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Abstract

European scholars have in the past tended to look askance at the more permissive American divorce laws, but of late influential voices have been heard advocating a change in the basis of divorce law. The present climate of opinion suggests that there is a real possibility of a "non-fault" statute being seriously canvassed in the United Kingdom Parliament in the immediate future. Recent articles suggest that English jurists too favour "departure from fault." The subject of this dialogue is thus a very live issue in England, as well as in some states of the United States and some provinces of Canada; limited "breakthroughs" have already been achieved in New Zealand and Australia;" and, among non-common law jurisdictions, peoples so diverse as Eastern Europeans, Scandinavians, Germans, and Frenchmen have shown a tendency to relax their divorce laws.

I. Introduction

II. Recrimination—Is It Necessary to "Fault"?

III. A Suggested "Modification" of Recrimination

IV. Why the "Matrimonial Offence" Ought to Be Retained … A. The Inconvenience of Change … B. Collusive Practices Rejected as a Valid Reason for Change … C. Concern at the Incidence of Divorce … D. Conciliation Procedures … E. The Need to Ascertain Responsibility in Order to Adjudicate upon "Ancillary" Relief … F. The Reality of "Guilt" … G. The Impossibility of Contracting Marriage for Life Where Divorce is Available without Proof of an Offence … H. The Effect of the "Breakdown" Test on the Institution of Marriage … I. Divorcees as a Marriage Risk … J. The Danger of Respectability of Divorce

V. An Inhumane Attitude?

VI. Criticism of the Proposals Outlined by Professor Tenney

VII. Conclusion

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