The Future of Family Law

• Author: Henry H. Foster
• DOI: 10.1177/000271626938300112
• Published date: 01 May 1969
• Date: 01 May 1969
• Subject Matter: Articles

The Future of Family Law
By HENRY H. FOSTER, JR.
ABSTRACT: In the nineteenth century, marriage and divorce
became matters of judicial cognizance. Ambivalence toward
divorce is shown by the propensity of Anglo-American law
to maintain a strict divorce law in theory, but to institu-
tionalize divorce in practice, so that, in reality, divorce is
readily obtainable when both parties desire it. Social change
and a general rejection of hypocrisy have led to a reform of
matrimonial law following World War II. Recent legal
opinions agree on the necessity for reform, but differ concern-
ing whether non-fault-grounds should be added to fault-
grounds as a basis for divorce.
Ferment and change are also
occurring in laws concerning matrimonial property, alimony,
and support. Juvenile courts may no longer deprive juveniles
of due process on the theory that institutionalization is treat-
ment for the good of the
juvenile delinquent. Family law
depends, in large measure, upon advances in behavioral sci-
ence.
However, the moral sense of the community is also
a necessary element. Family law reflects changing social
values and felt needs of the people, but there is a time lag
between mores and law, which may be observed by noting
the difference between "living law" and formal law. It is
likely that legal aid and community legal services will give
greater assistance to poor families with problems, and that
welfare laws will eventually be changed in order to promote
family stability.
Henry H. Foster, Jr., LL.M., New York City, is Professor of Law, New York Uni-
versity Law School, and is admitted to practice law in New York, Pennsylvania, and
Nebraska, and by the Supreme Court of the United States. Professor Foster is coauthor
(with D. Freed) of Law and the Family-New York (2 vols., 1966, 1967) and (with
J. Davis and others) of Society and the Law (1962).
129

---

130
THE compromise between clerical
concern
same phenomenon occurred, and in New
and private interest in mar-
York, before its law was reformed, 96
riage and divorce achieved a new equi-
percent of divorces were uncontested.2
2
librium after the Second World War.
The explanation of the &dquo;no-contest&dquo;
Increasingly, it came to be recognized
feature of modern divorce is that, in the
that unduly restrictive divorce legisla-
case of middle- and upper-income fami-
tion was circumvented in practice by an
lies, either both wanted to escape from
institutionalization of the process by
an intolerable situation or a satisfactory
those determined to escape the bonds of
settlement had been reached; and in the
acrimony, and that more social and per-
case of lower-income families, a legal
sonal harm was occasioned by strict
perpetuation of a dead marriage was not
laws unevenly applied than by a frank
worth the cost and effort. The affluent
recognition that, in our society, many
and well-to-do found that obtaining a
marriages fail through the fault of
divorce was mostly a matter of law-
neither, or through the fault of both, of
office negotiation, that the law concern-
the parties.
ing grounds and defenses provided bar-
From the standpoint of social evolu-
gaining leverage, but that if an accord
tion, the law of marriage and divorce
could be reached as to financial and cus-
before
the
twentieth
century was
todial terms, it was relatively easy to
marked by a change in the legal status
obtain a divorce decree, except possibly
of women, from that of subordination
in a few states, or before a rare judge
to that of equality, and by the gradual
who was overly inquisitive.
abandonment, in practice, of the Protes-
The law pertaining to the economics
tant ethic that marriage was indissolu-
of marriage and divorce has shown less
ble, save for the most serious marital
change in the twentieth century than
offenses.
Divorce by mutual consent
the law of divorce. A few states, how-
became a sociological fact before the
ever, permit alimony to be awarded to
turn of the century / although the pre-
a husband in unusual situations,3 and
tense was indulged that the law had not
in welfare cases, either spouse may be
changed. What had changed was the
ordered to contribute to the support of
administration of the law, the appear-
a destitute partner, in order to save the
ance of the uncontested case, and the
taxpayers’ money.4
4
ritualization of the whole process of di-
The current development of constitu-
vorce.
The routine issuance of divorce
tional protections for civil rights in-
decrees in uncontested cases increased
2
Jacobson, AMERICAN MARRIAGE AND DI-
to the point that, by the 1950’s, over 90
VORCE 115 (1959).
CALIFORNIA GOVERNOR’S
percent of American divorces were un-
COMMISSION REPORT 30-33 (1966) sets the
contested. In England and Canada, the
uncontested divorce rate in California at 94
1
BRYCE, Marriage and Divorce under Ro-
percent, and G. B. LAW COMMISSION, REFORM
OF THE GROUNDS OF DIVORCE : THE FIELD OF
man and English Law, 2 STUDIES IN HISTORY
CHOICE, 28-29
AND JURISPRUDENCE 442 (1901), points out:
(CMND No. 3123, 1966), sets
"It is doubtless
the rate in
a point of difference between
England at 93 percent.
3

Roman law and that of modern American
The following states permit alimony to be
states that in the former the parties could by
awarded to husbands in some circumstances:
their own will and act terminate the mar-
Alaska, California, Illinois, Iowa, Maine, Mas-
riage; in the latter the courts must be in-
sachusetts, Nebraska, New Hampshire, North
voked to do so, but where the courts out of
Dakota, Ohio, Oklahoma, Utah, Vermont,
good nature or carelessness make a practice of
Virginia, West Virginia, Wisconsin, and Wash-
complying with the application of one party,
ington.
unresisted
4

or feebly resisted by the other, this
For example, see New York’s Family Court
difference disappears."
Act § 415, SOCIAL WELFARE LAW § 101.

---

131
cludes that of freedom to marry. The
DIVORCE, ANNULMENT, AND
Supreme Court, in Loving v. Virginia,5
JUDICIAL SEPARATION
not only declared miscegenation laws
unconstitutional, but also characterized
The traditional matrimonial actions
marriage as &dquo;a basic civil right of
are divorce, annulment, and judicial
man.&dquo;
As we shall see, far-reaching
separation.
In England, before the
consequences may result from that
Matrimonial Causes Act of 1857, only
classification.
the latter two were available, and then
In the case of children, the most
only pursuant to the canon law and
important development of the past dec-
authority of ecclesiastical courts. Par-
ade is the decline of the parens patriae
liamentary divorce was the limited pre-
concept and the growth of a realistic in-
rogative of the extremely wealthy.8
sistence that juveniles be accorded jus-
Judicial divorce and the recognition of
tice.6
There is a growing recognition
grounds therefor, occurred in America
that premises and assumptions should be
before they did in England. Nonethe-
carefully examined and that an intel-
less, by statute or decision, many eccle-
ligent effort should be made to look
siastical rules and concepts found their
at the consequences of decision and to
way from English ecclesiastical law into
ascertain what really is for the best
our law of divorce, even though such
interests of children.
rules and concepts had been fashioned
In short, by the 1960’s, family law
for totally different circumstances.9 The
was in ferment.
State regulation of
English rules were devised when the
marriage had been subjected to consti-
common law concerning matrimonial
tutional limitations; divorce reform was
property gave the husband, upon mar-
in the offing; alimony and support had
riage, the ownership of his wife’s per-
become the subject of increasing criti-
sonal property and the management
cism ; and law as it impinged upon
and profit from her real estate; hence
children was undergoing reappraisal.
it was not unfair that he should be
Equally important, the interrelationship
compelled to pay her alimony when he
between poverty and family law was
had given her good cause for a bed-and-
perceived, and, through legal programs
board divorce. This history is impor-
for the poor, the law came into con-
tant because it accounts for some of the
tact with problems formerly solved or
anomalies of American divorce law and
avoided by extralegal processes.
In
because it shows that churchmen, rather
terms of social evolution, Sir Henry
than lawyers, devised the framework of
Maine’s thesis that progressive societies
the law.
move from status to contract, and that
Today, it is generally agreed that
there is a gradual dissolution of family
much of the law of annulment is anach-
dependency and the growth of individual
ronistic and should be repealed.10 In its
obligation in its place, with legal rela-
original form, annulment wiped the slate
tions arising from the free agreement
8
See Mueller, Inquiry Into a Divorceless
of individuals, seemed to be confirmed
Society, 18 U. PITT. L. REV. 43 (1961).
by recent developments.7
7
Social change
9
See Freed and Foster, Divorce American
was being reflected by law, but there
Style, in this issue of THE ANNALS, pp.
71-88.
was a time lag.
10
See Goda, The Historical Evolution of the
5
Loving v. Virginia, 388 U.S. 1 (1967).
Concepts of Void and Voidable Marriages, 7
6
Matter of Gault, 387 U.S. 1 (1967).
J. FAMILY L. 297 (1967); Moore, Defenses
7
MAINE, ANCIENT LAW 163 (4th Am. ed.,
Available in Annulment Actions, 7 J. FAMILY
1906).
L. 239 (1967).

---

132
clean...