Proceedings in Committee of the Whole

Uniform Marriage and Divorce Act

August 8, 1969

CHAIRMAN MERRILL: Of course, so far as the phraseology of the statute is concerned, we have used the word "dissolution." Perhaps you are suggesting that the Committee be restyled. That’s for the Executive Committee to consider.

MR. CUNNINGHAM [N. Dak.]: Well, if that’s the policy, this may be a good idea. I don’t know. It’s going back to what Roman law had, and that may be a good idea, but I question the manner in which this thing is going to be implemented. {90} There is no point in having any papers filed or any hearing, or anything of this sort, if all you need to do is have an agreement initially between the parties that the marriage is done.

It seems to me that if you are going to make a new stab in a new direction and get away from fault concepts — with which I agree — and get away from the adversary character of the procedure, why don’t you take advantage of the continental system and make this an inquisitorial type of test, just to be satisfied that the parties are really sincere in wanting this divorce, that this consent is honest, and then empower the judge to make an investigation, to call the parties, if they are available to him, and to make the decision the best way he can that, yes, these parties do feel this way?

And if he has that finding, then I see no quarrel with the mandatory requirement; but here you have no need for any type of investigation at all. The parties can just submit a piece of paper saying they agree, and that’s it. The judge can only then rubber stamp it. There’s no need for further inquiry at all. I think some built-in inquiry system should be incorporated into it.

CHAIRMAN MERRILL: Commissioner, as the Committee views the matter, while this is a basic societal interest, {91} there are other societal interests which need to be dealt with in the dissolution of even the childless marriage by the common consent of the parties, and we have incorporated the means for dealing with those interests judicially in the provisions of Section 201. And we do feel that there is a judicial function to be performed in that connection.