The Right to Divorce: Its Direction and Why It Matters
International Journal of the Jurisprudence of the Family, Forthcoming
Posted: 7 Jan 2014
Date Written: January 7, 2014
Following the last decades’ ‘no-fault divorce revolution,’ it is now common in western legal regimes that a spouse may unilaterally obtain divorce upon demand. Moreover, various courts, as well as legal commentators, claim that people have a ‘right to divorce’, namely that limitation on one’s right to unilaterally divorce infringes a basic, or even a constitutional, right. However, the nature of this alleged right has yet to be characterized.
This paper aims at clarifying the nature of the right to divorce, utilizing the analytic tools of general theory of rights. Rights come to the normative world with a direction: one’s right imposes a duty (or other normative relation) on someone else. There is a need to inquire, then, whose duty correlates with the right to divorce, or – in other terms – what the direction of this right is.
The answer is more complicated than it seems at first glance. Drawing on careful examination of the reasons behind the move to unilateral no-fault regime, I argue that this right should be construed as directed towards the state, or the legal order, rather than towards the other spouse to whom the right-holder is married. I demonstrate that while one might have a valid claim for a no-fault divorce regime, such a claim should not impose any direct duty on one’s spouse. I then show the implications of this analysis on pressing doctrinal questions which relate to the possibility of civil remedy in cases of violations of the right to divorce (including cases which involve religious law). The right to divorce, I contend, is a consequence of state-regulated marriage and divorce. This, in turn, opens the door to a better understanding of the role of regulating family relations and its normative ramifications.
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