Principle of Guilt

Traditionally, marriages were controlled by the church and/or state and therefore they could only be dismantled if one party had “acted wrongly” according to the prevailing religious or non-secular laws.

The wrongdoer was punished by losing rights such as support claims and were often prohibited from normal parenting.

Think of poor Anna Karenina. She was a vibrant and intelligent woman married to a boring government official. By chance she met the exciting Vronsky and becomes infatuated. Vronsky fell in love with her for her beauty, intelligence, and effervescence. Anna finally felt “seen” and this was irresistible to Anna. Their passion blossomed and was not containable. Vronsky introduced her to his female cousin, who is also charming and exciting and befriended Anna. They talk about progressive ideas: freedom, independence, and the pursuit of happiness. When Anna’s husband suspects something is up, Anna impulsively tells her husband the truth. As a result, she is banished from her beloved young son. Anna is heart broken. She continued her love affair with Vronsky but the once-euphoric relationship becomes burdened by her grief, anxiety, and bitterness. Anna pays dearly for her transgressions.

Historically, post-divorce financial support was closely tied to conduct. A “faultless” woman was entitled to financial support. Whereas if the woman was the wrongdoer, she received no financial support. The idea was that whoever “caused” the divorce could not benefit.

Before 1968 in Canada, you could only get a divorce if you established one of the official grounds, namely, adultery or cruelty. Parties had to have evidence of the guilt of the other party, so a spouse would often need to hire a private detective to catch their spouse in the act.

Divorce court judges would be required to examine photos of a party in flagrante delicto: “in the very act of committing the offense; red-handed; while engaged in sexual activity.” I’m sure this is not evidence that the courts relished, nor would they wish that they or their spouse would one day be showing this type of evidence to another judge.

No-Fault Divorce

In 1968, Canada adopted the “no-fault” divorce system, and you could get divorced simply based on a separation. The no-fault system applies to property division and support also, insofar as the person who “behaved badly” and “caused” the divorce will not be punished financially by receiving a smaller share of the family property or receiving less support or paying more support. In terms of parenting, the bad conduct of a parent is not considered unless it impacts the children.

Many other jurisdictions around the world have moved to “no-fault” divorce, saving people who are fed up with each other (for any reason) from having to prove to the court that they have a good enough reason to want out.

A late-comer, the U.K., finally adopted the no-fault system in 2022. In its press release announcing the new law coming into force, the U.K. government said “[the Divorce, Dissolution and Separation Act 2020] stops one partner from vindictively contesting a divorce and locking their spouse into an unhappy marriage. In some cases, domestic abusers can use their ability to challenge the process to further harm their victims or to trap them in the relationship. The reforms will put an end to this behaviour.”

Reinstating the Principle of Guilt

There are ill-conceived conservative movements underway to reinstate the “principle of guilt”, or Schuldprinzip, as they say in Germany, into the divorce courts. Schuldprinzip is fine for criminal law, namely, a person cannot be found guilty of, or receive punishment for a crime unless that person willfully committed the crime.

However, the principle of guilt has no place in the divorce context. Intimate relationships are personal and complex, and when such a relationship ends, it may be an over-simplification to fit the cause of the problems into a designated category.

More importantly, no person should be trapped in a marriage. Many types of domestic abuse are difficult to prove, and the effort to prove abuse can be insurmountably dangerous and expensive for a victim.

Some common reasons people cite for wanting a divorce that do not fit into a “principle of guilt” are:

• lack of commitment,
• too much arguing,
• financial problems,
• growing apart,
• religious differences,
• lack of love, and
• not being able to talk together.

The reasons people want to get out of their marriage are deeply personal. It’s none of the state’s or the church’s business.

The global trend away from divorce-by-finger-pointing is sensible and positive. Most sane-minded people do not want the unnecessary expense, delay, risk and potential embarrassment.