California's 1969 no-fault divorce law and the revolution that followed

In the middle of the twentieth century, if you wanted to end a marriage in many American states, you had to commit a crime or pretend to. You could prove adultery, cruelty or desertion before a judge, or you could stage the evidence. In the stories told about the era, a husband would check into a hotel with a woman hired for the occasion, a photographer would be on hand, and the court would find that the grounds had been established. Everyone in the room knew it was theatre. The law demanded a villain, so couples manufactured one.

That is the system California abolished in 1969, and the story of what followed is one of the most consequential changes in American family law. It is also a story that conservatives have told badly, usually as a villain narrative of their own. The truth is more interesting. It involves a state commission, a Republican governor, a broken system that really was broken, and a revolution whose consequences its authors did not foresee.

Defining the terms

A fault-based divorce requires one spouse to prove that the other committed a recognised wrong: adultery, cruelty, desertion, felony conviction and, in some states, habitual drunkenness. The innocent spouse sues; the guilty spouse is the defendant. If both are at fault, some courts denied relief under a doctrine called recrimination. If both want out and neither has done anything the statute lists, the court has no ground.

A no-fault divorce allows a marriage to be dissolved without proving wrongdoing. The usual grounds are "irreconcilable differences" or "irretrievable breakdown." A unilateral no-fault regime lets one spouse obtain the divorce over the other's objection. A mutual-consent regime requires both to agree, or imposes a long separation period if they do not.

These distinctions matter more than the label. Whether the law demands mutual consent or lets one party end the marriage is where the real consequences live.

The old system and its perjury problem

Before the late 1960s, most states recognised fault grounds only. New York was the strictest: for most of the twentieth century, adultery was the sole ground for divorce in that state, until a reform in 1966 added a few others. A couple who wanted a divorce and could not prove adultery had two options: move to another state with looser rules, or commit what lawyers delicately call collusion.

Collusion was the system's open secret. A couple would agree that one of them would admit a ground, or the parties would present a stage-managed case, and the court would grant what it was asked. Judges often knew. Lawyers advised clients how to testify. The result was a body of law that required lying under oath as the normal route to a lawful result. Every honest person who wanted a divorce had to choose between staying married and committing perjury.

That is the system's real indictment, and it is worth taking seriously, since reformers were not inventing a problem. A legal regime in which the ordinary path runs through false testimony does not preserve respect for marriage. It teaches respect for neither the law nor the vows.

California's own divorce practice shared these features. The state was larger and more mobile than most, and its courts handled thousands of contested divorces in which the "grounds" were tactical.

The Family Law Act of 1969

The reform began under a Democrat. Governor Edmund G. "Pat" Brown convened a Commission on the Family in 1966, and it recommended eliminating the fault grounds for divorce. The bill was debated for several years. It was passed by the legislature in 1969 and signed by Governor Ronald Reagan, a Republican. The statute, the Family Law Act of 1969, took effect on January 1, 1970.

What it did was simple. It abolished the old fault grounds and replaced them with two: "irreconcilable differences" that have caused the irremediable breakdown of the marriage, and incurable insanity. It removed the requirement to prove that anyone had done anything wrong. And it let the court dissolve the marriage on the petition of one spouse, whether or not the other agreed.

Why did a conservative Republican governor sign it? The honest answer is that the bill did not look like a revolution when it passed. It was presented as a tidy-up of a system everyone knew was a sham, the product of a bipartisan commission, endorsed by lawyers and judges who were tired of the charade. Its supporters expected that it would reduce bitterness and perjury, and that the grounds for dissolution would continue to be decided by a judge who looked at the marriage's circumstances. Few of its supporters, as far as I can tell, expected it to make unilateral divorce nearly automatic.

I want to be careful about an inference. Some writers have said that Reagan later regretted the signing. I am not certain of the evidence for that claim, and I will not rest an argument on it. The public record is that he signed the bill, and what he thought afterwards is a matter for his biographers.

Every state followed

California was first, and then the dominoes fell. Over the following decades, other states adopted no-fault grounds, some by adding them alongside fault, some by replacing fault entirely.

The last holdout was New York. For decades its law required fault grounds or a lengthy separation by agreement. In 2010 the state added "irretrievable breakdown" for at least six months as a ground, and New York became the last state to allow a no-fault divorce. That puts the arc at forty years from the Family Law Act's effective date in California to New York's change, and when it was complete, the entire country had adopted the principle that a marriage could be ended without proof of wrong.

One feature of the spread deserves notice: it happened state by state, with each legislature making its own choice. That is federalism working as the Founders intended, and the experience of fifty states is a body of evidence that anyone can examine.

What followed

I want to be measured here, because the social science is contested and the temptation to say more than the evidence allows is strong.

The divorce rate in the United States rose in the late 1960s and 1970s, peaking around 1979 to 1980 by the federal health statistics series, and has fallen since. Whether no-fault law caused the rise, or merely coincided with changes that were already under way, is a matter on which economists and sociologists disagree. Some studies found that unilateral divorce increased the short-run divorce rate; others found the effects small and temporary. I do not think anyone can honestly say that a single statute transformed American marriage by itself. Changes in work, in women's employment, in contraception and in social attitudes were all at play.

What can be said with more confidence is what the law changed in structure. Before 1970, a spouse who wanted to stay married had a legal tool: the other spouse could not leave without proving wrongdoing. After no-fault, that protection was gone. The spouse who wanted out could leave, and the spouse who did not want out had no ground to contest. A marriage became, in legal effect, a contract that either side could end at will, with the terms of the exit left to the court. Conservatives rightly note that this changes the incentives of a marriage, since a person who invests in a family and cannot rely on the other's commitment is in a weaker position, and the person who invests the most, often the one who left paid work to raise children, is the most exposed.

The conservative argument over what to do

Conservatives disagree about this, and I will set out both positions fairly.

The case for repeal or restriction. The argument runs that no-fault divorce converted marriage from a covenant into a terminable contract, that the law's signal matters to behaviour, and that the cost has fallen on children and on the spouse who stayed home. Its proponents would restore fault grounds, or at least require mutual consent or a long waiting period where there are minor children. They point out that the old system's perjury problem was a defect of procedure and could be fixed without abandoning the principle that a marriage is a lasting commitment.

The case for reform, not repeal. The argument here is that the old fault system was cruel and dishonest, that it trapped people, including victims of abuse, in marriages they could not leave, and that a conservative should be wary of letting a court decide whose fault a marriage's failure was. Its proponents would keep no-fault grounds but add safeguards: longer waiting periods, mandatory counselling or mediation, firmer rules on custody and property that protect the spouse who gave up a career, and incentives for couples to choose a stronger form of marriage in the first place.

I will say where I come down, since a verdict is better than a shrug. Repeal of no-fault divorce is a hard case to make politically and a harder case to make humanely. The old regime required people to prove misconduct in open court, and it left battered spouses with few good options. But the reform case has a point that the repeal case must answer: the law as it stands treats a vow as a revocable preference. The better course is to add choice and friction to the front end, which is where covenant marriage comes in.

Covenant marriage

Louisiana passed the first covenant marriage law in 1997. Arizona followed in 1998 and Arkansas in 2001. Under these statutes, a couple can choose at the time of marriage between a standard marriage, governed by ordinary no-fault rules, and a covenant marriage. The covenant couple signs a declaration that they have discussed the obligations of marriage, agree to premarital counselling and promise to seek counselling if difficulties arise. Divorce in a covenant marriage is available only on specified grounds, such as adultery, abuse, abandonment or a prolonged separation.

The covenant option is a conservative idea in the proper sense. It does not force anyone into a stricter regime. It offers one, and it uses the state's power to enforce a promise that the couple chose to make. That respects the freedom of the parties, the principle of consent and the integrity of a vow.

Reports describe the uptake as small, though I have not seen current figures for each state. If that is right, it suggests that most couples do not want a harder exit, or that the option is not much promoted. Whether that means the idea has failed or that it has not been tried properly is something the sponsors and the sceptics argue about. The covenant states are a natural experiment that deserves to be watched, and other legislatures are free to run their own, which is the argument of Federalism Lets Fifty States Experiment, and the Constitution Planned It.

Measuring the revolution against the Founding

Does the Constitution say anything about divorce? Nothing. Family law was left to the states, and the Tenth Amendment, which reserves to the states and the people the powers not delegated to the United States, is the reason California could do what it did and Louisiana could do something else. The Founding generation inherited a system in which divorce was rare. It would not have designed what followed. But it also would not have thought that Washington was the place to decide.

That is a lesson for conservatives who want the answer to come from a federal statute. The proper place for the argument is the state legislature, and the proper tool is persuasion of fellow citizens about the purpose of marriage. The proposal to restore fault would need to win in fifty arenas, and it should. A reform that cannot persuade a state legislature is a reform that has not persuaded the voters.

It also connects to the larger point of the family came before the state, so why does the state act like a parent?: the state did not invent marriage and cannot abolish it, but the state's rules shape how seriously people take it. And the stakes for children run through the arguments in fathers are not optional, and the culture that says they are is wrong and the marriage penalty buried in welfare programs, with the math shown, where the legal setting of marriage appears again in the welfare system.

The case in brief

1. Before 1970, most American divorce law required proof of fault, and the system's open secret was staged evidence and perjury, which is a real indictment of the old regime.
2. California's Family Law Act of 1969, signed by Governor Ronald Reagan and effective January 1, 1970, replaced fault with no-fault grounds and let one spouse end a marriage, and every state eventually followed, ending with New York in 2010.
3. The social science on how much the law raised divorce is contested, but the legal structure changed plainly: the spouse who wants to stay has no ground to contest.
4. Conservatives divide between those who would restore fault or restrict divorce where children are involved and those who would keep no-fault and add safeguards, such as waiting periods, counselling and covenant marriage, as Louisiana (1997), Arizona (1998) and Arkansas (2001) have done.
5. The Constitution leaves the question to the states, so the argument has to be won in state legislatures.

What you can do: look up your own state's divorce statute on its legislature's website, find the grounds and any waiting period, and ask your state representative whether a covenant marriage option or a waiting period for couples with minor children has ever been proposed.