The 40th Anniversary of “No-Fault” Divorce

On September 5, 1969, Governor Ronald Reagan signed the Family Law Act, launching California as the first state in the nation with ‘no-fault’ divorce.

The law quickly took hold elsewhere, including Iowa, which followed California’s lead six months later.

By 1971, Colorado, Florida, Michigan and Oregon had no-fault divorce laws and within fifteen years the law had spread nationwide.

Most policy analysts agree that no-fault divorce has weakened the “traditional family since one person could now end the marriage unilaterally.” Some say it threw open the door to “marriages” of same-sex partners, since adultery – which has a particular definition – was taken off the law books. Same-sex partners are not capable of adultery and hence, could now qualify for divorce on the basis of “breakdown” of the relationship.

Who were the key players in this family policy revolution? Who were the ‘villains’ and were there any ‘heroes’?

Some might name Governor Reagan as the biggest villain since he could have blocked the bill by vetoing it. He himself had been divorced-against-his-will by his first wife, actress Jane Wyman and he considered himself a family man. Although his name will be forever linked with no-fault divorce, it turns out that he may be the only who has expressed regret about his role.

Late in life, Reagan confessed to his oldest son, Michael that, signing the bill was one of the worst mistakes he ever made in public office. Michael tells the story about his father in Twice Adopted .

While Reagan had a prominent visible role, the man who was probably the most responsible for this bill worked behind the scenes and his story is not well-known.

Assemblyman James A. Hayes from southern California was self-described as the bill’s author. By the time he attained the role of Assembly Judiciary Chairman, his wife had already filed for divorce on the ground of ‘cruelty.’ Hayes’ new role on the Judiciary Committee provided him with an opportunity that he used to his personal advantage.

With the implementation of no-fault divorce on January 1, 1970, the rules of the game abruptly changed, turning the tables on all pending cases, including that of Hayes’ wife. As a result, Hayes was able to reduce his ‘damages’ in the final settlement. The newspapers later reported that his wife and four children did not fare so well and turned to food stamps.

Hayes claims he coined the term “irreconcilable differences” because he didn’t like the proposed term, “breakdown” — it sounded too negative.

Hayes had to convince Reagan to sign the bill, and during their one-hour meeting Hayes found the job challenging. Reagan wanted to veto the bill, but Hayes pressed him to sign it by ticking off the names of those who were ‘on board.’ In fact, in Hayes reflections on that period, he made it sound like everyone was on board.

Hayes even claimed that he worked with representatives of the Catholic Church and that the Archdiocese of Sacramento was particularly supportive.

In 1969, Republicans controlled the political scene in California, with Reagan just having defeated Pat Brown, a Democrat. Republicans also controlled the senate and assembly. The Republican Party would later take on the title of the “Party of Family Values.”

Iowa, which was the next state to enact no-fault, was also Republican-controlled with its own popular Republican governor, Robert Ray, signing the bill.

By all accounts, there were few if any heroes. Most policymakers were ‘sold’ on the bill, but when looking at previous accounts, it’s not clear whether they really understood what it the bill would do. Most accounts portray it as a “mutual consent” type of measure, but in reality, it was not. Only one party needed to bring a divorce action knowing that the “State” would assure them of the outcome.

Looking back at what we now know, is this fortieth anniversary begging some questions?

One question might be whether there was deception in the process. Would a similar law be possible today if the story got out that the main player had such a strong personal vested interest? At the time, the media did not report on the divorce lawsuit filed by Hayes’ wife.

Secondly, would Catholic Church officials have endorsed this bill if they’d known the full truth about it — that it would quickly turn into “unilateral divorce-on-demand” with the state doing a yeoman’s job for the one filing for divorce, leaving the other party defenseless in such a lawsuit?

In Iowa, some legislators labeled the bill an “attorneys’ bill” because they could see the benefit to members of the bar but no benefit to families.

One of the bigger questions that Catholics and other Christians might consider is this: How did the State obtain such sweeping jurisdiction over this God-ordained institution? Is marriage merely a civil institution? Does pre-marital instruction, along with promises to live up to church teachings mean anything?

For Catholics, where does the Church’s canon law fit into the picture? And, where are the “church courts” that could hear cases falling within the her jurisdiction?

Do the Canons and teachings in Catechism apply only “after the fact” –- once the divorce is finalized? Or, are these elements meant to be a strong buffer, bringing couples back to their vows and to the teachings of the Church?

“Jurisdiction” is loaded with implications. Under whose jurisdiction do we place ourselves? Canon law is written for “The People of God.”

Most people who are intent on filing for divorce will seek the jurisdiction of the civil court. The first step is usually hiring an attorney to prepare the paperwork. But, what if it didn’t work that way?

Maybe Church officials should be prepared to assert jurisdiction when approached. Why should we be limited to only one jurisdiction? We are asked to make a commitment to church teachings at the front end of marriage. Why shouldn’t we ask church leaders to provide a forum like the one Paul talks about in 1 Cor. 6:1?

St. Paul admonishes us about bringing lawsuits against our brothers. We are supposed to be able to settle things amongst ourselves, using a fair and just process.

We could learn how to set up church governance in such a way that those who stray to the civil arena could be called back. They could present their complaints and have them heard amongst those who are properly trained. In the beginning, very few would know how to hear a case and provide a fair and just process. But, we could learn.

Instead, too many members of the flock now find themselves disillusioned after receiving a summons for divorce from the civil court, turning to ask for help from the Church, and then being turned away. Just because we don’t know how to do it now, doesn’t mean we can’t learn. There’s an opportunity here. Will we respond?

Most churches have so many committees doing various things. Why not one more committee: the Complaints and Adjudication Committee?

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  • Bruce Roeder

    Interesting article.

    I agree that no-fault divorce is a horrible law and one of “the big five” along with pornography, contraception, abortion, and normalizing homosexual acts.

    I’m not sure I agree that some kind of a Christian version of the sanhedrin or sharia law is the answer, though. The Church has the sacraments, the teaching office, and sacred scripture.

  • pursuejustice

    Ms. Parejko, you are right on. A Christian version of the courts is very much different from the Jewish sanhedrin and different from the secular courts because, as it suggests in 1 Cor. 6:5, the “dispute resolver,” the judge, is to be a wise person whose purpose (according to Gal. 6:1-2) is GENTLE correction and restoration according to the sacred Scripture, the “Law of Christ,” meaning GENTLE application of the letter of the law WITHOUT FORGETTING the Spirit of the law. Who should judge your marriage dispute, a stranger who may not even believe in God and who does not allow the Ten Commandments to hang on the wall of the courtroom, or a Christian friend who loves the Bible and its wisdom, who loves the Lord, and who loves you, your spouse, and your children? It’s a great idea, really. Thanks!

  • plowshare

    “Unilateral divorce on demand” hits the nail on the head. Ironic, isn’t it, how some people used to make fun of Muslims for the way a husband can get a divorce simply by saying “I divorce thee” to his wife on three separate occasions? Now both husbands and wives have a similar privilege throughout the land.

  • SeanReynoldsNZ

    Incidentally, for one to get an annulment in the Catholic Church in New Zealand, one must already have obtained a civil divorce.

    But to me this is part of where those who seek to redefine marriage got one of their first footholds. Marriage went from being “till death do us part” to being until we no longer like each other do us part. It means that marriage is no longer a lifelong committment. It takes on something more akin to a contract. Incidentally, prostitution is a contract, but marriage is a covenant as it involves a total exchange of persons.

    Thinking as well of marriage, when Jolene and I wed last year the first question we got asked was if we had come to our Nuptial Mass free of reservations. Let’s face something else here: THE EXISTENCE OF A PRE-NUPTIAL AGREEMENT IS A DECLARATION THAT ONE HAS RESERVATIONS ON THEIR WEDDING DAY! If you need a pre-nuptial agreement with your fiance, my advice would be don’t even bother getting married, as you are lying to her face and invalidating your marriage right from the get-go. Tear up the pre-nuptial agreement first. Go into it without any reservations. After all, a pre-nuptial agreement is a plan to get yourselves out of a marriage.

    The other point is that no-fault divorce essentially instituted polygamy as a form of marriage. How? You can only be married to one person at a time right? That is correct. But no-fault divorce allows you to marry multiple people while your previous spouse is alive, as long as you do it one at a time. So really serial polygamy has become enshrined in law.

  • ronpilgrim

    Interesting. Article sort of lacked focus, though. But okay.

  • Mary Kochan

    I discussed this with the author — wanting something a bit more concrete. After we went round about, I decided to publish as is.

    The reason is that when you begin to push a bit on this topic, you start to see so many ramifications of every part of it, that you realize that the tentacles of divorce reach into every aspect of life. We live in a culture that has been so warped by this phenomena that we can hardly imagine another reality. We are so far from finding answers that we are still trying to figure out what the right questions are.

  • judyparejko

    I concede your point about “lack of focus.” I struggled with the focus …to place blame? …to change the law? I decided to resurrect an perspective that is 2,000 years old…

    Mary wanted me to give more information on the nuts and bolts of how it would work. But, I’m not an expert on the process of ‘adjudication.’ What I do know is that the process now in place destroys faith, families, and relationships.

    And, what about “jurisdiction”? One of the parties actually “invokes” the jurisdiction of the state. Doesn’t canon law require a visit to the bishop prior to invoking a state court action?

    The purpose of the article was to remember this historic occasion and to provide further context, but perhaps, even more important was to pose some questions. And, like Mary said above, “We are so far from finding the answers that we are still trying to figure out what the right questions are.”

    Ron – maybe you can offer your own thoughts – or some ‘focus’ on how we should deal with this very difficult issue?

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  • John