“Two Countries Separated by the Same Language”: Comparing Marriage under U.S. Law and English Common Law

The Law From Here

By Divya Maharaj

Welcome to another installment of The Law From Here, our globe-trotting series that gives you a chance to get to know GSU Law’s LLM students. Like many of our LLM students, Divya Maharaj has considerable experience researching the law of another country–here, the Caribbean twin-island nation of Trinidad and Tobago. Divya has an LLB from the University of London and an LLM from Staffordshire University, in addition to being a recent graduate of GSU’s LLM program. In Trinidad and Tobago, she spent some time working under the nation’s former attorney general before working as an independent attorney. In today’s very special The Law From Here, Divya takes a look at some of the different ways that English Common Law and U.S. Way treat marriage.

George Bernard Shaw said, “England and America are two countries separated by the same language”. Before I immigrated to the US, I had very little idea about how extensive this “separation” is because it goes much beyond language and extends even to the sphere of the legal systems which originate from the same English Common Law (ECL). As a practitioner and student of law, the more comparative research I conducted in this sphere, the more I realized the extent of this “separation”. However, before going any further, here is a disclaimer. Although Trinidad and Tobago is my country of origin, the legal system there is almost entirely based on ECL, and in addition, I am an English-educated attorney and hence when it comes to law, England is my home country and hence the prologue.

Divya Maharaj

Amongst the many major differences, one that I stumbled upon recently was in the domain of Family Law–more precisely in the unpleasant arena of Divorce Law. Divorce in England and Wales, and by extension in Trinidad and Tobago as well, is guided by the Matrimonial Causes Act (MCA) 1973 pt 1, s 1(2), wherein, divorce can only be considered when a marriage has irretrievably broken, which again is determined if one or more of the following facts are satisfied: (1) respondent committed adultery; (2) respondent’s behavior made living together impossible; (3) respondent deserted for at least a continuous two year period; (4) the parties had at least two years of continuous separation if they have consented to a decree of separation; or (5) the parties had at least five years of continuous separation if there was no decree of separation. Even with the last two clauses, the law there is mostly a fault-based one and the divorce petition statistics also show that a vast majority of the petitioners rely upon fault as the ground for divorce, adultery and unreasonable behavior being the most popular ones.

However, from my research I have come to realize that there are quite a number of important differences between the laws of the US versus that of England and Wales. Some of the major ones are as follows. First, due the no-fault divorce law revolution of the 1970s, the overall framework in the US has tilted mostly towards no-fault grounds, even though fault grounds still exist. Second, marriage and divorce here is mostly guided by the state laws, therefore a single law is not guiding divorce for the entire country. Third, even though all fifty states now allow no-fault divorce, there are many different flavors of the laws. On the one end of the spectrum are the seventeen states allowing divorce solely on no-fault grounds (e.g. California, Washington, etc.). Case in point is California where, per California Family Code 2310, divorce can be granted on the following two grounds: (1) irreconcilable differences, resulting in marriage breakdown; and (2) permanent legal incapacity to make decisions. On the other end of the spectrum are the thirty-three other states allowing divorce on a mix of fault and no-fault grounds (e.g. Texas, Georgia, Utah, etc.). Case in point is Georgia, where, per Georgia Code § 19-5-3, divorce can be granted on the following grounds: (1) prohibited types of intermarriage; (2) mental incapacity; (3) impotency; (4) force, menace, duress, or fraud in the process of marriage; (5) wife’s pregnancy by someone other than the husband; (6) adultery of either party; (7) willful and continued desertion by any of the parties for one year; (8) conviction of either party for moral turpitude offense, resulting in two or more years of imprisonment; (9) habitual intoxication; (10) cruel treatment; (11) incurable mental illness; and (12) habitual drug addiction; and (13) the marriage being “irretrievably broken” (i.e., the no fault option). Fourth, regarding the no-fault divorce related separation clauses, there are differences between state laws on the duration based on whether the divorce is consent-based or unilateral. In many states, the parties can go for immediate divorce if it is consensual (e.g. Texas, Florida, etc.). For unilateral ones, the duration of separation varies from state to state as follows, with some of them allowing as short a duration as one month (e.g. Alabama), whereas some requiring as long a duration as two years (e.g. Illinois). Fifth, in a handful of states where fault-based clauses are still important, there are some unusual additional grounds as well. For example, New Hampshire, where joining a religious sect which destroys marriage can be a ground for divorce, or Illinois, where infecting a spouse with venereal disease can be a ground. Sixth, even with the existence of fault-clauses, the general trend in the country has been towards no-fault based divorce. Finally, in a limited number of states like Louisiana and Arizona, there is the concept of “covenant marriage” which does not exist in England. In this arrangement, parties opting for it are required to go for premarital education classes and promise to seek marital counseling in case of later problems to preserve the marriage, with no-faults no-fault divorce not available as an option.

After researching the legal frameworks, I also proceeded towards gauging the relative experiences with the highly fault tilted, versus the highly no-fault tilted divorce law frameworks in these two jurisdictions; note that when it comes to the US, by “jurisdiction” I mean the overall US. It was quite interesting to see the prevalence of “grass in greener on the other side” sentiment on both sides.

On the English side of the fence, a comprehensive and widely accepted study by Nuffield Foundation highlighted the following major challenges because of high reliance upon fault-based divorces. First, fault-based framework’s original objective of preserving the institution of marriage by making divorces difficult, has not really been satisfied. Second, a great degree of dishonesty has crept into the process because, irrespective of the reality, the parties have found that they can short circuit the process by using fault, thus avoiding the long separation period requirements and trigger faster divorces. Third, reliance upon fault has given rise to higher levels of acrimony in the divorce process, thus greatly increasing the suffering of children. Fourth, the fault-based proceedings are highly unjust towards the respondent in a high percentage of cases because of truth being taken out of context. Finally, reliance upon fault has, in many cases, resulted in protracted legal battles and has severely impacted the quality of life. A glaring example is the highly debated and publicized case of Owens v. Owens, where although it was found that the marriage has irretrievably broken after 37 years, the judge refused to grant a divorce on the ground: that the petitioner’s fault-based allegations (e.g. intolerable behavior) were just minor altercations which can be expected in a marriage; and that the respondent was also opposing the divorce. The petitioner’s further appeal was unanimously dismissed by the Supreme Court even though the judge expressed his “uneasiness”. The petitioner is still waiting before she can apply for a divorce on the basis of separation grounds, while living quite unhappily in a marriage which does not work anymore. As a result of all these, a strong push has come from various quarters of the society that the law, which has not seen any change since 1973, needs to be reformed towards a no-fault based one so that it is more in alignment with the laws in other developed western nations like the US.

However, on the US side of the fence, because of many decades of experience with the no-fault framework, some major challenges have been observed as well. First, no-fault has caused a substantial rise in divorce rates in the US, probably arising mostly from unilateral divorces. In fact, the US has one the highest divorce rates in the world. Second, in the absence of the conflicts arising from the need to prove fault, fights over custody and support have taken its place, and these have become more prevalent with the similar, if not higher, level of acrimony and humiliation in the process. Third, dishonesty in the process has shifted from falsification in order to prove fault, to falsification in order to get a favorable bargain on the collateral aspect of the divorce process, which is evidenced by a rise in the level of one of the party falsely accusing the other party of child sexual abuse in order to get the children’s custody. Finally, due to the shorter wait period for non-consensual divorces, the party intending to divorce may just wait and simply leave at the end of the waiting period, thereby possibly putting the other spouse who did not want to divorce at a considerable disadvantage, and thus having a higher bargaining power. As a result of these factors, a sentiment opposite to the other side of the Atlantic is prevalent in some sections of the US society. Although there has not been much success, here the detractors of the no-fault framework have been trying to bring fault into the mainstream again. One effect of this push can be evidenced in the introduction of “covenant marriage” in a handful of states as mentioned earlier.

In conclusion, I can only say that this ongoing research has broadened my knowledge horizon and made me realize that I definitely need to undertake more of these exploratory comparative research initiatives. All of the sudden, I see Hamlet appearing in front of my sleepy eyes and say: “There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.” So, yes, my research will continue!