Issues CSA - Communist Divorce

Subject: Feminist Family Law rooted in USSR Marxist Law, a 1974 US legal journal article, showing the Marxist explicitly antifamily roots "Destroy the family," as the Communist Lenin said, "and you destroy society." [1]

There are frighteningly direct parallels to Marxist Communism and our current “no-fault” destruction of family and marriage, as noted in The Atlantic Monthly from 1926;

When the Bolsheviki came into power in 1917 they regarded the family… with fierce hatred, and set out… to destroy it… [W]e had to give [the family] a good shakeup, and we did,' declared… a leading Communist. [O]ne of the first decrees of the Soviet Government abolished the term 'illegitimate children... by equalizing the legal status of all children, whether born in wedlock or out of it… The father of a child is forced to contribute to its support, usually paying the mother a third of his salary in the event of a separation… At the same time a law was passed which made divorce [very quick]… at the request of either partner in a marriage…

[Marriage became a game where it] was not… unusual… for a boy of twenty to have had three or four wives, or for a girl of the same age to have had three or four abortions. [T]he peasants… bitterly complained: 'Abortions cover our villages with shame. Formerly we did not even hear of them.'

Many women… found marriage and childbearing a profitable occupation. They formed connections with the sons of well-to-do peasants and then blackmailed the father for the support of the children. In some cases peasants have been obliged to sell [everything] in order to settle such… claims. The law has created still more confusion because… women can claim support for children born many years ago.

During the winter of 1924-1925 some of the older Communists accused the younger generation… of indulging… in loose connections; they blame the girl students for practising frequent abortions… Russian women students… [noted] that love was almost the only cheap amusement left to them and demanded that they be given… free abortions that factory women enjoy… Both in the villages and in the cities the problem of the unmarried mother has become very acute and provides a severe and annoying test of Communist theories.

…Another new point was that wife and husband would have an equal right to claim support from the other… The woman would have the right to demand support for her child even if she lived with several men during the period of conception; but, in contrast to previous practice, she or the court would choose one man who would be held responsible for the support. Commissar Kursky seemed especially proud of this point because it differed so much from the 'burgeois customs' of Europe and America.

Another speaker objected to the proposed law on the ground that some women would take advantage of its liberal provisions to form connections with wealthy men and then blackmail them for alimony.[ 2 ]
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[1] Lenin merely repeated what Socrates had said and what Friedrich Engels and Karl Marx put into words. Lenin set out to do just that, hoping that a new society -- with the State as the ultimate father -- could be constructed. With the collapse of the Soviet Union, we have seen the consequences of the experiment.

[2] The Atlantic Monthly; July 1926; The Russian Effort to Abolish Marriage; Volume 138, No. 1; page 108-114.

JOURNAL OF FAMILY LAW
University of Louisville School of Law

Volume Fourteen 1975 Number One


CONTENTS

ARTICLES

Memorial to Pearl Weiler Von Ailmen ........................................................... vii
James 1?. Merritt
The Family Court: When Properly Defined,.
It is Both Desirable and Attainable ......................................................... 1
William C. Gordon
No-Fault Divorce: Born in the Soviet Union ............................................... 31
Donald AL Bolas

COMMENTS

A Constitutional Evaluation of Statutory
and Administrative Impediments to Voluntary
Sterilization ............................................................................................ 67
College Residency Requirements, Spousal Domicile
Presumptions and the Fourteenth Amendment ..................................... 85

The Pension Reform Act of 1974: An Alternative to
Contractual Theories of Preserving Retirement
Benefits ................................................................................................. 97

BOOK REVIEWS
No-Fault Divorce ......................................................................................... 123
Public Compensation to Victims of Crime .................................................. 126
BOOKS RECEIVED ......................................................................... 130
RECENT DEVELOPMENTS.............................................................. 135
_______________________________________________________
Member, National Conference of Law Reviews
___________________________________________________________________________________
Copyright• 1975, by University of Louisville. Published quarterly at Louisville, Kentucky.
Subscription: $15.00 a year; $4.00 per copy.


NO-FAULT DIVORCE:
BORN IN THE SOVIET UNION?

Donald M. Bolas

A Survey of No-Fault Divorce Soviet Style
I. Introduction ............................................................................................... 31
II. Soviet Family Law Background ............................................................... 33
A. Early Law .............................................................................. 33
B. The Movement Toward Stability ........................................... 89
C. The 1974 Decree—The Pendulum Swings ............................ 42
III. Modern Developments in Soviet Divorce Law ........................................ 46
IV. Soviet and California No-Fault Divorce Laws Compared ..................... 50
A. Soviet Law …………............................................................................ 60
B. Similarities—Soviet and California …………..................................... 52
C. Dissimilarities ..............................…………........................................ 57
V. Conclusion .....................................…………........................................... 63


I. INTRODUCTION


The Soviet law of divorce has been like a ship on a stormy sea ever since the 1917 October Revolution. Since that time it has been battered about by the waves of revolu-tionary principle, wartime necessity and modem practical-ity. These factors have produced a Soviet legal domestic relations history that is interestingly erratic but nevertheless quite instructive in light of changes in domestic relations law currently taking place within the United States.

The current debate in the United States is focused on the relative merits and shortcomings of so-called “no-fault” divorce legislation. The pioneer of that concept in the United States is the State of California by virtue of its Family Law Act of 1969[1] which made divorce in that state a non-

*A.B., 1964, The Citadel; J..D., 1967, Dickinson School of Law; LL.M., 1974, George Washington University Law Center; Member, Pennsylvania. District of Columbia and California bars. This article was the result of LLM. Degree studies in Soviet and Comparative Law at George Washington University Law Center.

31
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adversary proceeding A few other states have subsequently enacted their own versions of no-fault divorce, and the con-troversy aroused by the concept has, among other things, caused the Rand Corporation to conduct a study of the Cali-fornia experience[2] so that further evidence may be obtained in order to more hilly assess its value.

Few members of the American legal community are aware of the fact that the Soviet Union has had, for some period of time, what can be described as a no-fault divotce legal system, And, it may be similarly observed that few Soviet lawyers[3] are aware of the fact that there is a growing trend in the United States to do away with “grounds” for divorce, thereby removing the stigma of guilt and lessening the wasteful expenditure of court time and attorney fees that such a practice cauntenances.

When the writer suggested this trend at a meeting with a group of Soviet lawyers in 1972, one of them asked, “Is it for a long time that you [California) have that system?” When informed of the January 1, 1970 effective date of the California law she remarked, “I think it is the influence of our law.”[4]

Although California legislative and judicial authorities might take exception to that observation, there are a number of similarities between Soviet and California divorce laws that suggest a “borrowing” or a remarkable coincidence.

The scope of this article is to survey the history of Soviet divorce legislation with particular emphasis on the 1968 So-viet Act. While doing so, reference will be made to analogous or comparable provisions in the California divorce law. It will be demonstrated that in spite of ideological differences, na-tions must deal with essentially similar problems relating to

33 NO-FAULT DIVORCE [VOL14 1975]



the family. How they deal with those problems has an affect on the national birth rate, juvenile delinquency, family sta-bility and a host of other factors that may be of consequence at any particular point in a nation’s history. The Soviet ex-perience affords an unparalled opportunity to study the dy-namics of domestic relations law as an instrument of na-tional policy from which we might take some lessons.


II. SOVIET FAMILY LAW & BACKGROUND

A. Early Law

The church, the mosque and the synagogue dominated family life in pre-revolutionary Russia. Under Tsarist rule, the ecclesiastical law of the various denominations within the Empire governed marriage, divorce and family responsi-bilities. Registration of births, marriages and deaths was in the hands of the parishes. For the great majority of the Tsar’s subjects, this meant that the governing law was that of the Russian Orthodox Church, and this church permitted disso-lution of a marriage on only the most limited grounds[5].

For the Bolsheviks, with their Marxist disdain for reli-gion, the influence of the ecclesiastical authorities over the family was an outrage. Since the family represented the major institution through which the traditions of the past were transmitted from generation to generation, the new re-gime had to destroy the old bourgeois notions of the family and the home. There was also a very urgent practical reason for disassociating family relations from the influence of the religious authorities. This was the frustrated desire of many individuals for release from spouses who had become instru-ments of domination, and even of tenor. Enticing such per-eons to the Bolsheviks’ cause was facilitated by a policy of liberalization of divorce.[6] In light of the above, the first task of the new regime in relation to the family was to break the power of the church and the husband. By a 1918 Decree on
_____________________________________________________________________________________



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Divorce, civil marriage was substituted for religious mar-riage, and divorce was permitted by mutual consent declared at the Registry Office, or upon the application of one spouse to the court[7]. The wife was not bound to live with her hus-band, nor to take his name, and there was complete separa-tion of property. The first two rules still apply. Birth alone was declared the basis of family ties, and all legal discrimi-nation against illegitimate children was abolished[8]. A com-panion decree on marriage also struck at ecclesiastical influence by declaring that only civil marriages concluded before secular authorities would be recognized[9].

According to Marx and Engels[10] the private property basis of the family under capitalism entails unjust inequality between the sexes because men own women as instruments for the production of legitimate offspring to whom their pri-vate property can be passed. This leads to a double standard monogamy for women and philandering for men thereby encouraging prostitution and an unfair stigmatiza-tion of women who bear children out of wedlock and of these children themselves. Early Soviet policy was intended to at-tack these evils and to transfer the care, education and main-tenance of children from home to society. This would mean the end of the family’s socialization functions, and would remove the child from the conservative atmosphere of the patriarchal family to a setting that could be entirely con-trolled by the regime. True love and a genuinely monoga-mous family would finally be achieved. A family would con-sist only of a man and a woman in love, and marriage would automatically be dissolved when love or mutual attraction ceased[11]. Though the successive stages of civilization, Engels wrote, the institution of the family has served to protect

35 NO-FAULT DIVORCE [VOL 14 1975]



the ruling class in its control of property. In the classless society of the future, the economic basis of monogamous marriage would disappear, and with it the supremacy of men, infidelity, prostitution, and the degradation of divorce
law.

The mood of the first years of the Soviet regime is well expressed in the chapter headings of the pamphlet on “Com-munism and the Family” by Alexandra Kollontai: “Workers Learn to Exist Without Family Life,” “The Dawn of Collec-tive Housekeeping,” “Individual Housekeeping Doomed,” “The Child [brought up by] the Communist State[12].” The more responsible Party leaders fought the tendency toward social and moral anarchy that accompanied the early phase of the Revolution. Lenin, in a famous quotation, attacked the theory that “in a communist society to fulfill sexual de-sires and love drives is as simple and meaningless as to drink down a glass of water.” Nevertheless, the belief that the institutions of marriage and the family would eventually dis-appear under communism was part of a deeply rooted philos-ophy, and its exponents found passages in Marx and Engels to justify it. The theory of the “withering away of the family” was in fact officially maintained until the mid-1930’s[13]. It must be understood, however, that the attack of the respon-sible leaders was directed not against the family as such, but against the family as an economic and legal imit. It was not marriage itself that would disappear but rather the formal institution of marriage. Family life would continue, but it would not entail any economic or legal responsibilities. The family would be transformed into a free association, bound only by the free will of its members[14].

After 1917 a strong political factor appeared to support the Marx-Engels view of the family: Soviet leaders began to look on the family as a conservative hindrance obstructing the new socialist education[15]. The regime’s attitude was not
36 JOURNAL OF FAMILY LAW [Vol. 14 1975]



unreasonable in light of the fact that the family was not organized by the political elite and, therefore, a prime source of potential opposition to it. Indeed, according to the find-ings of the Harvard Project on the Soviet Social System, the family group in the Stalinist era, an intimate gemeinsehaft of exclusive character, became a common refuge from and concentration of opposition to political pressure[16].

As a result of ideological heritage and political expe-diency, there appeared in the Soviet Union a trend toward disintegration of the family group which was fueled in the 1920’s by use of the law as a means of implementing new policy. The result of Lenin’s two decrees promulgated shortly after the revolution, was to allow divorce without a challenge to motive, even without the consent and knowledge of one of the marriage partners! A copy of the decree, pronounced by a single judge, was sent only to the address indicated by the petitioner[17].” Moreover, only civil marriage performed in a registry office gave rise to the rights and duties of spouses[18]. Throughout the territory under Soviet jurisdiction, marriage was turned into an empty farce[19]. The situation was wors-ened by the fact that during the first few months of Soviet rule, which were marked by universal anarchy and “revolu-tionary creativity,” many local authorities went far beyond the provisions of the decrees. An example of that situation is illustrated by a regulation issued by the Vladimir city soviet in 1918, which provided:

Every girl above the age of 18 I~ hereby declared to be state property.

Every unmarried girl who baa reached the age of 15 is obliged, on pain of a severe penalty, to register with the “free love” office of the welfare commissariat.


37 JOURNAL OF FAMILY LAW [Vol. 14 1975]


A woman registered with the “free love” office has a right to choose a male aged 19-50 as a cohabiting partner.. . . Men also
have the right to choose from women who have reached the age of 18.

Interested persons may choose a husband or wife once a month. The “free love” office is autonomous. In the interests of the state, men aged 19-50 have the right to select women registered in the office even without the consent of such women.
The offspring of such cohabitation become the property of the republic[20].


The result of the two decrees was 4,913 divorces and only 991 civil marriages in Moscow during the first seven months of 1918[21]. According to one Soviet writer, that was more a result of the fact that the people initially preferred the eccle-siastical to the civil marriage, and only made use of the new regulations in the matter of divorce[22] However plausible that explanation may be, it is a fad that in the years following the revolution there appeared a rising number of de facto unions, an understandable result of war, revolution, migra-tions and growing social mobility[23]. Reminiscent of the ideol-ogy of Marx and Engels, a movement began toward equating cohabitation with marriage. Those favoring this reform saw no differences between registered and unregistered unions and, according to Marxist theory, there was none, beyond that represented by the sheer formality of registration[24]. Fail-ure to comply with this formality, however, deprived all those who cohabited of the rights of husband and wife.


The new Family Code of 1926[25] changed that situation by equating de facto cohabitation with marriage. It has been observed, however, that although article 12 of the Code was meant to define the degree of stability of cohabitation neces-sary for a de facto union to amount to marriage, it only

38 JOURNAL OF FAMILY LAW [Vol. 14 1075]



served exemplary purposes and was unclear[26]. The result of the legislation was that precisely the same matrimonial rights and obligations flowed from a union which was not registered but evidenced by “the fact of cohabitation, com-bined with a common household. manifestation of mari-tal relations before third parties” and the like. Registration was made optional, henceforth merely evidence of the mari-tal relationship[27]. Subsequently by court decree, divorce was removed entirely from the courts and could be obtained by one party at the Registry Office, which sent the other a post-card notifying him or her of the end of the marriage[28]. Other changes instituted by the 1926 Code were in the area of ma-trimonial property and maintenance. The complete legal separation of goods had proven so unfair to the housebound mother that the new Code replaced it with community of matrimonial property[29]. Each spouse was made liable for maintenance for up to one year after the dissolution of the marriage if the other was in need and unable to earn a variation on the theme, he (or she) who does not work shall not eat[30]. By 1930, marriages could be terminated by infor-mal mutual agreement, unilateral desertion, or mere deser-tion without any announcement or agreement whatever[31].


The results of the new sexual freedom were disastrous. The Soviet press reported in the mid-thirties that promiscu-ity flourished. Stories circulated about men who had as many as 20 wives and about those who had been registered for marriage 15 times[32] Juvenile delinquency mounted, and

39 NO-FAULT DIVORCE [VOL. 14 1975]



statistical studies showed that the major source of delin-quents was the broken or inattentive home. Criminal stat-utes placed the burden upon parents to see to it that their children committed no crimes, for parents were required to pay damages and even fines, if they did[33], Additional public homes for children were established, and propaganda cam-paigns sought to persuade the public that a strong family was the most communistically inspired one[34].

The Movement Toward Stability

In the mid-1930’s, the theory that the family would dis-appear as a legal and economic entity was violently assailed as a “left deviation.”[35] The new ideological campaign went hand in hand with the legislation imposing liability on par-ents for the torts and crimes of their children, restricting abortions to cases of medical necessity, and introducing bo-nuses for mothers of large families[36]. Moreover, a change in attitude toward the abandonment of children in the event of divorce was reflected in the law
of 1936[37],requiring both parties to appear when a divorce was granted so that there might be more effective provision for the maintenance of the children. The purpose of the new law was said to be: “strug-gling with frivolous attitudes toward the family and family obligations[38]. The 1936 law went even further, and estab-lished a system of graduated fees for the registration of each successive divorce, and one’s divorce was to be noted on his passport. Although grounds for divorce were not required to be stated, and there was no prohibition against the granting of divorces, the fee system indicated the beginning of a change in attitude on the part of Soviet policy makers[39]. By 1938 it could be said by a prominent Soviet writer on the
40 NO-FAULT DIVORCE [VOL. 14 1975]


family that “the people of the U.S.S.R. are convinced that not only in a socialist, but even in a perfect communist society, nobody will be able to replace the parents - the loving father and mother.”[40] During this period the pre-Revolutionary Russian family life echoed in the Soviet idea of the sacredness of the “socialist” family[41]. During the debates on the law restricting abortions Pravda declared in 1986 that “Soviet marriage reveals the spiritual side of marriage, its moral beauty, inaccessible to capitalist society.”[42]

To what was this reversal in regime attitude attributable? It would seem that up to this point the Soviet woman was not in a much better position than she was in Tsarist days, described by a Soviet writer as “[d]eprived of the right to participate in the political life of the country, extremely limited in her choice of work, hopelessly bogged down in housekeeping, usually crushed by poverty, and having no rights even within her own family, the working woman had to drag out a miserable existence.”[43] There was also the matter of seven to nine million fatherless and homeless children, according to Russian estimates of the early twenties.[44] In derogation of marxist ideology, the state had been unable to assist single mothers, and there existed almost no children’s homes, nurseries or kindergartens.[45] Because of more pressing tasks and limited personnel and material resources the state had not been able to fulfill the conditions Engels had specified for extrafamilial facilities. Furthermore, the impact of the regime’s family policies was largely restricted to the urban areas which, before the five year plans, accounted for less than one-fifth of the population.[46] Even the limited results of regime policies were suffi-

41 NO-FAULT DIVORCE [Vol.14 1975]



ciently visible and dramatic to convince the regime that their continuation and extension would directly conflict with the program of forced-draft rapid industrialization[47]. More seriously, anti-family policies were leading to a situation where many children in the first Soviet urban generation simply lacked the kind of socializing experience to fit them intellectually or emotionally to the new society the regime was attempting to build, with its emphasis upon self-discipline and control, perseverance, steadiness, punctuality and accuracy[48]. While the family influence had been under-mined, extrafamilial agencies had failed to provide a work able substitute, leaving the child prey to the noxious and deviant influences of “the street.”[49] Finally there was the matter of the commonplace acceptance of abortion which had been legalized in l92O[50]. Indeed, some Western scholars estimated that in urban areas the annual number of abor-tions exceeded that of live births.[51]


No doubt this deplorable state of events demanded at least the action that was taken with respect to the divorce Law. A Soviet writer described the purpose of the 1936 amendment as “ . . . combating the thoughtless attitude to the Family and Family duties . . . [and curbing] cavalier divorces.”[52] And the same writer stated: “Yet the divorce proceedings in force prior to July 8, 1944, fell short of what society has the right to demand of every Soviet citizen in such a matter as dissolution of marriage. Divorce was too easy, and this was in growing conflict with the task of family building.”[53] Nevertheless, the June, 1986 amendment was a step in the right direction with its system of recording di-vorces in the registry office, requiring notation in passports and introducing fees that increased with each successive di--
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vorce[54]. Evidencing the impact of this new direction is the fact that divorces registered in Moscow dropped from 2,214 in June 1936 to 215 in July of the same year.[55]

B. The 1944 Decree—The Pendulum Swings

Soviet laws have never laid down a list of grounds for divorce[56]. Grounds have been unnecessary; the will of the parties was the deciding factor. However since 1944, accord-ing to the intent (but not the text) of the Decree, mutual consent and a fortiori, the wishes of one spouse, are not suffi-cient grounds[57]. The Decree provisions considerably limited access to divorce: they restricted grounds for divorce, made the procedure more difficult, raised the costs and required that a press announcement precede each divorce suit[58].” Breakdown of the marriage was introduced as the all- embracing ground for divorce, and it became the court’s duty to delve into the causes of marital failure and the degree and permanency of the break[59]. Soviet law abandoned the enu-meration of grounds for and bars to divorce[60].” In the Soviet view, enumeration of grounds for divorce “limits the possi-bility of dissolving marriage when that is really imperative and hinders the most fitting and correct judgments. Life is so complex and diverse that what may be ground for divorce in one case is no such thing in another.” [61] It has been ob-served, however, that after the 1944 law was enacted instruc-tions were sent to the judges by the then People’s Commis-sariat of Justice, stating typical conditions under which di-vorces should be granted, such as adultery, desertion, cru-elty, and the like.[62] In Berman’s view, from the reports ap-pearing in Soviet law journals and other legal literature, it
43 NO-FAULT DIVORCE [Vol. 14 1975]



is possible to detect the emergence of a judge-made tradition of Divorce law, similar to the growth of certain phases of English common law[63]. The general divorce criterion of “ne-cessity” was defined by the U.S.S.R Supreme Court on Sep-tember 16, 1949, as follows:

[T]he court dissolves a marriage when, proceeding from the concrete circumstances of the case, it is satisfied that the initia-tion of divorce proceedings was well considered, that continua-tion of the marriage clashes with the principles of communist morality and creates abnormal conditions for family life arid the upbringing of children.[64]

By application to various types of cases, the general principle began developing into particular rules and doctrines. Mere incompatibility might not serve as a ground for divorce when the parties had been mated for eight years and have three children, though in a case of more recent marriage where there were no children a different result might be reached.[65]

In a further effort to strengthen legalized marriage, the 1944 Decree abolished de facto marriages.[66] Moreover, a harsh indirect sanction against extramarital sex relations was introduced which required the birth certificates of children born of de facto unions, as well as those of all other children born out of wedlock, to carry a dash instead of the father’s name.[67] Since this provision was retroactive, it also applied to children born of de facto marriages before the decree, unless the paternity of their fathers had been regis-tered at their birth.[68] This stigma could be stricken only by subsequent marriage of the parents, since the new law abol-ished the establishment of paternity by court order or by acknowledgment.[69] Thus, in the twenty-seventh year of its existence, the Soviet state succeeded in reviving a social cat--

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egory, namely that of illegitimate children, against whose existence the Bolshevik leaders themselves had waged a re-lentless struggle before the Revolution.[70] The material and legal position of these children was now even worse than under the Tsars; the decree required an unmarried mother to be content with a meager state allowance of 100 rubles per month for one child. 150 rubles for two, and 200 rubles for three, payable until the child’s twelfth birthday. These al-lowances were only granted for children born after the de-cree’s promulgation and were slashed by one half a mere three years and four months later.[71]

The 1944 Decree went so far in its efforts to encourage large families that it increased the special taxes on single persons and persons with small families.[72]

Public sentiment, expressed more freely after Stalin’s death than before, indicated that the changes bad gone too far. One Soviet writer summed it up this way:

The decree of 1944 was certainly motivated by a desire to bolster legalized marriage. However, morally and socially justifiable as it may seem, this desire did in fact reflect the egoism of a ruling privileged class. The decree’s exhortation to women desirous of having children to get married amounted to nothing less than mockery of such women for whom marriage was impossible in view of the huge surplus of women over men — approximately 20,000,00 — resulting from Soviet war losses.[73]

The effectiveness of the new restrictions varied. Stigma-tizing illegitimate children appears to have been of dubious worth in holding down illicit sex activity and probably con-tributed to an increase of abortions, illegal since 1936 but often employed.[74] On the other hand, the change in divorce law helped produce a significant decline of the divorce rate[75].
45 NO-FAULT DIVORCE [Vol 14 1975]



The complexity of the new divorce procedure, particularly the requirement of going through two different courts, and the increased costs precluded divorce for a great number of broken marriages. In fact, the large number of illegitimate children — estimated at about six million in the early 1960’s - seemed to reflect the extent of desertion and concubinage as substitutes for relatively unobtainable divorce and remar-riage[76].

The Soviet regime’s decisive action in 1944 was taken for reasons other than a sentimental interest in preserving the family. The Soviet government was anxious to make good the heavy war casualties it had sustained and Soviet leaders assumed that their goal of increased births would be fur-thered by strengthening the family.[77] Moreover, since the mid-thirties there had been a general political and social retreat from original communist ideals which, to a great ex-tent, was brought about by Stalin’s ruthless drive toward maximizing industrial and military growth.[78] Since the drive required iron discipline and new incentives that were incom-patible with original ideals, the old ideals were abandoned without acknowledgment of the abandonment.

III. Modern Developments in Soviet Divorce Law

After Stalin’s death, Soviet family law became more

46 JOURNAL OF FAMILY LAW [Vol. 14 1975]



liberal and a moderating influence became apparent. A Su-preme Soviet decree of February 10, 1964, exempted widows whose husbands had been killed or missing during the war, as well as citizens not gainfully employed, from the special taxes imposed on single persons and persons with small fam-ilies.[79] On November 11, 1955, abortion was legalized in view of the increasing number of illegal abortions, many of which ended tragically.[80] Articles appeared in the Soviet press pro-claiming that divorce law had “fallen behind the moral de-velopment of our [Soviet] society” typically stated:

In our view, such requirements as obligatory publication of the divorce notice and the requirement that both parties agree to the divorce do not help to strengthen marriage but simply give rise to falsehood and hypocrisy in marital and family relations. It is wrong to think that all divorce is immoral. There are situations in which divorce is more moral than preservation of the mar-riage.[81]

By the Decree of December 15, 1965,[82] both the conciliatory function and the divorce power were vested in the same court and the awkward requirement of a press announcement of the impending divorce suit was eliminated. Although the relief provided by this Decree may not appear very signifi-cant to a Westerner at first blush, it was of considerable import to Soviet citizens with respect to time consumption and inconvenience. Consider, for example, that in the matter of publication each city only had one newspaper that printed such divorce notices, except Moscow where there were two.[83] Because of that limited medium, publication could be de-layed for well over a year.[84] Since the notice required publica-tion after the conciliation court hearings had failed, the cou--
47 No- Fault Divorce [ Vol. 14 1975]



ple had to go through a second court procedure which again investigated the grounds for divorce in detail.[85]

The most recent and sweeping changes in Soviet divorce law occurred in 1968 when the long promised and awaited fundamental principles came into being. By way of back-ground, Article 14 of the 1936 Constitution of the U.S.S.R. provides that it is for the legislative authorities of the U.S.S.R. as a whole to legislate on the fundamental princi-ples applying throughout the Union to marriage, the family and guardianship. Each Union Republic, however, may enact its own code of laws applying these fundamental principles in detail.[86] Until June 27, 1968, no fundamental princi-ples had been enacted, and the only general all-Union legis-lation specifically dealing with family law was that passed on July 8, 1944.[87] In the meantime the law that was adminis-tered with regard to marriage and family was embodied in the codes of the various Republics. Of these the Family Code of the R.S.F.S.R., first enacted in 1926, was by far the most important. Not only does the IVS.F.S.R. itself comprise about half the population and nearly three quarters of the area of the entire U.S.S.R., but its Family Code was ex-tended to apply to the Republic of Kazakhstan and Khirgi-zia, and after 1945 also to the Baltic Republics of Lithuania, Latvia and Esthonia.[88] The R.S.F.S.R. Code also served as the model for substantially similar codes in seven other Republics.[89]

Ever since the partial censorship thaw that followed Stalin’s death in 1953, the law of 1944 has been under attack. Proposals have been made for its modification and for the enactment of all-Union fundamental principles.[90] Sporadic and piecemeal reforms referred to earlier had been made

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since 1954. However, the deferral for five years of publication of draft Fundamental Principles evidenced the deep cleav-age of opinion that existed on the subject within the Soviet hierarchy.[91] In the debate that preceded the draft of the new law, one Soviet writer viewed the most acute problems as being the divorce procedure and the legal status of illegiti-mate children.[92] She noted the positions taken by Soviet legal authorities on the divorce question. Professor G. Sver-dlov, an expert in family law, was of the opinion that the granting of divorces should remain the privilege of the courts, although he felt that divorce actions should be de-cided by the lower court.[93] The rationale of his position was that the state should not act merely as an impassive registrar of the breakup of the family. The opponents of court divorces proposed that divorce actions be processed by the civil regis-trar offices. A compromise proposal was that the court only hear those divorce cases in which the husband and wife did not agree on the future plans for their children.[94]

The status of illegitimate children was a problem that sprang from the 1944 Decree’s objective of increasing the birth rate as much and as quickly as possible. The most significant manifestation of the objective was that the out-numbered men were encouraged not only to increase their legitimate families, but also to father children upon the “sur-plus” unmarried women. The men were absolutely absolved from any personal or financial responsibility for such chil-dren.[95] Mothers of extramarital children had been prohibited from naming the father or claiming maintenance from him for the child. Instead, they were to receive a small monthly grant from the State, or they could place the child free of charge in a children’s home from which, it was said, they could remove the child when they wished.[96] Some partici-

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pants in the public debate insisted that the existing laws relating to illegitimate children should be abolished, and that the legal norms of the first years of Soviet power should be restored. This would have given children equal rights ir-respective of whether theft parents’ marriage had been regis-tered. Other persons suggested that the property status of illegitimate children remain unchanged, but that the chil-dren be allowed to use their fathers’ names. Many proposals favored restoration of the right of mothers to bring court actions for the establishment of their children’s paternity. These proposals would provide relief, including the exaction of alimony, regardless of whether the marriage was regis-tered.[97]

The Principles of Legislation of the U.S.S.R. and the Union Republics on Marriage and the Family of July 3, 1963,[98] inaugurated many sweeping changes in Soviet family law including changes in the status of illegitimate children and particularly changes in the divorce laws. As to the for-mer, the new legislation eliminated stigmatizing dashes on the birth certificates of illegitimate children.[99] The principles also introduced establishment of paternity by “joint applica-tion” of both parents, and, to a very limited extent, by court order, which may be issued only on the basis of “evidence that reliably establishes” the father’s “own acknowledgment of paternity.”[100] Adequate evidence of acknowledgment ex-ists, for instance, if the father had cohabited and maintained a common household with the mother before the child’s birth or had joined her in rearing or supporting the child.

With respect to divorce, the new Soviet legislation ap-pears to be extremely progressive. Although it is a great de-parture from recent Soviet divorce law in many respects, the fundamental principles embody a well-conceived, balanced approach to the question of the state’s function in relation to marital dissolution. Prior Soviet laws in this field were


50 JOURNAL OF FAMILY LA W [Vol. 14 1975]



characterized by extreme swings of liberality end obstruc-tionism. The new legislation is somewhere between these two, satisfying the state policy objectives of marital stabil-ity and order while providing a practical mechanism for sep-arating those couples that no longer wish to be joined to-gether. How this new Soviet divorce legislation will ultimately be evaluated requires further time and experience with it. There is nothing in Soviet sources to suggest that it is inadequate. In fact, when compared with the modern trend in American divorce law it may well be observed that the Soviet divorce law is a fitting model for the “new look” in domestic relations.


IV. SOVIET AND CALIFORNIA NO-FAULT DIVORCE LAWS

COMPARED

A. Soviet Law

A law “Approving the Principles of Legislation of the USSR and the Union Republic on Marriage and the Family” was adopted at the meeting of the USSR Supreme Soviet.[101]

In his report to the meeting of the USSR Supreme So-viet, the Chairman of the Committee on Legislative Propos-als of the Soviet Union, emphasized that the draft of the Principles “reflected the continuing concern of the Com-munist Party and the Soviet State for the strengthening of the family and that its adoption as USSR-wide law would promote further reinforcement of the Soviet family and the upbringing of children in the spirit of the high moral princi-ples of communist society.[102]

As finally exacted, Article 14 of the Fundamental Prin-ciples, relating to “termination of marriage,” represents the major triumph of the reformers in obtaining amendments of the draft Principles as originally published.[103] They have suc-ceeded in securing divorce by simple registration at register offices (Zags) in cases of divorce by mutual agreement where

51 No-FAULT DIVORCE [ Vol. 14 1975]



there are no minor children, a reform that has been Long canvassed.[104] The new Fundamental Principles go further in providing that such divorce by simple registration, and not through a court, will also be available in uncontested cases where there has been a legal declaration that a spouse is missing and cannot be traced, or has been found of unsound mind or an imbecile, or where a spouse has been sentenced to deprivation of liberty for not less than three years because of criminal offenses. Such divorce through simple registra-don will become effective and the certificate of divorce will be issued, however, only after the expiry of three months from the date of application. Divorce may be obtained from a court in all the above cases where the other spouse contests the divorce. In other cases the court may grant a divorce on the application of either spouse, except that a husband may not without his wife’s consent apply for dissolution of their marriage during her pregnancy or for one year after the birth of her child. The sole ground for divorce granted by a court is that the court shall be satisfied that tVrther common life of the spouses and the preservation of their family have be-come impossible. For comparison purposes, Article 14 is hereinafter set forth in its entirety.

BASIC PRINCIPLES OF LEGISLATION IN THE USSR AND UNION REPUBLICS ON MARRIAGE AND THE FAMILY

Article 14

Termination of marriage

A marriage is terminated in consequence of the death, or a court decision on the recognition of the death, of either of the partners to the marriage.

In the lifetime of the two partners, a marriage may be dis-solved through divorce, by application of either or both of the
partners.

A marriage is dissolved by a court. The court takes steps to reconcile the partners to a marriage.

A marriage is dissolved if it is established by a court of law


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that the further joint life of the partners and the preservation of their family have become impossible.

A husband is not entitled, without the consent of his wife, to apply for dissolution of their marriage during the pregnancy of the wife or in the course of one year after the birth of a child.

When dissolving a marriage, the court, when necessary, takes measures to protect the interests of children under age and of a disabled wife.

A husband and wife who do not have children under age may dissolve a marriage, by mutual consent, at a Registry Office. In these cases the divorce is registered and certificates on the dissolu-tion of the marriage are handed out three months after the hus-band and wife have applied for a divorce.

The Registry Office also dissolves marriages in the case of persons: Whose whereabouts are unknown, according to the rules established by law;

Who are incapacitated as a result of disease or imbecility, according to the rules established by laws;

Who are sentenced for crimes with terms of imprisonment not less than three years;

Where disagreements arise over the dissolution of a marriage, these are settled by a court.

A spouse who takes the surname of the other spouse when entering into marriage has the right, after the dissolution of the marriage, to retain his surname or, on request, to revert to the pre- marriage surname.

B. Similarities—Soviet and California

Similarity of basic terminology is the most apparent common characteristic shared by the Soviet and California domestic relations statutes. The term “divorce” does not exist in the official terminology of either system. Soviet law has consistently officially sanctioned the use of the term “dissolution of marriage” rather than “divorce” although Soviet commentators appear sometimes to use the latter as a shorthand term in contradistinction to marriage,[105] and the new statute so employs it in that manner. California, on the other hand, like other states had been using the term “di-

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vorce” before passage of its new act with all the common law adversary connotations that term implied. Significantly, the Family Law Act of 1969 revolutionized the language of prac-tice in the domestic relations field in California. Terminol-ogy with connotations of fault and adversary proceedings was discarded. Most notably, divorce became “dissolution of marriage.”[106]

This seemingly superficial similarity is indicative of the more fundamental, underlying compatibility of both systems in what may be regarded as a no-fault principle in deciding whether dissolution is appropriate. Accordingly, the proceeding is commenced by an application in the Soviet sys-tem and a petition in the California procedure. Plaintiff and defendant terminology is conspicuously absent from both statutes. The heart of the no-fault concept, however, lies in the grounds for dissolution of marriage. In the Soviet system necessity is the sole ground that has been employed as set forth in article 26 of the Decree of July 8, 1944.[107] The Soviet system has never formally stated traditional gounds for dis-solution such as adultery, incompatibility and the host of others employed in most of the American states. The new Soviet legislation states that a marriage shall be dissolved when a court finds that “the further joint life of the spouses and the preservation of their family have become impossi-ble.” By comparison, the only ground for dissolution in Cali-fornia is the existence of “irreconcilable differences which have caused an irremediable breakdown of the marriage.”[108] It has been observed by the California State Bar that by adopting that ground the legislature eliminated the hypoc-risy and perjury encouraged by former law and destroyed the effect of numerous cases interpreting the various fault grounds.[109] Thus it may be seen that in both the Soviet and California systems the concern is not whether any technical

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marital infractions, such as adultery, had been committed but whether the marriage is viable.

In line with the policy of both states to preserve mar-riage where possible, both systems employ conciliation courts. In California, however, only 15 of the 58 counties have conciliation courts. Prior to 1966 the conciliation pro-cess in the Soviet Union was a two step process utilizing two separate forums. That is the situation in California today. Under present Soviet practices, however, the same court that performs the conciliation function also has dissolution juris-diction. Success with conciliation practice does not appear to be similar. With respect to the effectiveness of reconcilia-tion procedures, one Soviet commentator reported that in two provinces of the Ukraine the courts succeeded in recon-ciling the spouses in 54 and 56 percent of all dissolution cases.[110] More recent information suggests, however, that court conciliatory activities have been ineffective and that the earlier Ukraine figures were inaccurate.

In California during 1970 there were 138,953 dissolution petitions filed.[111] Although there are not any statewide fig- tires available as to the number of reconciliations attributa-ble to conciliation courts for that year[112], Los Angeles County figures are instructive in light of that county’s large size and significant divorce activity. Of the 45,681 dissolution peti-tions filed in 1970, Los Angeles County credits its concilia-tion court system with 13,000 reconciliations.[113] If these fig-ures are indicative of the experience of other counties with

55 NO-FAULT DIVORCE [ Vol.14 1975]

conciliation court systems, it would appear that California experienced nearly a 30 per cent reconciliation rate in 1970.

Since 1926, the Soviet Union has had a system of com-munity property with respect to marital acquisitions. Cali-fornia also employs community property law, which stems from its civil law heritage. Generally the two systems appear to be similar with their provisions for community property being that property acquired after marriage, with exceptions for gifts, bequests and the like received by an individual spouse—these are the separate property of that spouse. The principal difference, until recently, was that the assets ac-quired during marriage by the Soviet couple become their joint property, with equal ownership and equal powers of management vested in the two.[114] By contrast, it has been observed that this arrangement would be impracticable in countries where economic systems are based on the existence of private investment property.[115] Nevertheless, in 1973 Cali-fornia dramatically revised its community property laws[116] in accordance with a growing trend in the community property states.[117] The basic principle of the new provision, which fully took effect on January 1, 1975, is that each spouse has equal management and control over the community property of the marriage. An exception to the general rule provides[118] that a spouse who is operating or managing a business which is community personal property has the sole management and control of the business. With the requirement of good faith imposed on the spouse managing a business the legisla-ture sought to avoid unilateral misappropriation of com-munity property by requiring that only the amount of com-

56 JOURNAL OF FAMILY LAW [Vol. 14 1975]



munity personal property reasonably necessary to carry on the business be allocated to that enterprise. Thus it seems that also in this particular the California law is very similar to Soviet domestic relations law, while recognizing and rea-sonably dealing with the practical problems associated with the private investment capital aspects of the free enterprise system.

Since California previously vested in the husband exclu-sive management and control of the community property, it may be argued that California has finally “caught up” with the Soviet system with regard to recognizing the wisdom of the Engelian approach to equality of the sexes. Viewed strictly from the standpoint of the letter of the law currently in effect in both systems, there is ample support for such an argument. The laws of both systems in this area would sat-isfy even the most ardent proponents of equal treatment for the sexes. In practice, however, very few western women, undoubtedly, would consider exchanging places with a So-viet woman since the philosophical basis of equality of the sexes gives Soviet women responsibilities incompatible with current western customs and mores. It is not uncommon, for example, to see Soviet women operating heavy equipment, laying bricks and performing other heavy manual labor[119]— all in the name of equality of the sexes. Nevertheless, com-parative lawyers recognize the Soviet matrimonial system of community of accession as a system which, with numerous individual variations, exists in many jurisdictions and is con-sidered by many jurists to correspond more than any other system with the conception of marriage held in modem times.[120] To this extent Soviet law and practice are in accord with much progressive thinking in western countries.[121] Re-
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cent California legislative changes demonstrate, moreover, the extent to which this modern trend is influencing American law.

C. Dissimilarities

In light of the foregoing major similarities, the differ-ences are even more intriguing from the standpoint of possible mutual reception of each other’s best features. Before proceeding too far into the depths of such speculation, how-ever, one is cautioned that an ideological chasm separates the two systems and the differences, beyond the similarities noted, have a distinctively ideological flavor and basis in many particulars. Some are quite subtle. By way of illustration, in the Soviet view even the physical location of the domestic relations law is significant. Since the establish-ment of Soviet law, family law has been an independent branch of it and has never been regarded as a part of civil law.[122] It is said that this is due to the fact that marriage is regarded as a personal alliance based on love and respect and not as an alliance of properties.[123] A Soviet writer cites in support of that supposition a poll of prospective newly-weds taken in Leningrad in the course of two months in 1962. Altogether 500 couples were polled at the city’s civil registry office, and additional data from another 300 couples was collected. Of those polled, 21 percent were workers, 20 per-cent students. 10 percent engineers and technicians, and the rest were white-collar workers, doctors, workers in science and the arts and military men. Only 5 percent of those polled either directly or indirectly mentioned the factor of property as a major motive for contracting marriage. For the over-whelming majority, it did not play any substantial role. Most of those polled considered non-property factors—like love, trust, equality and respect of the spouses—as being the main conditions for a happy marriage.[124] With ideologi-cally seated reasons such as those in this example, reception

58 JOURNAL OF FAMILY LAW [Vol. 14 1975]



of Soviet law must be considered in a most critical and selec-tive fashion.

The mast significant difference between the two systems is the fact that under Article 14 the law allows consensual dissolution by registration without judicial process, if the parties are without children. It would appear that by so doing, the Soviets have made a policy judgment that there is not sufficient state interest to justify judicial intervention where the parties agree to dissolution and the welfare of children is not a factor. To some extent this signals a return to the early years of Soviet rule where the state, by not taking an active role in dissolutions, become a passive registrar of marital break-up. On the other hand, it may well be a frank recognition of the old Russian proverb that “There is more to a good marriage than two pairs of legs in a bed,[125] and that there is little even the Soviet State can do to reconcile “irreconcilable” couples. That is not to say, however, that the Soviets have not tried to do so. As distinguished from California procedure, Soviet practice prior to the new law required a couple to go through the conciliation process. Be-fore 1966 it was even a two step process with a time consum-ing publication that separated the two steps. Did this dis-courage couples striving to break the marital bonds? It would appear not. It was asserted even in the early 1960’s that in practice mutual consent was sufficient to obtain a dissolu-tion and that anyone determined enough could ultimately succeed.[126] This assertion seems supported by the fact that over 97 percent of all dissolution petitions heard in the U.S.S.R. up to that time were eventually granted.[127] Moreo-ver, this trend probably dates back to the mid-1940’s as evi-denced by a Decree of the Plenum of the Supreme Court of the U.S.S.R. chastising the courts for their laxity in the ad-ministration of dissolutions. That decree states in part:

59 NO-FAULT DIVORCE [Vol. 14 1975]



Judicial practice in cases involving dissolution of marriage demonstrates that many judicial agencies exhibit an insufficient un-derstanding of the political significance of the edict of the Pre-sidium of the Supreme Soviet of the USSR of July 8, 1944, and are committing serious errors in the consideration of such cases.

In violation of such Edict, courts have in a number of instances unjustifiably satisfied suits to dissolve a marriage for reasons which contradict the principles of communist morality. Thus, in the case of Neimans, husband and wife, the Supreme Court of the R.S.F.S.R. gave as the reason for the necessity of a divorce the fact that the plaintiff [husband] had terminated his conjugal life with the defendant [wife] and was living with another woman. In the case of the Diners, husband and wife, the Supreme Court of the Ukrainian S.S.R. deemed the prolonged service of the plaintiff [husband] in the ranks of the Soviet Army during the war to be a ground for dissolution of the marriage, regarding this circumstance to be a do facto termination of the marriage. The Supreme Court of the Kazakh S.S.R. in one of its cases deemed the circumstance of a conflict between the plaintiff [husband] end his wife involving [their] attitude toward relatives to be a ground for dissolution of marriage.[128]

Melvin Belli observed on a visit to the Soviet Union in early 1961, that a woman had nearly a 100 percent chance of hav-ing her dissolution application acted upon favorably.[129] He noted that Soviet judges were of the opinion that a woman usually has better reasons for a dissolution of marriage. The man’s chances are appreciably lower. His reasons do not always fall in the category of necessity. However, Belli also opined that divorce in the Soviet Union was not as easy to secure at that time as it was prior to the 1944 Decree.[130] The favoritism, if in fact it did exist, would seemingly be further evidence of the ideological favoritism shown women in the Soviet Union. According to that observation one would be led to conclude that most of the relatively few divorce peti-tions denied in the Soviet Union at that time were those of men. It may very well be now that Soviet policy makers have merely decided to make the law conform with reality where the couples agree to dissolution and children are not in-

60 JOURNAL OF FAMILY LAW [Vol. 14 1975]



volved. Even in this instance the law imposes a ninety day waiting period before a certificate of dissolution will issue. Presumably this will give parties to a hastily contrived disso-lution the opportunity to reconcile.

Article 14 states the court should “take steps to recon-cile the spouses.” The court may, in fact, postpone the hear-ing for a period up to six months. This provision differs from California procedure because according to California prac-tice either party may request a conciliation court hearing after a dissolution action has been commenced. Both parties must agree to it, however, or it will not take place. If at the dissolution hearing it appears that there is a reasonable pos-sibility of reconciliation, the court must continue the pro-ceeding for a period not to exceed 30 days.[131] Since concilia-tion proceedings were required in all cases prior to the 1968 Soviet legislation, that may account for the fact that Soviet conciliation courts have done so poorly according to some sources. Soviet law now requires only more promising cases to go through the conciliation procedure; California makes it optional, but only with the consent of both parties.

Although it has been shown that the Soviet and Califor-nia grounds and philosophy of divorce appear very similar, their implementation is not quite as compatible. According to the intent of the 1944 Decree as noted earlier even mutual consent was not a sufficient ground under the “necessity” standard. Accordingly, dissolution decrees had been refused where the allegation was not sufficient, such as, that the wife did not know how to cook or do the washing; where marital lapses had been condoned; and where the petitioner sought dissolution on the basis of his own adultery and rejected the forgiveness of his wife.[132] In California such seemingly spu-rious reasons would not preclude the granting of a divorce. The reason is that the California legislature intended to pro-vide a simple, straightforward ground uncomplicated by numerous criteria and requiring only a simple finding by a subjective test.[133] The statutory standard is satisfied when a


61 NO-FAULT DIVORCE [Vol. 14 1975]



party or witness testifies to the conclusion that irreconcilable differences causing the irremediable breakdown of the mar-riage exist. If the court has questions concerning reconcilia-tion, it may inquire more deeply. In practice, additional in-quiry is rare, arising only when the court is alerted by reason of the testimony or demeanor of the party.[134] There is no defense to a California dissolution action. If the petitioner desires a dissolution he or she will receive it irrespective of the wishes or actions of the other spouse.

An interesting portion of Article 14 is the one prohibiting the husband’s right to institute a dissolution action without his wife’s consent during her pregnancy and for one year after the birth of a child. This provision is further evidence of the protective attitude that the Soviets display toward women. Although it is questionable as to how much value a husband may be to a wife, and possible children, under the statutory circumstances, the option nevertheless belongs to the wife. The increased likelihood of provision for material support to the wife and freedom from the emotional trauma of dissolution would seem to be the primary benefits a Soviet wife would expect if she elected to enforce the dissolution “mora-torium.” No doubt the ingredients of Soviet policy formulation included concern about the possibility of mothers and mothers-to-be who might be unable to properly care for themselves and consequently, become a burden to other par-‘~
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ties. Whatever the policy reasons, the effect of the provision appears noble, even commendable. If such a provision were to be considered for reception into American law, it would not be without difficulty. Provision would have to be made for temporary injunctive relief so that community property would not be dissipated. Ordinarily such relief can only be granted after the commencement of the dissolution action. It would seem, however, that such an idea could be embod-ied in American legislation, with appropriate modification, if it were deemed socially desirable to do so. In light of the Womens’ Liberation Movement in the United States in recent years, it is surprising such legislation has not been requested. The fact that it has not been articulated as a matter of significance to date may indicate that women do not feel entitled to such, a provision, or that they consider it of minimal value. More fundamentally, would not such spe-cial consideration for wives actually be inconsistent with, and do violence to, the principle of equality of the sexes? The potential for abuse afforded by such a provision, moreover, in a property-oriented society such as the United States should not be minimized. A pregnant wife or one who re-cently gave birth might withhold consent when she knows her husband is anxious or even desperate for a dissolution, only in the hope of thereby securing a better property settlement. In any event, however, the matter may merit further consideration.

In general, the Soviet Union tends to minimize and downplay the commonality of its institutions and laws as part of its portrayal of the Soviet legal system as new social-ist law without bourgeois (capitalist) vestiges.[135] The Soviets discount commonality by relying on the dichotomy of form and substance; namely, similarities are formal, not substan-tive. In essence, this is the new wine, old bottle approach attributed to Stalin.[136] In fact, however, the Soviet system is basically a continental law system with an overlay of the new institutions or changes in traditional institutions that result


63 NO-FAULT DIVORCE [Vol. 14 1975]



from party rule, socialism and national planning.[137] Many Soviet institutions, such as divorce, are quite recognizable and operate in traditional ways. To a great extent, this results from the fact that there are various problems and needs of government common to all systems and there are practical considerations that militate against revolutionary solutions. The Soviets learned that lesson most bitterly in the family law area. Divorce in the Soviet Union was born in the womb of revolutionary principle—with virtually catastrophic consequences!

Time, experience and a new approach have brought Soviet divorce law through the tumult and extremism of earlier years to a more stable and mature stage of develop-ment. In spite of elitist Soviet claims[138] in the area of divorce, the present state of the law in this area in the Soviet Union and California suggest that both systems have arrived at substantially similar solutions because of practical necess-ity.

V. Conclusion

Soviet divorce law is now in calmer waters than at any other time in its turbulent history. Ever since coming to power, Soviet policy makers have been struggling with ideol-ogy, revolutionary principle and practicality to cope with the very critical matter of dealing with the family unit. At first, the Soviets viewed the family as antagonistic to the noble goals of the regime, and indeed the family was an isolated unit of resistance. When easy-divorce legislation attempted to destroy the family and cleanse it of ecclesiastical influ-ence, the adverse effects were felt most severely in the large cities. Nevertheless, Engeian ideals in the form of emanci-pating women had a disastrous overall impact on the nation as a whole as evidenced by a sharp rise in illegitimate births,

64/65 JOURNAL OF FAMILY LAW [Vol. 14 1975]


abortions and juvenile delinquency. It became apparent to the Soviet policy makers of the mid-thirties that the New Soviet Man of tomorrow would never exist if children did not receive proper discipline and education. State institutions proved inadequate for such a Herculean task and conse-quently policy decisions were made to restore the family as a means of providing stability. It was in the state interest to make divorce more difficult.

Near the end of the war legislation was enacted with the intention of making divorce more difficult. It was felt that this would also help to increase the birth rate and thereby replace the heavy war casualties the Soviet Union had sus-tained. At the same time, the domestic relations law encour-aged the male population to “father” children among the 20 million unmarried females.

In practice divorce may not have been as difficult to obtain as the Soviet policy makers had hoped it would be. In any event it was not easy, it was time consuming and it became expensive. After Stalin’s death, liberalizing influ-ences began to surface and eventually progressive changes took place. It was not until 1966, however, that the cumber-some two step divorce procedure was scrapped in favor of a more streamlined approach. But it is in the 1968 divorce legislation that the Soviet Union has made its best effort in this area of the law.

Without sacrificing stability the Soviets have squarely faced reality by allowing extrajudicial no-fault divorce in situations where there is a mutually consenting couple and no children. In other cases, the no-fault principle is espoused in that Soviet law does not, nor ever did have, specified “grounds” for divorce. When looking closely at the system, however, it becomes apparent that a reason for divorce has been required since 1944 and the court must be convinced of its sufficiency. Divorces have been denied in the Soviet Union and technically can still be denied under the new law if the court is so inclined. In that respect Soviet no-fault divorce differs from the new trend of no-fault divorce evi-denced by the 1969 California legislation.

With respect to the elimination of fault and grounds for divorce, both systems have displayed remarkable progress by recognizing that the adversary system has no place in the area of domestic relations. Most certainly, there still remains an adversary climate in both systems with regard to the issues of support, custody and property rights. Most impor-tantly, however, in California and, to a lesser extent, the Soviet Union, unhappily married couples may expeditiously shed their troublesome mates and begin anew. The com-munity property laws of both systems make the dissolution of the marriage even less burdensome than it might other-wise be. Without question, both are progressive.

Although there are many similarities between the two systems, there does not appear to be any basis for assuming that either received the law of the other in any way. To the contrary, the Soviet divorce law and that of California have very dissimilar histories. It is possible that they have inde-pendently arrived at substantially the same philosophical point regarding divorce because of the Civil Law heritage of both systems and the practical pressures of modern life that -reject the concept that two antagonistic spouses should be forced to remain in the same marital bed.

------------------------------------------------------------------------
[1] CAL. Civ Code §§ 4350 et. seq. (West Supp. 1974).

2 Interview with Arthur Karapka, Office of the Director, RAND Corporation, in Washington, 0. C., November 13, 1973.
[3] Tape-recorded interview with Oskar P. Ukhachev, Vice-President of Moscow lniurcolleguia and twelve other Soviet lawyers and judges, in Moscow, Union of the Soviet Socialist Republics, September 11, 1972 [hereinafter cited as Likhachev interview].

[4] Id.

[5] Berman, Soviet Family Law in the Light of Russian History and Marxian Theory, 56 YALE L.J. 26 (1946).

[6] J. Hazard &I. Shapirp, The Soviet Legal System 99 (1962) [hereinafter cited as J. Hazard].

[7] Rudden, The Family, 14 Problems of Communism 106 (1965) [hereinafter cited as Rudden]. Citing SOBRANIE UZAK . . .RSFSR 1917-18, No. 10, Art. 152; No. 11, Art. 160; No. 76-71, Art. 818. See also G. Sverdlov, Sovetskoe Semeinoe Pravo (Soviet Family Law) Moscow, Gosiurizdat, 62-10 (1958).

[8] Rudden, supra note 7, at 106

[9] J. HAZARD, supra note 6, at 100.

[10] A. Kassof, Propects For Soviet Society 387, 388 (1965) [hereinafter cited as A. Kassof.]

[11] Id.

[12] H. Berman, Justice In The U.S.S.R. 330 (1963) [hereinafter cited as H. Berman.]

[13] Id. at 33041.

[14] Id. at 831.

[15] Gorecki, Communist Family Pattern; Law As An Implement of Change, U. Ill. L.F. 121, 122.23 (1972) [hereinafter cited as Gorecki].

[16] Id. citing B. Daunt, A. Inn. & C. KwcrcaoaN, How Tim Sovrr Sysmu Wean 59-80, 107-00 (1964).

[17] Mironenko, The Evolution of Soviet Family Law, Itwmtn Foa Tim Stuny or ‘in U.S.S.R Buum, 8:3340 at 33 (May 1966) thereinafter cited as Mire-nenkol.

[18] Gorecki, supm note 15, at 123 citing RS.F.S.R. 1918 SOERANIE UZAK (Collection of Laws) Not 76, hf 818.

[19] Mironenko, supra note 17, at 33.

[20] Mironenko, supra note 17, at 34 citing A. Khartsev, Marriage and the Familyin the U.S.S.R. 139 (1964)

[21] Mirorienko, supm note 11, at 34 atmg 0. Svunwv, Sovir FAMILY LAW 69 (1968).

22 sapra note 17, at 34.

[23] Gorecki, supra note 15, at 123.

[24] Id.

[25] RS.F.S.R.., Law of Nov. 19, 1926, Code of Laws on Marriage, the Family. and Guardianship.

[26] Gorecki, supra note 15, at 123-24. According to art. 12: Evidence of cohabitation in marriage in the event that a marriage has not been registered shall be for a court: the fact of cohabitation, the existence in connection with this cohabitation of a common establishment, and the declaration to third persons in personal correspondence or other docu-ments of marital relationship, as well as mutual material support, common rearing of children, etc., depending upon the circumstances.


[27] Rudden, supra note 7, at 106.

[28] Gorecki, supra note 16, at 124 citing Gromoglasov, 20 Bud. Bra KI. R.SA~XSM. S (Sup. Ct. R.S2.S.R. 1929).

[29] Gorecki, supra note 16, at 124 citing Gromoglasov, 20 Bud. Bra KI. R.SA~XSM. S (Sup. Ct. R.S2.S.R. 1929).


[30] Goxecki, supru note 16, at 124 citing Code of Laws on Marriage, the Family

[31] Id.

[32] Id.
[33] HAZARD, supra note 6, it 101 citing Law of November 25, 1935 [1935] I. Sob. Uzak. R.S.F.S.R., No. 1, art. 1, §§ 4, 6.

[34] HAZARD, supra note 8, at 101.

[35] Berman, supra note 5, at 332.
[36] Id.
[37] J. Hazard, Supra Note 6, at 101 citing Law of June 27, 1936 [1936] I. Sob. Zak. U.S.S.R. No. 34, art 309, § 31
[38] Id.
[39] J. Hazard, supra note 6 at 101
[40] Berman, supra note 5, at 332

[41] Id.

[42] Id. At 332-33.

[43] L. Petrova & S. Gilevskaya, Equality of Women in the U.S.S.R. 52 (1957).

[44] Gorecki, supra 15, at 124 citing H. Geiger, The Family in The Soviet Economy 355n.105 (1968)

[45] Gorecki, supra 15, at 124 citing N. Dodge, Women in The Soviet Economy 76-99 (1966)

[46] A. Kassof, supra note 10, at 388.
[47] Id.
[48] Id.
[49] Id. at 389.
[50] Gorekci, supra note 15 at 125.
[51] H. Berman, Justice in the U.S.S.R. 49 (1963)
[52] P. Rommashkin, Fundamentals of Soviet Law 371 (Foreign Languages Pub-lishing House, Moscow, undated) [hereinafter citedas P. Romashkin].
[53] Id.
[54] Gorecki, supra note 15, at 126.

[55] Id. citing D. & V. Mace, The Soviet Family 212 (1963).

[56] Id. eiting 12. & v. MACI. Tha Sovnr VAinLY 212 (1963).

[57] Rudden, supra note 7, at 107.

[58] Gorecki, supra note 15, at 127

[59] Id.

[60] P. Romashkin, supra note 52, at 371.

[61] Id. at 371-72.

[62] H. Berman, supra note 12, at 342
[63] Id.

[64] P. Romashkin, supra note 52, at 372.

[65] H. Berman, supra note 12, at 342.

[66] Decree of July 8, 1944 [1944] 37 ‘/ed. Vsrkh. Soy. 5.5.511. Na 15 (Supreme Soviet U.S.S.R.).

[67] Id.

[68] Decree of March 14, 1945 [1945] Ved. Verkh. Sov. S.S.S.R. No. 18 (Su-preme Soviet U.S.S.R).

[69] GoreckI, wpru note £5, at 127.
[70] Mironenko, supra note 17, at 38.

[71] Id.

[72] Id. at 37.

[73] Id. at 38.

[74] Gorecki, supra note 15, at 128 citing Field, The Re-legalization of Abortion in Soviet Russia, 255 New Eng. J. Medicine 421 (1956). The frequency of abortion was one of the reasons for its re-legalization in 1955.

[75] Contra,. Mironenko, supra note 17, at 89 citing the following statement by Zgurskaya. First Deputy State Prosecutor of the Ukraine:
The ruling that all divorce petitions must be heard in court was, it seems to us, introduced with a view to erecting artificial barriers against the dissolution of a family.. . However, the thesis that in a society freed from social inequality family life “for the first time becomes life for the family, a life of love” was forgotten.
There is, therefore, nothing surprising in the fact that neither institution of two atagas of divorce court hearings nor the increased divorce court fees succeeded in cutting down the number of divorces.
The writer asserts statistical support stating that in 1940, just before the US.S.R. entered world War IL the divorce rate was 1.1 per thousand citizens as compared with 0.4 in 1950, typical of the postwar years under Stalk.
According to incomplete statistical data, the number of divorces dropped in the Usbeck Republic from 9,817 in 1939 to 524 in 1949, while the decline in the number of marriages in Usbeck and Kiev amounted to 8 and 13 percent respectively. Gorecki, aura note 15, at 128 citingA. Kmntmgv. Baanlsmv8.S.8.R. (marriage and the family in the OS.SIt) 286(1964).

[76] Id. at 128.
[77] Id. at 126
[78] Id.
[79] Mironeko, supra note 17, at 38.

[80] Id.

[81] A. Kbarchev, The Soviet Family Now and Under CommunIsm, Kommunist in the Current Digest of die Soviet Press 12:9-12, June 22, 1960 at 12.

[82] Decree of Dec. 18, 1965, on Changing the Procedure for Hearing Divorce Cases in the Courts H 24 & 26, [1965] 49 Ved. Verkh. Sov. S.S.S.R. Item 1292 (Supreme Soviet U.S.S.R.).

[83] E. Korenevskaya, Divorce in Russia: New Trends Novasti Press Agency at 4 (undated).

[84] Id.
[85] Id.
[86] Stone, The New Fundamental Principles of Soviet Family Law and Their Social Background, 18 Int’l & Comp. L.Q. 392 (1969) [hereinafter cited as Stone].
[87] Id.
[88] Id.
[89] Id. at 393.
[90] Id.
[91] Id.
[92] Prudkova, New Soviet Family Law, 50 A.B.A.J. 363 (1964) [hereinafter cited as Prudkova].
[93] Id.
[94] Id.
[95] Stone, supra note 86, at 394.
[96] Id.
[97] Prudkova, supra note 92, at 364.

[98] [ 968] 27 Ved. Verkh. Sov. S.S.S.R. Item 241 (Supreme Soviet U.S.S.R.)

[99] Gorecki, supra note 15, at flS.

[100] Id.
[101] A. Gorkin, Concern For The Soviet Family, Soviet Law and Government 29 (1969).
[102] Id.
[103] Stone, supra note 86, at 406.
[104] Id.
[105] See, e.g., P. Eowsmaw, aura note 52, at 36943.
[106] Attorney’s Guide to Family Law Act Practice 143 (C. Brosnahan and G. Colburn ed. 1972) [hereinafter cited as C. Brosnahan].

[107] P. ROMASBEIN, supra note 52, at 369.

[108] Technically there are two grounds provided for in Civil Code 4506, the other being Incurable insanity” which, of course, is only employed in appropriate cases.

[109] C. Brosnahan, supra note 106, at 144.

[110] Gorecki, supra note 16, at 127 citing A. Ksenenok, The Role Of The Court in Strengthening The Family In The Soviet State, 3 Sots. Zak 3 at 7; Filanovsky & Sherman, Family and Marriage Legislation and Life, Sovetakaya Belorussia, June 28, 1957, transl. in 9 The Current Digest of the Soviet Press No. 27, at 19-20 (1957).

[111] Interview with Roger Smith, Acting Chief of Vital Statistics Section, Bu-reau of Vital Statistics. State of California, in Sacramento, California, February 6, 1976 [hereinafter cited as Smith interview].

[112] According to Smith interview and interview with Bureau of Statistics, Call-fornia Judicial Council, San Francisco, California, February 6, 1975.

[113] Interview with William .J. Linehan, Assistant Director, Los Angeles County Conciliation Court Los Angeles, California, February 6,1976.
[114] Gorecki, supra note 18, at 130.

[115] Id.

[116] West Cal. Legislative Service 1913, ch. 987, at 2238, and West Cal. Legislation Service 1973, ch, 11, at 53. See generally Kahn and Frimyner, Management , Probate and Estate Planning Under California’s New Community Property Laws. 49 Cal. St. B.J. 516 (1974) [hereinafter cited as Kahn and Frimmer].

[117] See Kahn and Frimmer, supra note 116, at 616. The states of New Mexico, Texas and Washington have already changed their community property laws to give both spouses equal rights with respect to the management and control of their Community property

[118] Cal. Civ. Code § 5125 (West 1910).

[119] In fairness, however, it should be noted that large numbers of women are also in the professions. It is estimated, for example, that 80-70% of the lawyers and physicians in the Soviet Union are women. The author’s personal experiences and observations in Moscow would corroborate those estimates, at least as to the per-centage of women lawyers.

[120] Johnson, Matrimonial Property in Soviet Law 16 Int’l & Comp. L.Q. 1106, 1132-33 (1967).

[121] Id.
[122] V. Chkhikvadze, The Soviet State and Law 256 (Progress Publishers, Moscow, 1969). (V. Chkhikvadze ed. 1969).

[123] Id.

[124] Id.
[125] M. Belli & D. Jonses, Belli Looks At Life And Law In Russia 196 (1963) [hereinafter cited as M. Belli].


[126] Rudden, supra note 7, at 107.

[127] Id. citing Smolentsev, Jurisdiction In Cases On Dissolution Of Marriage No. 3, 61 (1957).

[128] Soviet Statutes And Decisions, Vol. 4, No.4 at 63, 64.

[129] M. Belli, supra note 125, at 201

[130] Id. at 205,
[131] See Cal. Civ Code § 4508 (West 1954).

[132] Rudden, supra note 7, at 107

[133] C. Brosnahan. supra note 106, at 145
[134] In practice during the hearing of an uncontested dissolution the following questions are asked of the petitioner by counsel to which a “yes” or “no” response is furnished:
1. You are the petitioner in this pipeseding are you not?
2. Axe the facts and statistical data set forth in your dissolution petition
true and correct to the best of your knowledge?
3. In your petition you have asked the court to diascive your marriage,
is that still your intention?
4. Are there presently existing between you and your spouse certain
irreconcilable differences?
5. Have these difl~nnces led to an irremediable breakdown of your
marriage?
6. Do you feel that fuztbkr delay, counseling or the assistance of the
conciliation court would help restore your marriage?

if there is a property settlement agreement it is authenticated by the witness. The court is barred from probing into the masons for the dissolution.
[135] B. RAMUNDO, The Soveit Legal System 38(1974).

[136] Id.
[137] Id.

[138] Likhachev interview, supra note 3. Apparently unaware of the development of no-fault divorce in the United States at that time, Soviet lawyers and judges boasted of their no-fault model while ridiculing American obsession with proving technical fault grounds. When advised of the California no-fault development the Soviets in effect said that, in any event, they first created the concept.