Friday, February 14, 2020

How No-Fault Divorce Transformed the Law Governing Intimate Deception (Happy Valentine’s Day!)

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