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THEORIES OF DIVORCE “Guilt & Fault Theory”

 THEORIES OF DIVORCE “Guilt & Fault Theory”


“Divorce isn’t such a tragedy. A tragedy’s staying in an unhappy marriage, teaching your children the wrong things about love. Nobody ever died of divorce.”
― Jennifer Weiner


  1. GUILT THEORY

The guilt or offence theory of divorce is essentially a 19th century
concept where the society abhorred divorce as an evil, as devil‘s
mischief, and therefore that society could agree for divorce only on that
basis that one of the parties has committed some sin, some very heinous offence against marriage. As a corollary to the guilt of one party, the other party was required to be totally innocent.

The offence theory stipulates for two things: 

(i) a guilty party, i.e., the party who has committed one of the specified matrimonial offences, and 

(ii) an innocent party, who has been outraged and who has played no role in the criminality or the matrimonial offence of the other party. If the purpose of the divorce law was the punishment of the guilty party, then it was natural to lay  down that the other party should have no complicity in the guilt of the
offending party. If the petitioner‘s hands are not clean, he cannot
seek relief.

The guilt theory, on the one hand, implies, a guilty party, i.e.,
commission of matrimonial offence on the part of one of the parties to the marriage, and, on the other hand, it implies that the other party is innocent, i.e., in no way a party to, or responsible for, the offence of the guilty party. This principle was taken very far in English law; so much so that if both the parties, independently of each other, committed matrimonial offence the marriage could not be dissolved. For instance, if a petition is presented on the ground of respondent‘s adultery and it is established that the petitioner is also guilty of adultery, then the petitioner cannot be allowed divorce. This is known as the doctrine of recrimination.


  1. Possible Faults

This type of divorce can be based in any of the following:
• cruelty which includes the infliction of unnecessary emotional or physical pain
and abusive treatment
• adultery means voluntary sexual activity between a married person with a person
other than his or her spouse
• desertion or a specified length of time
• confinement in prison for a number of years
• alcohol or drug abuse
• insanity
• physical inability to engage in sexual intercourse, if it was not disclosed before
marriage
• infecting the other spouse with a sexually transmitted disease



There are also defenses which can be raised by the other spouse in a
fault divorce proceedings.


• Recrimination - It is the defence wherein the accused spouse in an action for
divorce makes a similar accusation against the complainant spouse.
• Condonation - Which usually takes the form of implied or express forgiveness of
a spouse's marital wrong and, therefore, weakens the accusers‘ case.
• Connivance - Which is the act of knowingly and wrongly overlooking or
assenting without placing any opposition to a spouse's marital misconduct,
especially to adultery.
• Reconciliation - Where the spouses voluntarily resume marital relation by
cohabiting as spouses prior to a divorce becoming final with mutual intention of
remaining together and re-establishing a harmonious relationship.
• Provocation - Inciting the other spouse to do a certain act. An example of this is
when a spouse claiming for abandonment, the other spouse may raise the defense
that the claiming spouse provoked the abandonment.









THEORIES OF DIVORCE “Guilt & Fault Theory”


“Divorce isn’t such a tragedy. A tragedy’s staying in an unhappy marriage, teaching your children the wrong things about love. Nobody ever died of divorce.”
― Jennifer Weiner


  1. GUILT THEORY

The guilt or offence theory of divorce is essentially a 19th century
concept where the society abhorred divorce as an evil, as devil‘s
mischief, and therefore that society could agree for divorce only on that
basis that one of the parties has committed some sin, some very heinous offence against marriage. As a corollary to the guilt of one party, the other party was required to be totally innocent.

The offence theory stipulates for two things: 

(i) a guilty party, i.e., the party who has committed one of the specified matrimonial offences, and 

(ii) an innocent party, who has been outraged and who has played no role in the criminality or the matrimonial offence of the other party. If the purpose of the divorce law was the punishment of the guilty party, then it was natural to lay  down that the other party should have no complicity in the guilt of the
offending party. If the petitioner‘s hands are not clean, he cannot
seek relief.

The guilt theory, on the one hand, implies, a guilty party, i.e.,
commission of matrimonial offence on the part of one of the parties to the marriage, and, on the other hand, it implies that the other party is innocent, i.e., in no way a party to, or responsible for, the offence of the guilty party. This principle was taken very far in English law; so much so that if both the parties, independently of each other, committed matrimonial offence the marriage could not be dissolved. For instance, if a petition is presented on the ground of respondent‘s adultery and it is established that the petitioner is also guilty of adultery, then the petitioner cannot be allowed divorce. This is known as the doctrine of recrimination.


  1. Possible Faults

This type of divorce can be based in any of the following:
• cruelty which includes the infliction of unnecessary emotional or physical pain
and abusive treatment
• adultery means voluntary sexual activity between a married person with a person
other than his or her spouse
• desertion or a specified length of time
• confinement in prison for a number of years
• alcohol or drug abuse
• insanity
• physical inability to engage in sexual intercourse, if it was not disclosed before
marriage
• infecting the other spouse with a sexually transmitted disease



There are also defenses which can be raised by the other spouse in a
fault divorce proceedings.


• Recrimination - It is the defence wherein the accused spouse in an action for
divorce makes a similar accusation against the complainant spouse.
• Condonation - Which usually takes the form of implied or express forgiveness of
a spouse's marital wrong and, therefore, weakens the accusers‘ case.
• Connivance - Which is the act of knowingly and wrongly overlooking or
assenting without placing any opposition to a spouse's marital misconduct,
especially to adultery.
• Reconciliation - Where the spouses voluntarily resume marital relation by
cohabiting as spouses prior to a divorce becoming final with mutual intention of
remaining together and re-establishing a harmonious relationship.
• Provocation - Inciting the other spouse to do a certain act. An example of this is
when a spouse claiming for abandonment, the other spouse may raise the defense
that the claiming spouse provoked the abandonment.
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