Proceedings in Committee of the Whole

Report of The Special Committee on

Uniform Divorce and Marriage Laws of the

Conference of Commissioners on Uniform Law

Hollywood, Florida

Thursday Afternoon, August 5, 1965

Mr. Leonard G. Brown, of New Jersey, presiding;

Mr. Bernard Hellring, of New Jersey, presenting the report.

CHAIRMAN BROWN: Members of the Conference: We had a very interesting meeting on Tuesday night with all of the sections of family law in the Conference. They met with the members of the Uniform Marriage and Divorce Committee, and as a result we filed a report which was unanimously accepted by that group. We realize that we are usurping the time of the Conference today, but we felt it sufficiently important that the members be acquainted with the Committee’s new concept and approach to this very serious problem. With that thought in mind, I am going to ask Commissioner Hellring, of New Jersey, if he will read the report.

MR. HELLRING: I would like to say that Commissioner Brockelbank [Moscow, Id.], who has made a great contribution to this matter, as well as the other members of the Committee on Uniform Divorce and Marriage Laws, ought to be up here with us; namely, Commissioner Sullivan, of [Boise] Idaho, Commissioner Witherspoon [Meridian, Miss.], and Commissioner Munter [Wash., D.C.], all of whom participated in the discussions which gave rise to and resulted in the adoption of {2} this report Tuesday.

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The report of the special Committee on Uniform Divorce and Marriage Laws

of the Conference of Commissioners on Uniform Laws:

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Threescore and seven years ago this Conference of Commissioners on Uniform Laws was established, largely for the initial purpose of making more uniform the laws of the various States on the subject of Divorce and Marriage. Since that time, the Conference has distinguished itself in many areas. No significant contribution has been made on the subject of Divorce and Marriage.

We venture to express the view that the time is appropriate in the development of our American society for such a contribution to be successful at this time. It is singularly appropriate now that the whole subject be evaluated anew, due to the great sociological changes which are being daily effectuated in ordinary living. This is particularly true in home, in marriage contracts, in the raising and custody of children, in religious circles and in the rapidly developing fields of social work. The Ecumenical spirit pervades the world. The sole emphasis in the past upon the religious and the moral in Divorce and Marriage, is now affected by the social and economic problems of contemporary life. {3}

All would agree that greater uniformity in the laws of Divorce and Marriage among our States is desirable. When the wife of a wealthy governor of our greatest State goes 2,500 miles to a foreign jurisdiction for the purpose of consummating a Divorce upon which the parties have previously agreed, it is obviously time for something to be done. The artificial limitations on divorce in our most enlightened jurisdictions fosters fictions of jurisdiction, perjury and disrespect for the law generally.

Unrealistic outlets and causes for divorce in other jurisdictions only foster the same fictions, perjury and disrespect for the law and are equally reprehensible.

As debilitating as the existing hodgepodge of laws on Divorce and Marriage may be upon the lives of the participants, the destructive effect upon children is incalculable. If the time for improvement and uniformity in this field were not at hand for the sake of the marriage partners, it is surely at hand for the sake of the children.

As a part of this report, we have annexed a brilliant series of articles published during the last week in a leading newspaper in New Jersey which is the result of an incisive study and examination of the problems to which we refer. New Jersey has been in the forefront of the modern {4} development of Judicial Administration. In the same spirit and under the leadership of its great Governor, Richard J. Hughes (formerly the Presiding Judge of the Appellate Division of its Superior Court), New Jersey has been making sincere and determined (but so far unavailing) efforts at improvement in the laws on Divorce and Marriage.

Some contend that conditions will have to deteriorate further until Congress somehow preempts the field with a Federal Act. We disagree; and urge that greater Uniformity is the only proper solution, that the time is now, and the place is here in this Conference of Commissioners on the Uniform Laws.

In the early days of our jurisprudence[,] the law on Divorce and Marriage, grounded largely in ecclesiastical law, was more flexible and reflective of fairness and equity than any other field of the law. The situation has now reversed itself.

Forms of Action were long disfavored as restrictive, artificial, cumbersome, often obstructive of Justice and favoring the rich against the poor. Accordingly, Forms of Action were long ago abolished in most common law jurisdictions. Assumpsit and Trover are now merely reminders of an imperfect historical past, the lumbering and inflexible period in the {5} development of our Jurisprudence. Yet the only field of the law in which Forms of Action still abound and still constrict is Divorce and Marriage. Adultery, Desertion, Extreme Cruelty — each a Form of Action; each a mold into which litigants and lawyers must "find a way" to fit or manufacture some facts. We submit that there is no more justification for the presence and use of "Forms of Action" in the administration of the laws of Divorce and Marriage than in any other field of the law — indeed there is less justification.

The absence of facts which fit into a particular statutory form is surely no reason in today’s society for the denial of divorce. Similarly, the existence of facts which happen to fit into one of these pre-cast molds is no longer necessarily a proper basis for granting divorce. And surely, the necessity of contriving a fictional state of fact whether as to "Grounds" or jurisdiction makes no sense at all. So, for example, the act of adultery insures the granting of a divorce in most jurisdictions. Is it always a sensible reason for the dissolution of a marriage, without regard to the destructive effect of that dissolution upon the lives of the children involved? The question becomes even more troublesome when the evidence of adultery is of a contrived or questionable character. {6}

For all the foregoing reasons and others too long to be detailed in this report, we submit that the goal of Uniformity requires a new departure in legislation in this field. It requires an elimination of the "Forms of Action" approach to the administration of the Divorce laws. It requires an analysis of the entire subject of the custody of children as an integral part of drafting any legislation on the subject of Divorce and Marriage.

To this end, we recommend the establishment of a more integrated Special Committee of the Conference Of Commissioners on

Uniform Laws in this field; the recruitment of an able, paid staff with time to devote to necessary research and careful drafting. This staff and the Committee should consult with an Advisory Committee consisting of representatives from the fields of psychiatry, religion, social work and every other phase of our Society which has bearing upon the issues involved. We recommend further that appropriate representations be made to existing Foundations for the financing of this project.

This is a major project and its consummation will bring to this Conference its finest hour and the fruition of its initial purpose.

Respectfully submitted for the Committee. {7}

MR. MERRILL: Thank you.

Gentlemen, in view of the lateness of the hour we are simply putting this information before you in order that you may see the approach and the shape of things to come. Obviously, the recommendations call for action by the Executive Committee. We do not know what that action will be, but it is hoped that there will be some attention paid to this area.