What is No-Fault Divorce?
No-Fault Divorce is a legal creation designed to avoid constitutional challenge to the State’s authority to regulate marriage and to allow state’s to continue punishing exercise of the Right to Divorce.
Under our English Legal Tradition, marriage and divorce were regulated under religious law and common law under religious justifications. Because of this religious tradition, there was no generally recognized right to divorce, although it did happen to differing degrees. There were some very limited terms under which divorce was permissible under these laws, but they mostly depended upon the fault of a party such as extra-marital sexual relationships — cheating, or cruel treatment.
This is why divorce was traditionally regulated by courts under the common law. The “fault” established a conflict between the parties based upon past conduct that invoked judicial authority and made the act justiciable. It is the duty of courts to resolve legal rights when there is a conflict between parties based upon past acts or omissions. Where the law permits punishment or relief based upon this past conduct, judges were the proper parties to deal with divorce.
In America, the trend of constitutional protections for private associations threatened the very lucrative legal regulation of marriage by States, and threatened to increase the animosity between state and federal courts. To avoid the implications of these changes, States chose to adopt no-fault divorce as a means to avoid serious constitutional questions into the very basis of State authority to regulate marriage at all. Remember, the State may NOT compel people to associate nor punish their choices to cease associating. It would take only one federal holding specifying that this fact must apply to the marital association to completely decimate State authority to regulate marriage. This the States very much want to avoid.
The very real problem with this patchwork fix is that it causes State divorce law to violate the Supremacy Clause in a way that can only be repaired if the State is willing to establish a massive State Executive bureaucracy to regulate divorce as the Separation of Powers Doctrine demands, because judges must remain independent of the State policy choices they are to adjudge under constitutional challenge. Because there is no justiciable conflict between the parties to be resolved, the recognition of the change in marital status becomes a mere Executive policy choice as applied to individuals. When judges make policy choices, they give up their neutrality and independence which is absolutely necessary before they can make legitimate judicial holdings regarding changes in marital status and regarding all the granted marital privileges that must be undone as a consequence.
Judges in divorce and child custody suits are neither neutral nor independent and thus their actions cannot be considered judicial action under Separation of Powers Doctrine. By creating No-Fault divorce, the State’s did NOT prevent the total destruction of their historical power to regulate marriage, they simply delayed the inevitable. Domestic relations regulation in this Country is profoundly rotten and corrupt at its very core and cannot possibly survive a serious constitutional challenge in its current state.