As I’ve been discussing in my last
two
blog posts, the remedies available for intimate deception contracted significantly
over the course of the twentieth century or became much less important. The advent of no-fault divorce was probably the
most important factor behind this decline.
Through the 1960s, divorce was available only for cause and
difficult to win. The restrictions on
divorce led many unhappy spouses to seek annulments on the ground that they had
been duped into marriage. Over the
course of decades and hundreds of cases, judges developed an elaborate annulment
jurisprudence—now all but forgotten—that regulated premarital deceit, deciding
which forms of deception the law expected people to endure and which provided
grounds for escaping a marriage.
In 1970, however, California became the first state to
institute no-fault divorce and the innovation spread rapidly through the nation. The rise of no-fault divorce means that fewer
deceived intimates come to court because people no longer need to prove wrongdoing
to end their marriages. When people do
sue their spouses for harming them through deception, moreover, courts
sometimes dismiss their claims on the ground that such interspousal litigation
is incompatible with the availability of no-fault divorce.
I don’t find that argument convincing. Establishing the legal right to end an
unhappy marriage was a crucial advance for liberty and autonomy. But the availability of no-fault divorce does
not and should not mean that conduct within marriage falls outside the law’s concern,
so there is no civil remedy for injuries one spouse inflicts on another. If that was the case, then the existence of
no-fault divorce would suggest that a person beaten during her marriage cannot sue
her abusive spouse for battery because divorce is her only available remedy. Such a position is unappealing and
inconsistent with the abolition of interspousal tort immunity in almost all
states.
While marriage is a union, it no longer marks the
disappearance of individual personhood—for women or men. Marrying should not mean losing your rights to
pursue ordinary civil remedies when injured.
Thanks for reading. It
has been a delight to write about Intimate Lies and the Law
on Valentine’s Day!
— Jill Hasday
