S/he Done Me Wrong: Adversarial Versus “No-fault” Divorce

Abstract

The rules and regulations governing the dissolution of marriage build a legal framework. While we might inhabit the place in various ways, the structure itself is at least partly determined by our rules for dismantling it. In this way, divorce defines marriage. For those of us growing up in a time and place in which “no-fault” divorce has always been available, the historical character of divorce as a judgment or punishment seems archaic. The notion that divorce might be shameful or scandalous is almost laughable today, yet the availability of unilateral, no-fault divorce is barely a generation old. Things have changed. Indeed, the increased incidence of divorce over the last thirty years or so is often claimed to be a particularly poignant sign of our times. However, the operation and effects of different divorce rationales are rarely examined in any depth. Adversarial divorce is generally assumed to be more “difficult” than no-fault divorce, but in what sense, and with what effects? Does a more flexible procedure for the dissolution of marriage construct a more flexible institution? This chapter explores the broad, largescale transition from adversarial to no-fault divorce. Until the mid-1970s, most nations whose legal traditions are English allowed divorce only where one spouse wronged the other.