The Uniform Marriage and Divorce Act was promulgated by the National Conference of Commissioners on Uniform State Laws in 1970. Its completion and adoption fulfilled a long time ambition of the Conference, for one of the original purposes for its organization was to draft uniform statutes pertaining to the institution of marriage. We in the Conference feel that the timing of the Uniform Marriage and Divorce Act was most accurate, however. Historically, it is now that states are becoming most aware of the difficult problems in the law of domestic relations, and are considering important reforms. California led the way with comprehensive family law reform, completed also in 1970. The twin occurrences of the California legislation and the Uniform Act literally opened the door for the enactment of no-fault divorce acts. At the time of this writing, in 1975, only five states retain the common law grounds without modification. That the states were ready for some reform is a matter now of public record.
The extent and quality of reform, however, remains at issue. Grounds for divorce constitute only a minor part of .the total problem, and few states have taken on comprehensive reform. California’s pioneering act was relatively comprehensive. Kentucky was the first state to enact the entire Uniform Act. Colorado, and most recently Montana, joined Kentucky's lead. Arizona and Washington have adopted substantially the divorce provisions of the Uniform Act. Iowa, Michigan, Nebraska, and Florida have enacted fairly comprehensive divorce reform acts. The other states have merely changed the ground provisions with greater or lesser thoroughness. The greatest number have merely allowed a separation period to be a ground, without fault, added to the ordinary common law list of grounds. Comprehensive reform has been the exception, not the rule.
Ultimately, all jurisdictions will have 'to come to grips with comprehensive law reform. It makes no sense, for example, to eliminate fault grounds without eliminating them in the areas of custody and support. The most pernicious effects of the fault system are not felt in the basic attainment of the divorce decree, but in the fair determinations of child custody, and spousal and child support. It makes no sense to reform divorce law, while leaving inequities in the administration of prohibited marriages and void marriages. It makes no sense to continue the inequalities between the sexes that exist in current law, and which continue to exist after grounds for divorce are reformed. The mere reform of grounds highlights the other problems, and legislative response must inevitably follow~ Hopefully, the American jurisdictions will see the value of uniformity as a guiding principle, and the Uniform Act as the reasonable vehicle for what must be done.
Uniformity as a principle is most important in the domestic relations field. Marriages are concluded in one state, dissolved in another, and may drag into other states if there are property or child custody problems. Americans are a mobile people, moving on an average of fourteen times during a lifetime. They carry their personal and family problems with them as they go. In this context, uniformity makes a great deal of sense. The technical difficulties within marital disputes are often jurisdictional ones. If these can be eased, the disputes themselves can be eased. This removes the burden from the courts increases respect for the law, and aids the attorney and the counselor, who must help individuals resolve their domestic problems.
There are five parts to the Uniform Marriage and Divorce Act. Part I has general provisions on construction of the statute, and is very short. Part II pertains to marriage. Part III concerns dissolution of marriage. Part IV is devoted to child custody. Part V relates to the effective date of passage, and to repeal of any part, and is a standard and short section. Although the Act is meant to be a whole offering, the distinct division into parts does lend it to partition for those states which wish to use or enact only parts of it.
CONSIDERATION OF PART II
In most states the law governing the rites of marriage 18 scattered. The Uniform Act gives it some coherence. Marriage requires licensing, solemnization, and registration. In addition, prohibited marriages and invalidation must be considered. These are the topics of Part II.
To obtain a license, parties desiring marriage must fill out the appropriate application as required by the Act. The completed and signed application plus the license fee must be presented to the appropriate clerk with proof of age, proof that the marriage is not prohibited, and any medical examination certificate, if required in that state. Parties may consent to a marriage if they have attained the age of eighteen. Parental or guardian's consent must be obtained for parties between the ages of sixteen and eighteen. If a party is under the age of sixteen, judicial approval must be added to parental or guardian's consent. A court may order issuance of a license for a party aged 16 or 17 without parental or guardian's consent, or for a party under 16 years of age with that consent, only if the court finds that the party is ·capable of assuming the responsibilities of marriage and the marriage will serve his best interest." Pregnancy alone does not establish the best interests of the party concerned.
Solemnization may be accomplished by a judge of a court of record, other official with the power of marriage, or in accordance with any mode recognized by a religious denomination, Indian Nation or tribe, or Native Group. Thus tribal customs are given force and effect in the solemnization procedure. The certificate of marriage is completed and returned to the appropriate clerk. The clerk registers the marriage.
Note that Section 206(b) authorizes solemnization by proxy. If the person who solemnizes the marriage is satisfied that the absent party cannot be present and has consented to the marriage, a proxy may be utilized. Proxy marriages are not commonly permitted in the United States, but since solemnization only is involved, and since guarantees of necessary absence and consent are required, there seemed little reason not to permit them.
Prohibited marriages are set out. The prohibitions include bigamous marriages, and incestuous marriages. Marriage between relations may not occur at all between ancestors and descendents or between brothers and sisters, whether of whole or half blood, or whether adopted. Marriage of uncles and nieces, and aunts and nephews is also prohibited, whether they are whole or half blood, but established customs of aboriginal cultures may overcome this prohibition. Note that children of a prohibited marriage are legitimate, to protect their legal status.
Invalidity of marriage is coupled closely with the concept of the prohibited marriage. Notice that the common law term of annulment does not appear in the uniform act. Neither do some of the common law grounds for annulment. Annulments have long been abused and the grounds for annulments often mask the real reason for seeking to end a marriage. Annulments can be the source of depriving spouses of financial support, in particular. The uniform act seeks to rectify these defects.
The Uniform Act establishes lack of capacity to consent, lack of physical capacity to consummate, lack of appropriate parental, guardian's, or judicial consent, or prohibition of the marriage by law, as the grounds for a declaration of invalidity. In the case that parental or guardian's consent is required, the parents or guardian may seek the declaration. In all cases, a party to the marriage may seek a declaration of invalidity, within the proper time limits as set out in section 208(b) and (c). Two alternatives regarding prohibited marriages are offered in 208(c).
The Uniform Act establishes the putative spouse. A putative spouse is one who cohabits with another in the good faith bel.ief that a legal marriage exists. Such a spouse has the rights of a legal spouse until knowledge of the real fact terminates the status. A putative spouse does not supersede a legal spouse, and the court has the authority to apportion property and maintenance as appropriate and as fits the interests of justice.
The Uniform Act leaves the question of common law marriage to the enacting states. Alternative sections are offered, one abolishing common law marriage, and one retaining it. The jurisdiction can then adapt its acceptance of the Uniform Act to its own policy views on common law marriage.
Each provision in Part II tends, the Conference feels, to clarify and simplify the institution of marriage. Most states should be able to benefit from the pattern established.
CONSIDERATION OF PART III
Part III deals with the dissolution of marriage, and it is the most controversial provision of the Uniform Act. Traditionally, divorce has been granted only upon the petition of an innocent partner alleging and proving that the other partner has been at fault. Further, there could be no agreement to divorce between mutually unhappy marriage partners, since that would be wholly contradictory to the concept of fault. Fault grounds will vary from state to state, but include adultery, insanity, drunkenness or alcoholism, desertion, physical cruelty, and mental cruelty. Within such narrow categories, in the common law, divorce law had to take place.
It has been perceived that the restrictions upon divorce have not contributed to the stability of the family. In practice, people seek all kinds of means to sever the marriage. The divorce rate ascends notwithstanding the state of the law. People resort to perjury, if necessary. They forum shop, if necessary. If people are too poor to devise a sophisticated response to these restrictions, they merely split up and live as if divorced, even though the legal severance is ignored. In the process, the law becomes distorted, its observance becomes a farce, and cynicism is fostered in the general populace.
The fault grounds we have had in the common law have simply not reflected the realities of married life. People find that they cannot live together for reasons that they may not even recognize. When they divorce, they fit facts to whatever ground is most convenient, or they devise facts to fit a convenient ground. The law is no impediment to the divorce.
Therefore, in an effort to get at the reality of relationships between people, the Uniform Act eliminates fault grounds. It also eliminates the barriers to collusion. Part III contains these provisions, and provides language pertaining to all aspects of the "dissolution" of marriages.
Spouses may seek one of the available remedies for a broken marriage, either separation or dissolution, after establishing domicil of at least 90 days. The objection to long or onerous residency requirements is thus met. Military service within the jurisdiction for 90 days qualifies an individual also. A party may seek separation rather than divorce, unless the other party objects.
Pleadings must generally conform to the rules of civil procedure. The process begins with the filing of a verified petition alleging that the marriage is irretrievably broken. It sets forth also appropriate data about the parties and their children. The other party must be served as provided in the prevailing rules of civil procedure. If the party so served desires to answer, he must file a verified response within a suggested time of 30 days.
The court has the power to issue temporary orders or injunctions regulating questions of support, maintenance, distribution of property, and confrontation between parties. These are powers to ameliorate problems arising between filing the verified petition and final disposition of the dispute.
A hearing follows petition and response. If the consent of both parties is obtained to the effect, or if the responding party does not deny it, the court "shall make a finding whether the marriage is irretrievably broken". In the language of Section 303(b) (3), irretrievable breakdown occurs if there is a separation of more than 180 days preceding the commencement of the proceeding or, "there is serious marital discord adversely affecting the attitude of one or both of the parties toward the marriage, and there is no· reasonable prospect of reconciliation…" Fault is eliminated in determining the dissolution or separation. Commensurately, the traditional defenses are abolished.
If there is a contested proceeding, by a denial of irretrievable breakdown, the court has optional powers. It may make a finding whether the marriage is irretrievably broken, or it may continue the matter. Continuance can be for no less than thirty days, but can be for no longer than sixty days. The court may suggest counseling, and it may order a conciliation conference. At the end of the continuance, the court "shall make a finding whether the marriage is irretrievably broken." Again, fault plays no part in the determination. It is a question of the reasonable prospect of reconciliation.
These provisions constitute the guts of Part III. One ground, irretrievably breakdown; abolition of defenses, temporary power to regulate the affairs of parties before final disposition1 and simple procedures, are the key aspects in achieving reforms. In dissolution, some other things must also be considered, however.
If separation is sought, the parties may enter an agreement regulating its force and effect. The court must enforce it unless provisions of it are unconscionable. The court also has the power to supervise the amount of support, notwithstanding the agreement.
Disposition of property is also a problem. There are two provisions, one for common law jurisdictions and one for community property states. In essence, the provision for common law states allows for an equitable division of all property between parting spouses. The provisions for community property states divide property along the lines of contribution to the marriage, a practice which would largely parallel current practice. Standards are established for the equitable distribution of marital property. A definition of marital property may be found in section 307(b).
Maintenance and child support are also problems in a dissolution of marriage. Section 308 and 309 attempt to put the determination of the responsibility to pay and the amount upon reasonable, equitable grounds. There are enforcement and modification provisions also.
With these provisions, Part III is complete. A state enacting the Uniform Act will not fail to achieve well-regulated dissolution of marriage proceedings. These, of course, will promote the best interests of the parties. The state will have served its citizens well.
CONSIDERATION OF PART IV
The National Conference of Commissioners on Uniform State Laws promulgated the Uniform Child Custody Jurisdiction in 1968. This Act was designed to eliminate some difficulties long perceived in the determination of which court shall have jurisdiction in a cross-jurisdictional custody dispute. Basically, jurisdiction followed the domicil of the child in the Uniform Child Custody Jurisdiction Act.
Part IV of the Uniform Marriage and Divorce Act also concerns child custody. Its primary concern is with substantive and procedural problems, and not so much with jurisdiction. With regard to jurisdiction, it is meant to be integrated with the Uniform Child Custody Jurisdiction Act. Section 401 is the key section in this regard.
The great single value of Part IV is its effort to make child custody matters turn on the test of "the best interests of the child". The Act requires the court to take into account a variety of factors in making a determination as to the best interests of the child. These include the wishes of the parents~ the wishes of the child~ the interaction between the child and its parents, siblings or other person who might significantly affect its best interests~ the child's adjustment to its home, school, and community~ and, the mental and physical. health of all individuals involved. The court has the power to interview the child, and to seek the advice of professional personnel in making a custody decision. If custody is contested and a parent, or custodian requests it, a full investigation may be ordered. In each of these provisions, the court is provided the means of discovering what the best interests of the child actually are.
Other provisions relate to the procedural aspects of granting custody. Section 406 concerns hearings. Section 408 is devoted to judicial supervision of custody. Section 409 provides procedures and standards for modifying a custody decree. Section 410 requires affidavits to accompany a motion seeking temporary custody or modification of decree. Temporary custody orders pending final decree are governed in section 403. These provisions complete the pattern of Part IV.
The Uniform Marriage and Divorce Act, as a whole, would in most states be of great benefit in the administration of domestic relations disputes. The National Conference of Commissioners on Uniform State Laws hopes that your state will give the whole serious consideration. It should again be observed, however, that the principal parts may be severed for individual enactment. A state choosing to use a part of the Act should take some care in integrating that part with existing law regarding marriage and divorce. In whole or in part, we invite you to make the best use of the Act that you deem advisable.