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No-fault divorce is the dissolution of a marriage, upon petition to the court by either party, without the requirement that the petitioner show fault on the part of the other party. Either party may request, and receive, the dissolution of the marriage, despite the objections of the other party.

Russian history

No-fault divorce was invented by the Bolsheviks following the Russian Revolution of 1917. Before the Revolution, churches, mosques, and synagogues defined family life. It was the ecclesiastical law of the various denominations that controlled the family, marriage, and divorce. For example, the official registration of birth, death, marriage, and divorce was the responsibility of the church parish. Under these non-secular laws, divorce was highly restricted. It was essential for Bolsheviks, with their Marxist disdain for religion, to replace the ecclesiastical bond with an allegiance to the Communist party and the new Russian government; they sought to eliminate the old bourgeois notions of the family and the home.

The 1918 Decree on Divorce eliminated the religious marriage and the underlying ecclesiastical law, by replacing them with civil marriage sanctioned by the state. Divorce was obtained by filing a mutual consent document with the Russian Registry Office, or by the unilateral request of one party to the court. This new institution was designed to create a strong sense of allegiance to and an actual dependence upon the government.

United States history

Modern "no-fault" divorce came about because of widespread disgust among lawyers, judges, and the general public with the "putative divorces" that were commonplace throughout much of the 20th century. It also came about because of the recognition that while having two-parent households was important, love was a major part of marriage, and it made no sense to keep children in a family where their parents no longer loved each other.

Prior to the no-fault divorce revolution, a divorce could be obtained only through a showing of fault. This was something more than not loving one another; it meant that one spouse had to plead that the other had committed adultery or abandonment or some other similarly sinful act. However, the other spouse could plead a variety of defenses like recrimination. Often, a judge might find that the defendant had not committed the alleged act, or that both spouses were at fault for the fact that the marriage was dysfunctional. Either way, the judge would refuse to dissolve the marriage.

Subsequently, at some point the two spouses would each find some other person they really loved, and then would seek to marry that other person. But first, they had to get rid of their existing marriage or risk prosecution for bigamy. The solution was a putative divorce, in which both sides deliberately agreed that the wife would come home at a certain time and discover her husband committing adultery with a "mistress" obtained for the occasion. She would then swear to a carefully tailored version of these facts in court (committing perjury in the process), the husband would sheepishly admit to a similar version of the facts, the judge would convict the husband of adultery (or some other sin like cruelty), and the couple would be divorced.

This procedure was explained by California Supreme Court justice Stanley Mosk in a passionate dissent:

Every day, in every superior court in the state, the same melancholy charade was played: the "innocent" spouse, generally the wife, would take the stand and, to the accompanying cacophony of sobbing and nose-blowing, testify under the deft guidance of an attorney to the spousal conduct that she deemed "cruel." — In re Marriage of McKim, 6 Cal. 3d 673 (1972) (Mosk, J., dissenting) .

Needless to say, this empty procedure was appalling to both lawyers and judges, who felt that it made oaths meaningless and threatened to destroy the integrity of the American justice system (by making lying in court into a commonplace occurrence).

Throughout the 1960s, numerous commentators pointed out that it might be best to recognize that two spouses who were determined to end their marriage would get what they wanted by any means necessary. Therefore, they argued, the law should adapt by providing a straightforward procedure for ending a marriage, rather than forcing a couple who just couldn't get along to choose between living together in "marital hell" or lying under oath in open court.

"No-fault" divorce was pioneered in the United States by the state of California with the passage of the Family Law Act of 1969, which took effect on January 1, 1970, and allowed spouses to dissolve their marriage on the grounds of "irreconciliable differences."

United States metrics

Over 50% of all first marriages end in divorce. The divorce rates for subsequent marriages are even higher. More than half of all these marriages that end in divorce involve children. Whether these are contested divorces or not, the courts will control the lives of these children until they are emancipated, typically between 18 and 21 years of age. In terms of raw number, there has been an average of about 1 million divorces in the Unites States, each year since 1975.

• Divorce
• Family law