A Brief History of The No-Fault Divorce

Mary Zambreno, Dickinson Law Firm, Iowa Family Law, Des Moines Iowa

Posted on 08/03/2018 at 03:41 PM by Mary Zambreno

It was reported in the news last month that a woman in the United Kingdom was denied a request for a divorce.  Tini and Hugh Owens had apparently been married for 40 years.  Mrs. Owens pursued the divorce, claiming that her marriage was “loveless and has broken down.”  Mr. Owens refused to agree to a divorce, alleging instead that it was Mrs. Owens who had an affair.  Five justices on the Supreme Court agreed with him and denied the divorce, meaning Mr. and Mrs. Owens continue to be married.

Whereas England and Wales apparently still employ a fault-based divorce system, meaning that there must be a reason for the divorce and that allegation must be proven, every state in the United States allows for some form of a no-fault divorce, simply by one party (or both, if they agree) acknowledging that the marriage is irretrievably broken.  According to this article by Time, around the 1800s, divorces were granted only if a party could prove physical cruelty and adultery.  However, judges were given discretion to grant the divorce, even without the existence of fault, if it was “just and reasonable.”  In 1969, with the passage of the Family Law Act, California was the first state to introduce the concept of irreconcilable differences and eliminated all other fault grounds.

Iowa is a no-fault divorce state so the petitioning party only needs to claim that the marriage is irretrievably broken and there remains no likelihood of the marriage being preserved.  Some states use a combination method where they have the no-fault option but also allow petitioning parties to claim fault, such as adultery, fraud, or desertion.  As no-fault divorces gained popularity across the states, many argued that it allowed divorces to be easier to obtain.  However, one obvious advantage to the no-fault divorce system is that parties save time and money by not having to prove the fault.  For example, if the petitioning party states that the other party committed adultery, that party who made the allegation has the burden of proving the fault.  If it is not proven, then the divorce might not be granted, which is likely what happened in Mr. and Mrs. Owens’s case – her fault basis was not proved at trial.  With a no-fault system, nothing has to be proved.

Requiring two people to continue to be married, even when one party wants to leave the marriage, has serious consequences.  In Iowa, for example, when a spouse is disinherited from a will, that spouse can claim a forced share against the will, meaning that he or she would still receive about one-third of the decedent’s estate even if the decedent clearly intended to disinherit the spouse.  In the Owens’ case, that would allow Mr. Owens to take a share of Mrs. Owens assets when she dies.  It would also require abused men and women to remain with their abusive partners if abuse was not proved as a fault during the divorce proceedings.  Fortunately, however, our no-fault divorce system allows individuals to leave marriages without tying them to someone with whom they no longer want to associate.  

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed. 

- Mary Zambreno

Categories: Mary Zambreno, Family Law


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