Dissolution. This website is not meant to give legal advice but instead to stimulate insightful thought.
Grounds, Consequences, Reform Movement, Domestic Violence
Historically, divorce, like marriage, was primarily a matter of ecclesiastical regulation. And during most of Christian-European history, the Church did not generally permit divorce. Marriage was terminable by annulment, on rather narrow grounds; otherwise, most persons who were unhappily yoked only could obtain what today would be called a formal separation (divoce a mensa et thoro). Divorce came to Christian Europe with the Protestant Reformation. England was slower than some continental countries to embrace the Reformation, and was likewise slower to permit divorce.
Ecclesiastical (canon) law remained in place until Henry VIII's famous break with the Catholic church in 1529 over its refusal to grant him a divorce. Yet even after England separated from the Catholic Church, divorce remained very rare. "For instance, between 1670 and 1857, only 375 divorces were granted in England. Obtaining a divorce before 1857 required an act of the English Parliament. Most of the divorces were granted for 'great families' and 'special cases.'"
Divorce -- Fault Grounds in 3 Contemporary Family Law (1988).
In more than 20 states divorce is available on grounds of
separation for a specified period. The length of time required varies
from six months to three years. Usually a judicial decree of separation
is required. Generally sporadic sex or dating after separation does not
defend a claim for divorce on the ground of separation; but resuming husband-wife
Nearly as many jurisdictions allow divorce on grounds of
mental illness or insanity. Usually special procedures must be followed
in divorce proceedings alleging this ground. Generally permanent incompetence
is necessary, a guardian ad litem must be appointed, and the court takes
care to see that the estate and interests of the incompetent spouse are
Half of the states allow for divorce on the grounds of in
human treatment or cruelty. Traditionally "cruelty" was strictly
construed to authorize divorce only for objectively severe mistreatment
(originally only physical cruelty), and many cases still distinguish "cruelty"
from mere "indignities." But generally cruelty is established
if the complainant convinces the court that the defendants conduct has
made marriage objectively intolerable for him or her. "Mental cruelty"
was adopted expressly by legislation in some states, and by judicial interpretation
in others. Over the years, courts became lenient about what constituted
sufficient "mental cruelty" to justify a divorce, and in practical
effect, "cruelty" became the first "de facto" no-fault
divorce grounds in some courts because any subjective designation of cruelty
Nearly half of the states allow divorce for habitual intoxication
or addiction to drugs. Usually, however, a time period (to allow rehabilitation)
is required for divorce on this ground. The nature of the problem had
to be severe, as indicated by the modifier "habitual" used in
Conviction of a felony or crime involving moral turpitude
is a ground for divorce in about 16 jurisdictions. In another 12 states
imprisonment is a ground for divorce.
There are, of course, many other grounds for divorce specified
in the divorce statutes the 51 American jurisdictions. In total, there
are 32 different grounds for divorce specified in these statutes. In some
states particular defects which otherwise might render the marriage invalid
are specifically listed as grounds for divorce, giving the offended party
the option of suing for annulment or divorce.
Even the old "fault" divorce statutes provided
for some no-fault divorces. For example, insanity was one of the traditional
grounds for divorce. Most jurisdictions allowed divorce on grounds of
insanity of the defendant spouse, even though this was technically not
a "fault" ground for divorce, but a no-fault ground (i.e., the
defendant did not choose to become insane, but the condition of insanity
was deemed to render the marriage intolerable enough to justify divorce
and allow the sane spouse to marry another). Likewise, many jurisdictions
permitted divorce when the parties had lived separate and apart from each
other for a period of time (usually under a decree of separation). Unless
the separation decree could only be obtained for reason of fault, this
would constitute another "no fault" ground for divorce under
traditional fault divorce schemes.
Because the substantive grounds for divorce were specific and substantial, a number of specialized substantive defenses developed as well. These defenses were the source of much consternation and some of the criticism of traditional divorce. As traditional grounds for divorce still survive in many states, many of the traditional defenses also survive. For instance, the traditional defense of collusion is still specifically authorized by statute in 10 states, but statutorily abolished in 4 others. Collusion was a defense based on fraud in creating or establishing a ground for divorce and was aimed at preventing agreements by spouses to circumvent strict divorce laws by fabricating the grounds for divorce. The traditional defense of recrimination is listed as a defense in statutes in 4 states, but rejected by statute in 12 others.
Recrimination was essentially the unclean hands defense. The recrimination defense alleged that the plaintiff was guilty of equally serious grounds for divorce and thus, as a matter of equity, was not entitled to the relief sought. Provocation was a related defense. Provocation was based on the notion of retaliation--that the defendant's marital misconduct was provoked by the plaintiff's misconduct.
In 5 states condonation is still statutorily mentioned as a valid defense (and forgiveness is mentioned in another), while 8 other states specifically abolish condonation as a defense. Condonation was a defense based on forgiveness of the marital offense. Many cases held that sexual intercourse by the offended party with the offending party after the offense and with knowledge of it constituted condonation and prohibited the use of the marital offense as a ground for subsequent divorce. Connivance is specifically mentioned as a valid defense in 4 states by statute, and repudiated in 3 others.
Connivance was a defense based on the participation of the
spouse seeking in divorce and developing grounds for divorce by actually
and intentionally creating an opportunity for divorce (e.g., "smoothing
the path to the adulterous bed"). Insanity is specified as a statutory
defense in 1 state, and rejected in 2 others. Delay or inappropriate lapse
of time between the marital offense and bringing the action for divorce
is specified as a defense in 5 jurisdictions by statute, and abolished
in 2 others. Insanity has been traditionally a defense to fault divorce
(except to divorce for reason of insanity). In 1986 the Tennessee Supreme
Court ruled that when insanity is raised as a defense to divorce on the
ground of cruelty, the defendant bears the burden of showing that at the
time of the cruel behavior she or he lacked sufficient capacity to appreciate
the wrongfulness of the cruelty action and to control his or her own actions.
This is essentially the insanity standard required in criminal cases.
Simpson v. Simpson, ___ S.W.2d ___ (Tenn. 1986). Of course, he trend of
legislation, especially since enactment of "no-fault" divorce
has been to restrict or abolish the traditional divorce defenses.
In 1966, the Governor of California appointed a Governor's Commission on the Family to study the problem and recommend a solution. Some members of the Commission, including Professor Herma Hill Kay of Boalt Hall Law School at the University of California at Berkeley, strongly favored the adoption of no-fault divorce grounds.
In December 1966, the Commission submitted its final report
recommending the elimination of all fault-grounds for divorce, as well
as the adoption of an extensive family court system. Although a bill implementing
the recommendations of the Commission was introduced the following year,
it lay quietly in the legislature until 1969, when, revised to eliminate
the creation of the controversial family court system, it passed with
surprisingly little public opposition.
1966 was a watershed year for no-fault divorce reform. While the California Governor's Commission was meeting in 1966 and preparing its report endorsing no-fault divorce grounds, it received a significant boost from the publication of the widely-heralded report of a group of distinguished individuals appointed by the Archbishop of Canterbury to make recommendations regarding reform of the fault-grounds for divorce in England. Their 1966 report, entitled Putting Asunder: A Divorce Law for Contemporary Society, acknowledged the shortcomings of the existing fault-based divorce system and suggested that divorce morally could be granted when there was such a complete "failure in the marital relationship" that the substance of the relationship had come "unmistakably and irreversibly to an end." However, the Archbishop's group also recommended that a thorough judicial "inquest" be conducted by the courts before granting divorce upon such grounds and rejected the concept of unilateral divorce (or even a right to divorce upon mutual consent).
The report of the Archbishop's group was referred to the
English Law Commission, which issued another report endorsing the marital
breakdown principle and recommending that English divorce law be reformed
to permit divorce with "the maximum of fairness, and the minimum
of bitterness, distress, and humiliation" when it was determined
that a marriage was irretrievably broken. Three years later, the British
Parliament passed the Divorce Reform Act, 1969, which provided that divorce
could be granted upon one ground only, "irretrievable breakdown."
The Act further provided that irretrievable breakdown had to be shown
by proof of traditional marital fault, living separate and apart for five
years, or living separate and apart with mutual consent for two years.
These developments in England did much to legitimize divorce reform in
the United States, and while California's no-fault divorce law constituted
a much more radical departure from the traditional divorce methods than
the English law, the divorce reform movement in England undeniably helped
clear the path for California's divorce reform.
The California divorce reform also benefited from the reform
of New York's divorce laws in 1966 and 1968. Before 1966, New York had
not significantly reformed its substantive divorce law since it had been
drafted by Alexander Hamilton in 1787. Divorce was permitted only upon
proof of adultery. In 1965, the state legislature conducted public hearings
at which strong support was provided for reforming New York divorce law.
After "considerable maneuvering" to defuse any significant opposition,
a divorce reform bill was passed in 1966 that added other "fault"
grounds for divorce, including cruel and inhuman treatment that threatened
the physical or mental well-being of the plaintiff and abandonment for
two or more years. The divorce reform law also permitted divorce upon
living apart for two years pursuant to a decree of separation or written
For various reasons, the American Bar Association
initially declined to endorse the proposed UMDA. Extensive negotiations
between the NCCUSL and the ABA followed, and in 1973, the NCCUSL adopted
relatively minor revisions to the UMDA. The following year, the ABA approved
the revised UMDA.
Altogether, these developments ignited a movement to reform divorce laws that quickly spread throughout the United States. After California adopted its no-fault divorce law in 1969, "no-fault divorce spread like a prairie fire." Between 1971 and 1977, eight states adopted the UMDA at least in part and more than three times that number of states adopted some other form of no-fault divorce. By 1989, forty-nine states and the District of Columbia had explicitly adopted some "modern no-fault" ground for divorce.
In thirty states, the legislatures have added at least one
modern no-fault ground for divorce as an alternative to fault-grounds
for divorce. Nineteen of these states simply have added marital breakdown,
incompatibility, or irreconcilable differences to the traditional grounds
for divorce. One state added both a modern breakdown provision and a modern
"short separation" provision as alternatives to the traditional
fault grounds for divorce. Three others have added a combined requirement
of both irretrievable breakdown and a short separation to the traditional
grounds for divorce. The remaining seven of these thirty states have added
living separate and apart for a short period of time as the sole no-fault
ground for divorce to the list of traditional grounds for divorce.
In total, forty-one states have adopted modern no-fault
language (breakdown, incompatibility or irreconcilable differences) as
the exclusive or an alternative ground for divorce (including seven states
that have adopted both modern no-fault terms and short separation periods),
and eight other states and the District of Columbia have adopted a short
separation period as their modern no-fault ground for divorce. Only one
state, Arkansas, does not have a modern no-fault divorce provision of
First, no-fault divorce grounds were deemed desirable to
reduce the hostility and distress of persons involved in divorce. Requiring
proof of marital fault in all cases, subject to harsh and antiquated defenses
(e.g., recrimination, condonation, collusion, connivance) which historically
could preclude divorce even if fault were proven, was widely criticized
for breeding costly, bitter, counterproductive litigation that impeded
reconciliation. The adversary system and fault-laying substantive grounds
proved unworkable. As two advocates of no-fault divorce wrote:
Perhaps the most damaging result of a "fault"-based
divorce procedure is that it exacerbates the aggressive forces that may
be already undermining the family. It dissipates family emotional and
financial resources at a time when they are most needed. The hatred, bitterness,
and resentment fed by a drawn- out divorce are likely to destroy the possibility
of reconciliation and distort the negotiations and proceedings designed
to resolve the very difficult and emotionally-freighted issues of finance
and child custody.
The fourth argument asserted that basic notions of marriage
and divorce had changed and that no-fault divorce more accurately reflected
modern conceptions of terminating marital relations than did the prior
laws. The notions that marital breakdown was the "fault" of
one spouse entirely and that divorce was both a remedy awarded to the
innocent spouse and a judgment imposed against the faulty spouse were
widely rejected. *** Thus, by 1960, it was widely believed "that
the fault grounds for divorce were usually symptoms rather than causes
of the difficulties in marriages" and that the fault-based divorce
system was "obsolete and mischievous."
New: Because in most states, there is no meaningful substantive
defense to a no-fault divorce claim, procedural defenses have replaced
the traditional substantive defenses to modern no-fault divorce. The most
common appears to be lack of jurisdiction -- either because one or both
of the parties is beyond the territorial jurisdiction (and the absence
of one of the parties is not necessarily a jurisdictional defect), or
because some factor in the description of the subject matter jurisdiction
of the state court is missing. Time-of-residency requirements are the
most common of these defenses.
RSA 458:7-a (Supp.1973) is the product of a national discussion regarding the proper grounds for divorce. It follows in important respects the California Family Law Act of 1969. That statute, and others following it, have been criticized for vagueness, but have been held to be sufficiently definite to afford due process of law. Ryan v. Ryan, 277 So.2d 266 (Fla.1973); In re Marriage of Walton, 28 Cal.App.3d 108, 104 Cal.Rptr. 472 (1972). A consensus has emerged that a period of separation due to marital difficulties is strong evidence of the irremediable breakdown of a marriage. Cf. RSA 458:7 VI through XIII. These developments can be traced in the following commentaries: Bodenheimer, Reflections on the Future of Grounds for Divorce, 8 J.Fam.L. 179, 198-207 (1968); Foster and Freed, Divorce Reform: Brakes on Breakdown?, 13 J.Fam.L. 443, 448-453 (1973); Zuckman, The ABA Family Law Section v. The NCCUSL: Alienation, Separation and Forced Reconciliation over the Uniform Marriage and Divorce Act, 24 Cath.U.L.Rev. 61 (1974); and Annot., 55 A.L.R.3d 581 (1974). When asked to interpret a statute similar to RSA 458:7-a, the Florida Court of Appeal stated: 'The Legislature has not seen fit to promulgate guidelines as to what constitutes an 'irretrievably broken' marriage. It is suggested that this lack of definitive direction was deliberate and is desirable in an area as volatile as a proceeding for termination of the marital status. Consideration should be given to each case individually and predetermined policy should not be circumscribed by the appellate courts of this State. 'Thus, we are hesitant to set forth specific circumstances which trial courts could utilize as permissible indices of an irretrievable breakdown of the marital status. Were we to attempt to do so, we feel that the basic purpose of the new dissolution of marriage law would be frustrated. Such proceedings would either again become primarily adversary in nature or persons would again fit themselves into tailor-made categories or circumstances to fit judicially defined breakdown situations. It is our opinion that these two problems are the very ones which the Legislature intended to eliminate.' Riley v. Riley, 271 So.2d 181, 183 (Fla.App.1972).
Knowledge of the sources of marital discord is helpful in
determining whether a breakdown is irremediable or whether there is a
reasonable possibility of reconciliation. Yet the statutory test is the
existing state of the marriage. The statute authorizes the trial court
to receive evidence of specific acts of misconduct where it is determined
by the court to be necessary to establish the existence of irreconcilable
differences. This authority is an exception to the general rule of the
statute excluding such evidence, and the intent of the statute to minimize
the acrimony attending divorce proceedings.
The question whether a breakdown of a marriage is irremediable
is a question to be determined by the trial court. Woodruff v. Woodruff,
114 N.H. 365, 367, 320 A.2d 661, 663 (1974). RSA 458:7-a contemplates
the introduction of factual testimony sufficient to permit a finding of
irreconcilable differences which have caused the irremediable breakdown
of the marriage. Rodrique v. Rodrique, 113 N.H. 49, 52, 300 A.2d 312,
314 (1973). Nevertheless there are limits to the inquiry. 'In the first
place, there is the natural tendency to withhold information of a personal
nature from anyone but a trusted and discreet adviser; secondly, any probing
into personal matters against the wishes of the party examined would be
objectionable . . .; and thirdly, the parties have come to court for a
purpose. Their answers, which may be perfectly honest ones, will inevitably
be slanted in the direction of their ultimate goal, which is divorce.'
Bodenheimer, supra at 200 (1968). Within these limits the trial court
must be adequately informed before acting in matters of such importance.
But the statute does not contemplate a complete biopsy of the marriage
relationship from the beginning to the end in every case. This is a difficult
task, but judges face similar problems in other cases. See Ballou v. Ballou,
95 N.H. 105, 58 A.2d 311 (1948).
The separation of the parties for two and one-half years
and the plaintiff's persistence in seeking a divorce during that period
is evidence from which the trial court could find that this marriage has
irremediably broken down.
Where a form of conduct referred to in a statute designates
the persons and things to which it refers, "there is an inference
that all omissions should be understood as exclusions." Sands, Sutherland
Statutory Construction, § 47.23, at 194 (Singer 4th ed.1984). Because
subsection (h) does not set forth a specific fault of the defendant, in
contrast to these other subsections, we can infer that subsection (h),
unlike the other provisions, is intended to be a no-fault provision. Therefore,
we conclude that no fault need be proven or inferred from the operation
of subsection (h).
The trial court here found that irreconcilable differences
existed between the parties, but went on to state:
We find that the court, despite the no-fault language of
subsection (h), found that appellant was at fault and, therefore, refused
to grant him a decree of divorce. This is improper, given the no-fault
language of the statute. We conclude that both parties are entitled to
a decree of divorce.
*** the authors of a comprehensive evaluation of Nebraska's no-fault law reported that approximately two-thirds of the responding state court judges reported that there was less animosity under the no-fault divorce law. But the authors of the Nebraska study further noted that there was a higher percentage of contested cases since the adoption of a no-fault divorce ground in Nebraska and suggested that "since fighting over who caused the breakup is futile, 'those who want a fight, now use collateral issues as the battle ground.' Fights over custody and support are more prevalent and are often just as acrimonious and humiliating as those over grounds, if not more so."
*** Thus, it is fair to assume that no-fault divorce laws
have reduced the total amount of perjury in divorce proceedings.
*** There is no more judicial scrutiny of no-fault grounds
than there was of the fault grounds. It appears that one legal fiction
(judicial scrutiny of no-fault grounds) has been substituted for another
(judicial scrutiny of fault grounds).
Moreover, there are indications that no-fault grounds for
divorce have only caused the lying to shift (as did the hostility) from
the part of the proceeding dealing with the grounds for divorce to the
collateral aspects, especially child custody and visitation disputes.
For instance, the practice of one parent falsely accusing the other parent
of child abuse, especially child sexual abuse, appears to have increased
since the adoption of no-fault divorce grounds. Getting "control"
or asserting "power" in custody matters has assumed even greater
emotional significance since the elimination of marital fault has deprived
spouses of the opportunity for official vindication of their comparative
rectitude. Because the abandonment of maternal-preference rules and the
adoption of "joint custody" have increased the legal risk that
comparatively faultless mothers may lose a greater share of the post-divorce
parental control of their children, the incentive to irresponsibly accuse
the other parent of serious parental dereliction (in lieu of marital dereliction)
An even greater change wrought by the adoption of no-fault
is the legalization of unilateral no-fault divorce on demand. Under the
former law, parties could obtain a divorce without judicial scrutiny of
the question of marital misconduct only if both parties mutually agreed
to it. Now the vast majority of states have adopted no-fault divorce laws
that make it possible for one party unilaterally to obtain a no-fault
divorce, despite the dissatisfaction and objections of the other spouse.
Thus, it appears that the no-fault divorce reformers overshot their mark if they really intended to close the gap between law-as-written and law-as- applied.
Privacy is another powerful component in the modern concepts of marriage and divorce. Ironically, the adoption of no-fault grounds has led to more, not less, public intrusion into individual and family privacy in regard to divorce.
It appears that since the adoption of no-fault divorce grounds
there is not only more litigation regarding collateral matters (such as
custody and finances) at the time of divorce, but it seems that there
also is significantly more follow-up litigation. More often, and for longer
periods of time, divorced parties are returning to court demanding further
judicial scrutiny of the vestiges of a previously-terminated marriage.
As a result, not once but many times parties must open their private lives
to the scrutiny of public (judicial) officials in formal court proceedings.
Modern no-fault divorce laws embody a more atomistic notion
of privacy than mainstream advocates of no-fault divorce asserted twenty
In addition to failing to achieve the four major objectives of no-fault divorce reform, there have been some severe unintended consequences associated with the shift to unilater no-fault divorce.
First, there is some evidence that custodial mothers and
their children have suffered more following no-fault divorce than similar
mothers and children did before the adoption of no-fault divorce grounds.
Second, no-fault divorce appears to have contributed to a dramatic increase
in the rate of divorce in the United States.
Fathers felt a lack of identity, rootlessness, and complained
of a lack of structure in their lives . . . Divorced women complained
of feeling unattractive, helpless, and of having lost their identity as
The rate of admission to mental institutions for inpatient
treatment has been shown to be from seven to twenty-two times higher for
divorced and separated men than for married men, and from three to eight
times higher for divorced or separated women than married women. Likewise,
the rates of admission for outpatient mental health treatment are significantly
higher for divorced and separated persons than for married persons.
The relationship between stress and physical health has long been known. There is growing evidence that the trauma and anxiety of divorce and separation are among the most stressful and difficult-to-cope-with human experiences. A seminal study, published in 1968, reported that of all major life events, divorce and separation were decisively ranked among the most stressful and difficult to cope with (rating 73 and 65, respectively, on a 100-point scale), consistently surpassing in intensity and difficulty almost all other life crises including such major catastrophes as going to jail (rated 63), losing a job (rated 47), personal injury or illness (rated 51), and mortgage foreclosure (rated 30). In fact, only the death of a spouse (rated 100) was found to be more stressful. . . .
Although a higher percentage of married than unmarried persons
have hospital insurance, "the typical single, widowed, or divorced
individual remains far longer in the hospital for the identical medical
problems than do married people. . . . The overall death rate for white
persons and the death rate for coronary heart diseases for all persons
are significantly higher for divorced individuals than single, widowed,
or married persons. The divorced and separated also have a higher incidence
of high blood pressure, alcoholism, automobile accidents, and suicide
than married persons. One study concluded that it usually takes from two
to four years for divorced persons to recover from the emotional distress
Dr. Weitzman has acknowledged the calculation error (it was due in part to computer program problems). Lenore J. Weitzman, The Economic Consequences of Divorce are Still Unequal: Comment on Peterson in 61 Amer. Sociolog. Rev. 537, 538 (1996). A more recent study found that single women in America experienced a 12% decline in their standard of living after divorce. Matthey McKeever & Nicholas Wolfinger, Reexamining the Economic Costs of Marital Disruption for Women paper presented July 15, 1997 at the annual meeting of the American Sociological Association, cited in Donald S. Moir, A New Class of Disadvantaged Children: Reflections on "Easy" Divorce in Family Affairs __ (C. D. Howe Instutute 1998) (draft at 11 n. 34).
In Canada, the government reported in 1997 that women experienced
a 23% decline in standard of living after divorce while men experienced
a 10% improvement in living standard. Statistics Canada, 1997, Family
Income After Separation, Cat. 13-588 MPB at 7-8, 10-11, cited in Donald
S. Moir, A New Class of Disadvantaged Children: Reflections on "Easy"
Divorce in Family Affairs __ (C. D. Howe Instutute 1998) (draft at 11).
Another study reported an initial average drop in Canadian women's living
standard after divorce of 23%, but after five years, that was reduced
to only a 5% compared to pre-divorce. Martin Dooley, Lone Mother Families
and Social Assistance Policy in Canada in Family Matters: New Policies
for Divorce, Lone Mothers and Child Policy at 48-49 (C. D. Howe Institute,
1995) cited in Moir, supra note __.
Obviously, this personal trauma translates in many respects
into significant social burdens. One study of demographic variables found
that "disrupted families" correlates more significantly than
any other identified variables with a multitude of social problems, including
venereal disease rates, rates of referral and treatment of mental retardation
and mental illness, infant death rates, and arrest rates. The rate of
imprisonment in correctional institutions for divorced men is fifteen
times higher than it is for married men; it is five times higher for divorced
women than it is for married women. The incidence of antisocial behavior--juvenile
delinquency and criminal act--is significantly higher for persons in divorced
and separated families than it is for persons living in intact families.
A disproportionate number of divorced families depend upon
public welfare. One recent study revealed that approximately 40% of all
families headed by a previously-married female had income below the federally-defined
poverty level; 24% of such families were receiving public assistance,
and 34% of such families with children were receiving public assistance.
The lost productivity attributable to the higher rate of disabilities
and longer hospital stays of divorced persons also affects the economic
health of the country. Moreover, the direct burdens and costs of divorce
for the judicial system, which must devote enormous time and resources
to resolving divorce-related disputes, are substantial. It has been estimated
that more than one-half of all civil filings in state courts are family
law matters. The tremendous expenditure of public funds for divorce court
administration affects all taxpayers as well as other litigants.
The severity of the problem of the instability of marriage in the United States and the gravity of the potential consequences of that phenomenon should not be underestimated. Never before has any society sustained such a high rate of divorce for as long a time as has been sustained for more than twenty-five years in the United States of America.
A very sobering study by William J. Goode suggests that the social forces that have combined to generate and support the current unprecedented rate of marital instability, are extremely powerful and socially very (self-) destructive. "The current trend toward a lesser investment of people in the collectivity of the family cannot continue indefinitely; because if the family as a social agency fails to function reasonably well, the economy -- and the society as a whole -- cannot do so either." William J. Goode, World Changes in Divorce Patterns 336 (1993). He emphasizes "the magnitude of the social problems created by large increases in marital dissolutions and the weakening of a commitment to family obligations." Goode at 320-321.
We cannot separate divorce from its social consequences or reverse the trends in social consequences without changing the social condition; it is not impossible to change those social forces but it is extremely difficult, and such phenomena do not flatten out voluntarily but usually it takes some major external force to produce the change. Goode writes: "I know of no great civilization that at the height of its power and material splendor ever changed its grand onward movement is social forces causing social destabilization, except by dissolution and military defeat." Goode at 318. "To change all these forces is very difficult. It is not impossible, but no civilization has ever moved in that direction voluntarily." Id. at 335.
Warner Troyer, Divorced Kids 174-175, (Harcourt Brace Javonovich
Moreover, it is apparent that the significant rise in the
divorce rate in the United States did not begin until the no-fault divorce
reform movement was well-underway. Thus, until the mid-1960's, the divorce
rate had been remarkably stable for twenty years, and before the World
War II-era rise in divorce rates, the rates had been stable for many more
years. The no-fault divorce reform movement was well underway by the time
the divorce rates for the United States began their significant climb
in 1967, from 2.5 divorces per 1000 people (1966) to 5.3 (1979 and 1981).
Before modern no-fault divorce reforms were accepted, the divorce rates
had been slowly rising for a long time; during the years that the legislatures
in the American states were adopting no-fault divorce laws, the divorce
rates rose abruptly and significantly; and since the no-fault divorce
reform movement peaked (leaving virtually every state with some form of
no- fault divorce), the divorce rates appear to have stabilized again--at
a significantly higher rate of divorce than has ever been recorded, much
less maintained, in the history of the United States. The United States
now has the highest rate of divorce of any western nation, and some analysts
have estimated that as many as one-half of all marriages entered into
in these days will end in divorce. In light of these society-wide trends,
it begs the question to argue that because the legislature in a particular
state was slower to accept no-fault divorce than legislatures in sister
states, the adoption of no-fault divorce laws elsewhere did not contribute
to the increase in divorce rates inside that state.
In a recent study using a quasi-experimental pre-post intervention design and archival data from the National Center for Health Statistics, researchers at the University of Oklahoma examined the effect adoption of no-fault divorce law had on the divorce rate across the 50 states. Education and income data from the U.S. Bureau of the Census and religiosity data from the Glenmary Research Center were used to assess the role of education, median family income and religiosity under the no-fault divorce regime. The researchers found that no-fault divorce laws had a significant positive effect on the divorce rate across the 50 states.
Among the other variables median family income was the only
significant predictor of the change in divorce rate; the adjusted no-fault
divorce rate increased as median family income increased. Paul A. Nakonezny,
Robert D. Shull, Joseph Lee Rodgers. "The Effect of No-Fault Divorce
Law on the Divorce Rate Across the 50 States and Its Relation to Income,
Education, and Religiosity." _Journal of Marriage and the Family_
(May 1995): 477-488 (noted in http://www.divorcereform.org/stats.html
Of course, it is impossible to determine precisely how much
no-fault divorce laws have contributed to the increased divorce rates.
Many social forces have apparently contributed to this "boom"
in divorce. However, the best evidence indicates that in at least some
states the adoption of no-fault divorce was a significant factor in increasing
divorce rates. Moreover, it seems plausible that no-fault divorce laws
in conjunction with other social factors have made divorce an easier and
more frequently invoked solution to marital problems than reformers intended.
Both the rise in divorce rates and the laws come from the
same source, changing values and norms in the larger society, alterations
in economic opportunities, political ideologies, even the models presented
by the mass media." And as people will try to get divorced, they
also will try to liberalize the grounds for divorce, so both developments
occur proximately. Goode at 322. "The law does have an impact at
the margins. Thus those who are not totally determined to divorce and
the poor are influenced by restrictive laws and administrative hurdles
. . . ." Goode at 323. Thus, thirty years ago Professor Max Rheinstein
noted that a study by a University of Chicago graduate student found that
a comparatively high incidence of divorce and breakdown was associated
with more liberal divorce laws. However, increased divorce and breakdown
were also associated with other factors including industrialization, economic
position of women, religion, urbanization, and the degree of comparative
"settledness" or "restlessness" in the area. Max Rheinstein,
Marriage Stability, Divorce and the Law 306 (1972).
For example, Washington Post/Kaiser/Harvard Survey Project American Values: 1998 National Survey of Americans on Values asked whether divorce should be easier, harder or same as it is; respondents saying that divorce should be harder outnumbered those thinking it should be easier nearly three-to-one, and outnumbered those thinking it should be the same or easier nearly two-to-one -- the highest percentage to say they thought divorce is too easy since the pollsters began charting responses to that question 30 years earlier, in 1968. The same survey also reported that 50% of those surveyed believe that divorce is "not acceptable" when the couple has children (compared to 46% who believe that divorce is acceptable then). While seventy-six percent of those polled agree in principle that divorce is acceptable at least sometimes, eighty percent of the respondents indicated that it was not acceptable at least sometimes.
A Time/CNN survey May 7-8, 1999, by Yankelovich Partners
Inc also reported that fifty percent of those surveyed agreed that "it
should be harder than it is not for married couples to get a divorce,"
while 61% agreed that it should "be harder than it now is for couples
with young children to get a divorce," and 64% agreed that people
"should be required to take a marriage-education course before they
can get a marriage license." Another survey, in 1995, reported by
Family Research Council, revealed that thirty-one to fifty-five percent
of Americans surveyed favored "divorce reform to strengthen the rights
of spouses who want to save the marriage." "Reducing the divorce
rate has become a priority in America."
The growing public sentiment to do something about the excesses
and abuses of unilateral no-fault divorce is beginning to be recognized
in many state legislatures. Some commentators refer to the introduction
of a bill to replace unilateral no-fault with marital-behavior-based grounds
for divorce in the Michigan legislature by Representative Jessie Dalman
on Valentines Day, 1996, as the beginning of the "divorce counter-revolution."
In three years, bills to revive marital-misconduct divorce standards
were introduced in at least ten states.
The first legislative reform of the fundamental terms of
no-fault divorce was enacted in 1997 by Louisiana. The covenant marriage
law enacted by the Louisiana legislature provides that parties may choose
to enter a "covenant marriage" by executing a declaration of
an intent to contract a covenant marriage and certifying by affidavit
that they have undergone premarital counseling regarding the seriousness
and nature of covenant marriage and acknowledge that divorce will only
be possible where there has been a complete and total breach of the marital
covenant. They must attest that full disclosure has been made before marriage
of "everything which could adversely affect the decision to enter"
covenant marriage. By entering a covenant marriage they commit to take
"all reasonable efforts to preserve our marriage, including marital
counseling," and commit to remain married "for the rest of our
lives." They may file this declaration of intent to contract covenant
marriage at the time they apply for a marriage license; previously-married
couples may file a declaration to designate their existing marriage as
a covenant marriage by filing a separate declaration and affidavit.
The most controversial difference between covenant marriage
and ordinary marriage in Louisiana is that in covenant marriage grounds
for divorce are restricted. While ordinary marriages can be terminated
by proof of having lived apart for six months (or upon the historical
grounds of adultery or conviction for a felony resulting in death or hard
labor), covenant marriage cannot be terminated upon six months separation.
Rather, covenant marriage may be dissolved only on six grounds: the other
spouse has committed adultery, committed a felony resulting in a sentence
of death or hard labor, abandoned the matrimonial domicile for one year,
has physically or sexually abused the spouse or child of the spouse seeking
the divorce, or the spouses have lived separate and apart for two years
without reconciliation, or one year following a legal separation--(but
if there are minor children legal separation must be at least 18 months
unless child abuse was the basis for the legal separation). Legal separation
is possible on the first five grounds above mentioned or because of the
other spouse's habitual intemperance, cruel treatment, or outrages that
are "of such a nature as to render their living together insupportable."
Actions for legal separation in a covenant marriage are limited by procedures
strictly narrowing jurisdiction, strictly limiting venue, and prohibiting
summary judgment or judgment on the pleadings.
*** Bills proposing"covenant marriage" laws were
introduced in sixteen other states in 1997 and 1998, and a total of at
least twenty state legislatures (including California's) had considered
covenant marriage proposals by 1999. That year, "covenant marriage"
bills passed at least one house in at least three additional states. By
1999, "proposals to reform no-fault divorce laws had been introduced
in a majority of states . . . ."
In 1998 another dimension of the "shifting paradigm" driving the divorce reform movement was manifest when Florida passed a "Marriage Preservation and Preparation Act" requiring all high school students in the state to be given instruction in "marriage and relationship skills education," offering a reduction in the price of marriage licenses and waiver of the three-day waiting perioid to couples who undergo at least four hours of training in a "premarital preparation course," and requiring couples who file for divorce to attend a "Parent Education and Family Stabilization Course" addressing the legal and emotional impact of divorce on adults and children, financial responsibility, laws on child abuse or neglect and conflict resolution skills.
1) replace no-fault grounds with marital-misconduct-based divorce laws;
2) require pre-marital and/or pre-divorce counseling;
3) make fault a more substantial consideration in all economic aspects of divorce;
4) legalize privately contract (precommitment) penalties and rewards to promote marriage-maintaining behavior;
5) give couples the option to choose a more committed form of marriage; or
6) impose additional divorce procedures or limitations when children are involved.
Additionally, many proposals, including the covenant marriage
laws enacted in Louisiana and Arizona, contain combinations of several
of the foregoing proposals.
Concerns about the disintegration of marriages and the family
in general are not just being expressed by conservatives any more; liberals
as well as conservatives have praised the aims of covenant marriage; even
Hillary Rodham Clinton has "expressed support for the goals of the
Louisiana covenant marriage law."
The conundrum of divorce. The following excerpt is from
Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 B.Y.U.
L. Rev. 79, 124-136.
Drafters of divorce laws encounter three dilemmas that constitute what has been called "the divorce conundrum."
The first dilemma of the divorce conundrum arises from the
need to balance two different policy goals: to alleviate the dislocation
and suffering caused by marital failure by making the divorce process
easier, and to promote marital stability and prevent or repair marital
disruption. Divorce laws affect not only people who get divorced; they
also affect marriages. Divorce laws affect the nature, expectations and
success of marriages as surely as laws governing breach of contract affect
the nature, success and performance of contracts. In establishing a divorce
law, wise lawmakers must be concerned not only with the effect of the
law upon divorcing parties and their children, but also with the impact
on ongoing marriages and families in general.
*** When marriage fails, the principal asset of the marriage
that remains--and just about the only aspect of family life with which
a court can competently deal--is the material wealth acquired by the parties
during the marriage. In an egalitarian society, there is no better model
for apportioning such assets than to begin with the premise that the spouses
valued equally their own and each others' contributions and to aim for
equality in the division of the assets and liabilities of the unsuccessful
While the rule of equality is essential to fairness in divorce,
a "higher law" governs marriage--the "higher law"
of love. The essence of love is sharing and giving, of wanting wholeheartedly
to be one (not have one-half). Fairness in marriage is expressed and measured
in terms of love. Self-sacrifice, sharing, continuous giving, and continual
forgiving are indispensable to any happy marriage. Marriage requires a
long view--eternal is the word that lovers like to use--a view that looks
beyond the dull daily duties and sometimes-difficult periods of family
An accounting mentality, so essential to fairness-as-equality, can canker marital relationships that are striving for fairness-as-love. Any marriage built on the premise that each spouse need only give fifty percent of the time, need carry only fifty percent of the burdens, and should expect to receive a full fifty percent of all the benefits may be headed for a successful divorce, not for marital satisfaction.
Additionally, no-fault divorce laws seem to "cultivate a casual commitment to marriage," to foster "the illusion of easy divorce," and to confuse "a cry for help with a demand for divorce."
results from the tension between the public and private (or privacy) interests in divorce. That is, by giving absolute priority to the private right of individuals to enter or leave marriage at will, the public interest in the abandonned spouse and in the children of the marriage is shortchanged.
The popular statistic that 50% of all marriages will end
in divorce is simply untrue. This myth probably began when the Census
Bureau reported that during one year, there were 2.4 million marriages
and 1.2 million divorces. Someone did the math without taking into account
the roughly 50 million marriages already in existence, and the myth was
born. When divorces are tracked by the year in which the couple married,
the divorce rate has risen significantly in the last couple of decades,
but the overall average rate of divorce is closer to 25%.
B. Hinckley, "Reach Out in Love and Kindness,"
Ensign, Nov. 1982, 77)
What then, might be "just cause" for breaking
the covenants of marriage?. . .only parties can determine. . . nothing
less serious than a prolonged and apparently irredeemable relationship
which is destructive of a person's dignity as a human being; NOT mental
distress, personality differences, having grown apart or falling out of
love, especially when there are children.
The complaint of a husband, after eighteen years of marriage
and five children, that he no longer loves his wife is, in my judgment,
a feeble excuse for the violation of covenants made before God and also
the evasion of the responsibilities that are the very strength of the
society of which we are a part.
I find selfishness to be the cause of it (divorce). I am
satisfied that a happy marriage is not so much a matter of romance as
it is an anxious concern for the comfort and well-being of one's companion.
Too many who come to marriage have been coddled and spoiled and somehow
led to feel that everything must be precisely right at all times, that
life is a series of entertainments, that appetites are to be satisfied
without regard to principle. How tragic the consequences of such hollow
and unreasonable thinking!
Divorce-Last year there was almost one divorce for every
two marriages, and last year there were twice as many divorces as in 1966
and there were probably more than a million children under eighteen involved
in these family breakups, for whom the emotional and other adverse consequences
may have been even more serious than for the adults themselves. We have
the lingering, ominous suspicion that the proponents of many programs
pay little attention, if any, to the sanctity of the home and family.
. . when the home is destroyed, the nation goes to pieces. There can be
no question about this, and all historians or those who have followed
a historical line of thought have come to the same conclusion.
Divorce almost invariably deprives children of these advantages.
The increasing divorce rate in the United States today is a threatening
menace to this nation's greatness. The increase throughout the United
States, and in our own state, in the percentage of divorces is alarming.
In the light of scripture, ancient and modern, we are justified
in concluding that Christ's ideal pertaining to marriage is the unbroken
home, and conditions that cause divorce are violations of his divine teachings.
Except in cases of infidelity or other extreme conditions, the Church
frowns upon divorce, and authorities look with apprehension upon the increasing
number of divorces among members of the Church.
Even though a loose interpretation of the law of the land
would grant such a man a bill of divorcement, I think he is unworthy of
a recommend to have his second marriage solemnized in the temple.
A study based on the National Family Violence Survey reported that some domestic partner violence (including married and unmarried couples) occured in about 16% of families surveyed that year. However, a study based on the National Crime Survey reported that the rate of criminal violence in families was less than 3% per year. The authors explained that the difference was probably due to the fact that the "NCS is presented to respondents as a study of crime, whereas the others are presented as studies of family problems. The difficulty with a 'crime survey' . . . is that most people thinkn of being kicked by their spouses as a wrong, but not a 'crime' in the legal sense." Straus and Gelles, How Violent Are American Families: Estimates from the National Family Violence Resurvey and Other Studies in Family Abuse and Its Consequences: New Directions in Research 20 (Hotaling, et al, eds. 1988).
Another social scientist has written: "Substantial
discrepancies among estimates of the prevalience, incidence, and correlates
of family violence compromise the usefulness of the research results."
Joseph G. Weis, Family Violence Research Methodology and Design in Family
Violence 117 (Lloyd Ohlin & Michael Tonry eds. 1989). Nonetheless,
it is clear that domestic violence is a serious problem.
The causes of abuse are many. "One study found that,
of the forty-two characteristics or "risk markers" studied in
female victims, only one -- having witnessed violence between parents
or care givers in childhood -- was consistently correlated with being
the victim of a male partner's violence. . . . Conversely, for husband
who were violent toward their femaile partners three risk markers -- witnessing
of parental violence while growing up, sexual aggression toward the wife,
and use of violence toward the children were consistently found. Alcohol
use, income level, occupational status, education level, and assertiveness
were also consistent risk markers, althoug less strong." Iren Hanson,
Frieze & Angela Browne, Violence in Marriage in Family Violence, supra,
The gender of assaulters is a subject of much dispute. According
to a 1985 National Family Violence Survey, women commit slightly more
minor assaults than men on their partners and men are slightly more guilty
of severe assaults on their partners than women. Straus, Physical Assaults
by Women Partners: A Major Social Problem, in Women, Men & Gender:
Ongoing Debates at 210 (M.R. Walsh ec., 1997). On the other hand, it appears
that men commit criminal assaults (that is serious enough to be reported
to police) nearly ten times more often than women.
In the summer of 1999, an extensive government study added
fuel to the controversy.
When partners were interviewed, 70 percent to 80 percent
agreed that physical violence took place and agreed on the extent of the
abuse, the report says.
The study was co-authored by psychology professor Terrie
Moffitt of the University of Wisconsin-Madison. The U.S. Justice Department,
which released her report Tuesday, sponsored the analysis of her data.
The research was done with 1,037 young New Zealand adults, 52 percent
male and 48 percent female.
Moffitt's study did not include "who started each incident
or if some of the acts were in self-defense, but it is clear that in most
cases of partner violence . . . , the parties are involved in mutual violence."
Although the research was done in New Zealand, it will take
its place among major, seemingly dueling studies with different findings.
Richard Gelles, co-author of two other government studies
on domestic violence, says the New Zealand research is solid: His findings
"Both our studies found the same level of self-reports
of hitting by women and men," said Gelles, now with the Penn School
of Social Work at the University of Pennsylvania. "The domestic-violence
movement has emphatically tried to ignore the fact women hit men."
The experts do agree that men are much more apt to injure
women than the other way around. "This is not an even playing field,"
Sue Osthoff of the National Clearinghouse for the Defense
of Battered Women says studies about abuse are very dicey. "Women
tend to take more responsibility for their actions," reporting more
of their abuse than men do, she said.
Studies often "don't get the full context of the abuse,"
including whether the partner's hitting is in self-defense -- often the
case with women.
Study Spotlights Abuse Of Males by Females, USA Today in
S.L. Tribune, July 14, 1999 <http://www.sltrib.com/07141999/nation_w/8047.htm>
(searched 14 July 99)
To date no "uniform" law on spousal abuse has
been drafted. However, section 304 of the Uniform Marriage and Divorce
Act, 9A Uniform Laws Annotated 91, 128-130 (1979) specifically provides
that as a part of an order for temporary maintenance or support, or as
an independent order, the court may enjoin any person from, inter alia,
molesting or distubring the peace of any party, exclude any party from
the family home or from the home of another person, or other similar relief.
Virtually all states have civil laws providing for injunction-like protective orders to issue to protect abused spouses. Lerman, infra, at 272. While the terms and provisions vary substantially from state to state, there are several common aspects to them. First, standing is typically clarified; usually only the victim of spouse abuse has standing to bring a spouse abuse action to enjoin the perpetrator for molesting or distrubing the victim, or entering her residence. Second, the statutes typically provide that some accessible public official (such as the county clerk) must assist complainants in drafting and filing their pleadings seeking relief from spouse abuse. Third, the statutes typically require the court to hear the complaint within a very short time.
Fourth, the statutes typically authorize the court to enter
a temporary restraining order ex parte. Fifth, the statutes often provide
for police notification of the entry of such orders or other procedures
to coordinate law enforcement services which may be necessary to effectuate
the order. Sixth, the statutes often refer to or contain provisions for
support social services. See e.g., Utah Code Ann. § 30-6-1 et seq
(1954); see generally Lerman, infra, at 271-73.
In addition to specific Acts designed to provide civil relief to victims of spouse abuse, general civil remedies and procedures could be employed by competent and creative counsel to obtain adequate civil protection for client victims of spouse abuse where specific spouse abuse provisions are inadequate. For instance, ordinary civil actions seeking injunctive relief against further illegal acts causing irreparable injury are possible in all jurisdictions.
Temporary restraining orders are available ex parte in such
actions. The ancient remedy of a bill of peace (or its statutory counterpart)
might provide an effective remedy (a bond to keep the peace). Moreover,
in most states statutes authorize courts to exercise broad equitable powers
in connection with divorce, annulment, or separation actions.
Additionally, general criminal provisions concerning assault,
mayhem, trespass, criminal mischief, disturbing the peace, etc. could
be applied directly to the perpetrator of spouse abuse. However, traditionally
law enforcement officers have been reluctant to interfere in domestic
quarrels because the complainants subsequently withdraw their complaints,
because fault in the quarrel is difficult to assess and victims often
forgive their attacker and refuse to prosecute, because officers often
become the victims of sudden violence when intervening in family disputes,
and because of excessive cultural tolerance for domestic violence. See
generally Bruno v. Codd, 47 N.Y.2d 582, 419 N.Y.S.2d 901, 393 N.E.2d 976
(1979)(upholding dismissal of class action by twelve abused wifes against
probation department and family courts police department also named defendant
but entered consent judgment alleging refusal to enforce laws and provide
legal services to protect battered wives, but thoroghly discussing the
problem). See further Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983)(police
officers who fail to arrest perpetrator of spouse abuse may be liable
in tort to victims).
The only issue presented is whether the doctrine of Interspousal
Tort Immunity prevents the trial of this action. We hold, that it does
not. The judgment is reversed, and the matter remanded for trial. Costs
to appellant. All statutory references are to Utah Code Annotated 1953,
unless otherwise indicated.
Prior to the adoption of the Married Women's Acts the common
law as it related to the disabilities of married women was, as we find
it, in Commentaries on the Laws of England, by Sir William Blackstone.In
the cited volume at page 290, we find the foundation stone of interspousal
"III. Having thus shewn how marriages may be made or
dissolved, I come now, lastly, to speak of the legal consequences of such
making, or dissolution.
"By marriage, the husband and wife are one person in
law: that is, the very being or legal existence of the woman is suspended
during the marriage, or at least is incorporated and consolidated into
that of the husband; under whose wing, protection, and cover, she performs
every thing; and is therefore called in our law-french a feme-covert,
foemina viro co-operta ; is said to be covert- baron, or under the protection
and influence of her husband, her baron, or lord; and her condition during
her marriage is called her coverture. Upon this principle, of an union
of person in husband and wife, depend almost all the legal rights, duties,
and disabilities, that either of them acquire by the marriage. I speak
not at present of the rights of property, but of such as are merely personal.
. . ."
In the foregoing we find the disability of coverture arising,
because of the unity of husband and wife. Upon marriage the husband and
wife became one, thus she could not sue that entity of which she was a
This condition is evidenced by other disabilities of coverture
as set out in Cooley.
"If the wife be injured in her person or her property,
she can bring no action for redress without her husband's concurrence,
and in his name, as well as her own: neither can she be sued, without
making the husband a defendant. . . ."
The pertinent part of Utah's Married Women's Act as found
in 30-2-4, is:
The statute authorizes her to prosecute and defend all actions
for the preservation and protection of her rights and property, as if
unmarried. It speaks of rights and of property in the disjunctive, and,
all actions for the preservation and protection of her rights would certainly
include a right to be free from an intentional tort of her husband.
The pertinent statute has been with us since, at least,
1888, and appeared in the revised statutes of 1898; and without alteration
has come down to the present. Lending credence to our interpretation of
that statute is the fact it was enacted with full knowledge of Article
I, Section 11, Constitution of Utah, which is as follows:
It was also enacted with full knowledge of Article IV, Section
1, of our Constitution, which is as follows:
Our Married Women's Act, as has been demonstrated, is in
derogation of the common law. As such, attending its construction, is
To read into our Married Women's Act, a proscription against
a wife suing her husband, would be to construe it so strictly as to add
a provision which the legislature did not put there.
The old common law fiction is not consonant with the realities
of today. One of the strengths of the common law was its ability to change
to meet changed conditions. Here, the Legislature did not wait for the
common law to change, it made the change for it; and did so at a time
when a great many of Utah's sister states were enacting, or had previously
enacted, Married Women's Acts. FN6 Our holding today reaffirms the Legislative
abrogation of Interspousal Immunity. That the trend in our sister states
is certainly in consonance with our holding today: See 92 A.L.R.3d 901,
at p. 923, et seq.
We reaffirm Taylor v. Patten,and call attention to the caveat,
2 Utah 2d at page 408, 275 P.2d at page 699. The caveat is as follows:
To be considered in reference to the statutes just discussed
is the universally recognized rule of statutory construction: "expressio
unius est exclusio alterius." If the Legislature had intended to
create a cause of action, or to recognize the right of a wife to sue her
husband in tort, it would and should have done so in those statutes which
specifically set forth each of the several rights which the wife does
have to bring suits for the protection of her interests, her person, and
her property. In the absence of having done so, it is to my mind inescapably
clear that there is no such statutory authority for the wife to maintain
such a cause of action against her husband.
The main opinion's other fallacy is the reliance placed
on the case of Taylor v. Patten. According to my analysis, there is no
basis in that case for departure from the policy of preserving the harmony
of the family. There a decree of divorce had been entered, and the family
had thus already disintegrated, so the reasons for protecting its solidarity
were not present. It was upon that basis, as pointed out in the concurring
opinion, that this writer as the swing vote in a divided court concurred
that, in that particular fact situation, where the wrong alleged was an
assault by the husband directly upon the wife, and where the considerations
favoring the preservation of family harmony no longer existed, the action
should proceed to trial. It is submitted that no foundation can be found
in that case to justify the present decision in saying "We affirm
Taylor v. Patten."
It is upon the basis of what has been said above that it
is my conviction that there should be no such abrupt change in our law
by judicial decision; if there is to be such change, it should be by the
Legislature. This would have the virtues not only of being done in the
proper manner, but also by the proper authority. Further, if such a change
were made, all affected thereby would be advised as to just what the change
is, and when it will be effective, so they could govern their conduct,
their contracts and their obligations accordingly.
I would affirm the decision of the district court.
Consider the following: Suppose you are moonlighting as
a police officer while finishing law school. One quiet night, just after
you have finished reading materials in your family law casebook about
domestic violence, at 3:00 a.m., you get a domestic violence call. You
and your partner respond immediately. A man came home very late and very
drunk, and started speaking very abusively and somewhat threateningly
to his wife. Her two little children were awaken by the row. Tired, angry,
and fed up with his filthy language and drunkenness, she headed to the
door with the kids in tow; he stepped toward the door; she thought (he
says wrongly) that he was going to try to block her way, so she hit him
in the mouth, hard, and his mouth started to bleed. He had experience
with domestic violence before (has was arrested), and he knows how the
system works; so he called the police and reported his wife for domestic
violence. When you arrive, he is still very drunk, very angry, now bloody,
and he demands that you arrest his wife. She is much smaller than he is,
but packs quite a wallop. Her two little daughters are clinging to her,
frightened. (This hypothetical is based on an actual case a law student
who worked part-time as a police officer, JB, had in 1995.)
If you have discretion to arrest or not, would you arrest
her? If so, what would you do with her little daughters? Would you arrest
both husband and wife? If so, what would you do with the children then?
What do you think would be in the best interests of the children in this
case? What would be in the best interests of the adults? What would in
the best interests of the family? As a police officer, do you have the
authority to accomplish what would be in the best intersts for the children,
adults or family? As a police officer, what is/should be your role, authority
and function in this kind of case? Do the courts have the authority to
accomplish what would be in the best interests of the children, adults,
or family? What is/should be the role, authority, and function of the
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