THE CALIFORNIA FAMILY LAW ACT OF 1970: 21 MONTHS EXPERIENCE

• DOI: http://doi.org/10.1111/j.174-1617.1971.tb00720.x
• Author: William P. Hogoboom
• Published date: 01 September 1971
• Date: 01 September 1971

THE

CALIFORNIA

FAMILY

LAW

ACT

OF

1970:

21

MONTHS

EXPERIENCE

William

P.

Hogoboom

*

The California Family Law Act became

effective January 1, 1970’ following several

years

of

study by the legislature, assisted by some

of

the

leading judges, lawyers, law professors and be-

havioral scientists of the State.

*

Its significance

lies in the fact that it is the first law in the Western

world to completely abolish any requirement

of

a

showing of fault as the basis for dissolution

of

mar-

riage. (The

term

“divorce” became dissolution

of

marriage under the new

Act).

Most

common-law jurisdictions have long

prescribed that

a

marriage can

be

ended only upon

a

judicial determination

of

the existence

of

“grounds,”

based upon

a

concept

of

wrong doing. In California

these formerly

were

adultery, extreme cruelty (either

physical

or

mental), wilful desertion, wilful neglect,

habitual intemperance and conviction

of

a felony.

Only two were used in

99%

of

the cases: adultery

and cruelty.

A

seventh ground, incurable insanity,

was not based on fault. The Family Law Act elimi-

nated those artificial standards

of

fault.

.

The first six grounds

of

divorce mentioned

above were abolished and one substituted in its place.

That

sole

ground, in the language

of

the Act,

is:

“Irreconcilable differences, which have caused the

irremediable breakdown

of

the marriage.”3 In the

language

of

the new law, irreconcilable differences

are those grounds which are determined by the court

to be substantial reasons for not continuing the mar-

*

Judge

of

the Superior Court

Los

Angeles County,

California and Supervisory Judge, Family Law Depart-

ments.

1.

The Family Law Act is composed

of

Sections 4000 to

5138

of

the California Civil Code; the entire legis-

lation, which repealed many old sections without

re-enactment

ji.e..

relating to recrimination, conni-

vance, collusion, and condonation among others) and

amended

other

code provisions

to

conform

to

nomen-.

clatirre.

may

be

iound

in Stats, 1969,

Chapter

1608

(Senate

E!li

:!52j,

and

Chapter

lh09

(Assembly

Bill

1--31j7

(West’s

California Legisiative

‘ence hereafter will he

made

to

“Rule

Iirilwr only. These are Judicial Counell

Rules

~onfiiineil

i.

Title

Four, Special Rules

For

Trial

Courts I.’uliiornia Ruies

of

Court. The

mandatory

forms

OT

piesding

and practice referred to

(Petiiion,

R?~~JOI~:-P..

Summons, Order

to

Show

Cause,

Hcquest

jut’

I:n:t.)

of

Default, Judgment, and

others)

are

a

part

ol

these

rules.

vcrnor’s Commission on the

Fair:iiy,

S‘atr

Printing Office. Sacramento.

3.

Cal. Civ.

Code

-$50h(l)

riage and which make it appear that the marriage

should be dissolved.

4

The term “irreconcilable

differences” in practical effect, the sole ground

for

divorce, was chosen by the Legislature because it

is, in fact, descriptive

of

the frame

of

mind of

spouses in a marriage which is no longer viable.5

The addition

of

the modifying phrase “which have

caused the irremediable breakdown of the marriage”

was not intended as the imposition of a second

standard

to

that

of

irreconcilable differences6

The

ground

of

incurable insanity

was

re-

tained’ but changed substantially to require only

proof

of

the existence

of

incurable insanity

at

the

time of filing and hearing,B rather than the previously

required three years

of

institutional confinement.

The safeguard

of

mandatory representation of the

insane spouse in all proceedings, and the protection

of

property and support rights

were

retained unchanged.9

Not only was fault eliminated

as

a

ground

in divorce proceedings, but a sweeping ban on evi-

dence of specific acts

of

misconduct

was

enacted.

The new law provides that specific acts

of

mis-

conduct are “improper and inadmissible” in any

pleading, or as evidence in any proceeding. includ-

ing depositions

or

discovery.10 There are two ex-

ceptions

to

this blanket prohibition:

(1)

that they may

be shown when child custody

is

in issue and the

evidence is relevant to that issue; or, (2)at the hear-

ing “where it

is

determined by the court to be

necessary to establish the existence of irreconcilable

differences,”

1

this latter a

rare

occurrence. Even

in contested custody pleadings

are

restricted: “Al-

legations that parental custody would be detrimental

to the child, other than

a

statement

of

that ultimate

fact, shall not appear in the pleading.”l2 In addition

both custody and dissolution hearings may be con-

ducted in private, in the discretion

of

the court.13

4.

Cal. Civ. Code 4507

5.

See

Journal

of

the

California

Assembly,

August

8,

1969, p. 8057,

for

a disciission.

6.

Ibid.

7.

Cal. Civ. Code

4506(2)

8.

Cal. Civ. Code 4510

9.

Ibid.

10.

Cal. Civ. Code 4509

11.

Cal. Civ. Code 4509

12.

Cal.

Civ.

Code 4600

13.

Cal. Civ. Code 4360. 4600

5