The Right to Divorce: Its Direction, and Why It Matters
4 Iɴᴛ’ʟ. J. Jᴜʀɪs. Fᴀᴍ. 133 (2013).
26 Pages Posted: 15 Aug 2018
Date Written: 2013
Following the last decades' no-fault divorce revolution, it is now common in western legal regimes that a spouse unilaterally may obtain divorce upon demand. Moreover, various courts, as well as legal commentators, claim that people have a right to divorce; that is, that limitation on one's right to unilaterally divorce infringes a basic or even a constitutional right. Nevertheless, the nature of this alleged right has yet to be characterized. This article aims to clarify the nature of the right to divorce, using the analytic tools of the 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 a careful examination of the reasons behind the move to a unilateral no-fault divorce regime, I argue that this right should be construed as being directed toward the state, or the legal order, rather than toward the spouse to whom the right-holder is married. I demonstrate that while one may have a valid claim to 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 that relate to the possibility of a civil remedy in cases of violations of the right to divorce (including cases that 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 and normative ramifications of regulating family relations.
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