G. M. Sverdlov, Some Problems of Judicial Divorce. July 1946
Original Source: Sovetskoe gosudarstvo i pravo, No. 7 (1946).
By the Decree of the Presidium of the Supreme Soviet of the USSR, of July 8, 1944, essential changes in divorce procedure have been introduced. Instead of the former system by which divorces were recorded by the Registrar’s Offices at the demand even of a single partner, a judicial divorce procedure has been inaugurated under which the motives for the request for divorce must be established, and the court is entitled to reject the suit. This authority of the court to refuse divorce is the fundamental innovation in the material law on divorce introduced by the new Decree; taken together with the changed approach to the registration of marriage it expresses a strengthening of the cultural-educational impact of the socialist State in favor of the strengthening of the family, ” fighting light-minded attitudes towards the family and family obligations “, and extending the protection of the rights of the individual as well as those of the community.
From this fundamental change in material law derive all the innovations in divorce procedure introduced by the Decree of July 8, 1944: the two stages of judicial investigation in a lower and a higher court, the admission of witnesses in divorce suits, the publicity granted to divorce proceedings, and the increased fees payable in the case of divorce, which are calculated in a new way.
As a result of the Decree a number of new and essential questions presented themselves which previously either had not arisen, or had had to be decided in another way. With some of these we deal here, and first of all with the reasons for which divorces are granted by the courts.
Unlike the legislation of other countries, the Decree of July 8, 1944, does not enumerate a list of legal grounds for divorce; it entitles the court to assess the reasons for dissolution of marriage according to the actual circumstances of each individual case. By such an attitude on the part of the Law to the reasons for divorce the law-making function of the courts in such matters is greatly enhanced, thus giving exceptional importance to the theoretical generalization of that function …
Recently I had the opportunity of studying a considerable number of divorce cases decided after the Decree of July 8, 1944-most of them during the first half of 1945. These covered in all more than 400 cases, decided by the courts in eighteen towns. At this stage it is evidently impossible to arrive at anything like an exhaustive picture of the norms established by court practice in these cases; such practical experience as is available is still insufficient, and no definite line has been laid down, even on some fundamental points. Yet in some fields certain permanent principles can already be considered as established.
The material we have collected allows of a clear distinction in the approach of the courts to divorce cases according as the partners have or have not agreed to divorce. The overwhelming majority of the investigated divorce suits decided by the courts after the Decree of July 8, 1944, were initiated either by mutual agreement between the parties, or, though started by one party only, did not meet with any objection from the other side. In about two-thirds of the cases investigated there was agreement between the parties, and it is important to notice that in all these cases the court granted their request.
This fact seems symptomatic, and would appear to prove that from the very start the courts regarded mutual agreement between the parties as to the necessity of divorce as a sufficient reason for granting it. This is shown not only by the absence of cases where divorce was denied when both parties agreed as to its necessity, but also by the very frequent motivations of court decisions in such cases expressed by statements such as ” In view of the insistence of both parties on divorce “, ” In view of the fact that the defendant raises no objection to divorce”, and so on.
In my opinion, such an approach on the part of the courts to the highly important issue of divorce by mutual agreement fully corresponds to the general intentions and theoretical principles upon which the Decree of July 8, 1944, and the whole of Soviet Family Law as it has operated since the issue of that decree are based. Divorce legislation cannot be correctly interpreted unless we understand its organic connection with the legislation on marriage, that is, the connection between the material content of the norms on marriage and the norms on divorce.
…The Decree of July 8, 1944, introduced no change in the material content of the norms on marriage; by stating that registered marriage alone establishes matrimonial rights and duties it merely changed, though essentially, the regulation of the form of marriage. But it did not change the fundamental principles which had characterized Soviet legislation on marriage since the first days of the October Revolution. One of those principles is freedom of marriage, its foundation in the free and voluntary agreement of the parties to the marriage, as explicitly required by the law (art. 4 of the Code of Family Law of the RSFSR) … This principle also finds expression in the rejection, by our law, of the principle familiar to bourgeois and pre-revolutionary Russian legislation, that the decision to enter upon marriage may depend on the will of persons other than those to be married (parents, guardians, superiors). Our law distinctly rejects the possibility of marriage on the basis of the subjection of the will of one of the parties to the marriage to that of another person, and in those parts of the Union where such phenomena may occur as vestiges of tribal life, it prosecutes them as criminal offences.
From this principle of the inadmissibility of enforced marriage follows that of freedom of divorce. Just as marriage is contracted by free agreement, so also it can be dissolved by mutual agreement. The State only needs guarantees for the presence of really voluntary agreement and of a serious, not light-minded, approach to that agreement on the part of the parties. The new judicial procedure for divorce aids the very establishment of such guarantees.
In his book on the Fundamental Principles of Civil Law Professor I. A. Pokrovskii criticizes the idea that legislation regarding divorce could and should pursue the task of opposing light-mindedness, and states that “light-mindedness takes no account of any considerations “. We are unable to agree with a point of view which thus denies the influence of the Law and the State on the conscious actions of individuals. Certainly it is impossible to establish absolute guarantees against a light-minded approach in coming to an agreement on divorce. But some guarantees do exist, and are enacted in this very decree of July 8, 1944: judicial divorce procedure, obligation on the part of the court to establish the motives of the divorce in every case and to attempt the reconciliation of the parties, obligatory publication of the request for divorce, the demand for the personal appearance of both parties in court, the payment of a considerable fee on registration of the divorce; all these measures provide serious guarantees against a flippant approach to divorce. The materials proving the restrictive influence of the new rulings upon divorce have not yet been sufficiently analyzed; but the statistics already available, both those of the courts and of the Registration Department of the Ministry for Internal Affairs of the USSR, show a rapid fall in the number of divorces.
As already mentioned, in cases of mutual agreement between the parties the courts take the attitude that divorce must always be granted. It may be asked what differences exist in such cases between the present legal position and the former, when divorce was simply recorded at the Registrar’s Office. But under the former rulings the registration of divorce did not constitute a juridical act which formed a necessary condition for the ending of matrimonial rights and duties just as, before the Decree of July 8, 1944, the registration of marriage at the Registrar’s Office merely ” formally established marriage ” (see art. I of the Family Code), so the registration of divorce at the Registrar’s Office was a mere formal establishment of divorce; independently of the registration of divorce, legal matrimonial relations might in certain cases be regarded as dissolved if the absence of de facto matrimonial relations was established in court. This legal position has been changed by the July Decree; as marriage can no longer be dissolved except by a court decision, that decision has become the constituent fact of divorce. Unless there is a court decision on divorce, recorded in the Registrar’s Office, the legal matrimonial relations, that is, the rights and obligations of the partners, continue to exist in all respects. This very importance of the court decision on divorce constitutes the disciplinary importance of the new law against light-minded, flippant divorces. But the fact that the court decision on divorce now has consequences so important for the citizens concerned places an obligation on the court to grant divorce whenever the demand is based upon serious considerations put forward by the parties.
A different attitude is adopted by the courts towards divorce suits when the consent of one party to the marriage is lacking and the demand is opposed. Freedom of divorce ought not to involve arbitrariness and misuse of that freedom: therefore the courts, when dealing with such cases, occasionally refuse divorce. The number of rejected divorce suits is small (5 to 6 per cent of all the cases); but it is important to notice that all of these are defended suits, and of these about 23 per cent were rejected … Thus we find that in the large majority even of contested divorce suits, divorce was finally granted. But the fact that refusals of requests for divorce are found only in cases where one of the spouses objected may be regarded as characteristic and important: the courts have rightly interpreted the tendency of our legislation as being directed against unfounded and arbitrary demands for divorce raised by only one of the parties to the marriage.
A summary attempt at generalization from those cases where court procedure resulted in the refusal of divorce may be made as follows:
(1) All such refusals occurred in cases where there were objections to divorce: the very presence of objections to divorce caused the case to be contested and induced the court to consider other reasons for divorce than the mere desire of the parties to part from each other;
(2) Courts deny divorce because they do not find that the behavior of the defendant was responsible for the failure of the marriage;
(3) Reference by the claimant to his own guilty behavior (for example, admission of his own adultery) is not considered a sufficient reason for the dissolution of marriage;
(4) In all cases where divorce was refused there were minor children. As the courts regard absence of guilt on the part of the objecting spouse as a reason for refusing divorce, such a refusal may, in theory, also be envisaged in the absence of children, but their presence, in view of the unfavorable implications which divorce may have for their interests, is regarded as a factor supporting the objections to divorce.
… It is impossible to give a general picture of the reasons for which divorce is granted even if the spouse objects; but some of these reasons are evident in the cases which we had the opportunity to study. Amongst them we notice:
(1) Established guilt on the part of the respondent (especially violations of matrimonial fidelity committed by him) and behavior which renders continued community of life impossible for the other partner;
(2) Common guilt on the part of both spouses, which results in making the continuance of a joint life impossible;
(3) Objective impossibility of continued common life for reasons that cannot be regarded as due to the guilt of either party: for example, prolonged absence if the other partner cannot be traced or chronic insanity …
3. ALIMONY FOR THE DIVORCED PARTNER.
Amongst the issues arising from the dissolution of marriage the support due by one of the divorced partners to the other should be regarded as specially important. The Decree of July 8, 1944, does not mention any obligation on the part of the judge to raise and to decide this issue in cases where he regards the dissolution of marriage as necessary (art. 26). But obviously the lack of mention of this issue in the Decree should not be interpreted as restricting the right of either divorced partner, if in need and incapable of working, to be supported by the other, and the obligation of that other to afford such support if his material conditions allow for it. Articles 14-15 of the Family Code of the RSFSR and the corresponding articles of the Codes of the other Union Republics by which these rights and duties are established have not been altered in their essential points since the publication of the Decree of July 8, 1944; and therefore those rights and obligations still remain in full legal force.
Moreover, I am disposed to regard that issue as even more important now than it was before the issue of the July Decree. The fundamental idea of that Decree is to increase the responsibilities implied in marriage and to heighten responsibility to the family for the fulfillment of familial obligations. In the light of that conception the obligation of the one partner to grant the necessary support to the other if incapable of working is evidently important, and the fact that the issue is hardly touched in divorce cases should be regarded as abnormal. Among some hundreds of divorce cases which I have had the opportunity to study there was not a single one where the court, when granting divorce, would have imposed on one partner the obligation to support the other.
Apart from the need to normalize judicial practice in this regard, it seems to me that a more precise regulation of the right of the divorced husband to alimony has become necessary in connection with the July Decree. In our present legislation, there are wide differences in the norms established by the codes of the various Republics on this very issue, and it is possible to enumerate at least six different ways in which it has been dealt with.
According to the legislation of one group of Republics (including the RSFSR and the Kirghiz, Kazakh, Karelo-Finnish, Lithuanian, Latvian and Estonian SSRs), a right to alimony is given for a period of one year from the termination of the marriage to a partner in need and incapable of work without any stipulations regarding the time and cause of the origin of the incapacity to work.
A different answer is found in the Code of the Turkmen SSR: here the right to alimony is granted for the duration of one year, but this right is not given if the incapacity to work began after the divorce (arts. 15 and 16 of the Family Code of the Turkmen SSR).
The Codes of the Uzbek and Tadzhik SSRs represent the third approach: the right to alimony continues for three years after the end of the marriage, but not if incapacity to work has originated only after the end of the marriage (arts. 11 and 12 of the Family Codes of the Tadzhik and of the Uzbek SSRs).
A slight difference is to be found in the regulation of the Family Code of the Georgian SSR (arts. 22 and 23): here, too, the right continues for three years, but only on condition that the incapacity to work arose before, or during, or-if after-in connection with the marriage.
According to the fifth way of handling the issue, in the Ukrainian (arts. 128 and 129), Moldavian, and Azerbaijan (arts. 29 and 30) Codes there is no time-limit for the right to alimony, but it is not granted if the incapacity to work arose … later than one year after the end of the marriage, and it ends if the needy partner contracts a new marriage.
The sixth, and last, variant is represented by the Code of the Belorussian SSR (arts. 25 and 26): here there is no time-limit and there are no conditions similar to those laid down in the other republics for the right to alimony of the partner in need and incapable of working.
… I do not intend to discuss here the details of all the Codes mentioned; but I consider that the future Family Law which will establish homogeneity in the regulation of this issue in all the republics should establish a higher degree of responsibility, in the case of divorce, of the one spouse for his former partner who is incapable of work than is envisaged in, for example, the present rulings of article 15 of the Family Code of the RSFSR This would correspond better to the moral aspect of marriage as well as to the tendency of our legislation to oppose a flippant approach to marriage and divorce. But even before the enactment of such necessary amendments to our legislation the tendency of our law to increase matrimonial responsibility should find expression in court practice by a more frequent application of the rulings of the existing law on the alimony claims of the divorced partner incapable of work.
4. FAMILY NAMES OF DIVORCED HUSBANDS.
According to the Decree of July 8, 1944 (art. 26, (c)), the court, when finding dissolution of the marriage necessary, CC restores to each of the divorced spouses, if so desired, the original family name”.
The matter of the family names of divorced persons is important from the practical as well as from the theoretical point of view … Of course, it does not arise when the partners on entering into marriage preserve their former family names; but if one of the partners changes his name (in actual practice,(7) it is usually the wife who accepts the husband’s name), in the case of divorce the issue arises which family name should henceforth be used by that spouse. In deciding this question, which in many cases it may be difficult to do, various considerations-moral, psychological and economic-play their part. The desire to have the former relation definitely ended by divorce; reluctance to use the name of the former partner in cases when he has somehow incurred infamy; these and various other considerations may induce the desire to return, after divorce, to the original family name. Other considerations may work in the opposite way: a wife who during some years of married life has used the husband’s family name may desire to retain that name after divorce because under it she has acquired … a professional reputation; and the longer her married life has lasted, the heavier the weight to be given to such considerations. If she keeps children with her, she may desire to retain the family name used during her marriage in order to avoid discrepancies between the names used by herself and by her children. Other considerations may play their part: in one case a husband who, on marrying, had assumed the wife’s name, asked to retain it after divorce because he found that his original name did not sound well. But again, a spouse whose family name was assumed by the other partner at the time of marriage may have various objections against that partner’s continuing to use the name after divorce. In any case the issue is an important one; and from the theoretical point of view its decision is interesting as an illustration of the general approach of the legislator to the personal rights of the parties to the marriage.
By the July Decree the former decision of that issue has notably changed. Therefore, the Family Codes of the Union Republics allowed a partner who at the time of marriage had assumed the other partner’s name to continue to use it only if that partner had no objection; if such objections were raised, he was restored to his former name. According to the July Decree, no assent by the other partner is needed for continued use of the common family name: the former name is restored to a spouse only on his own demand. Such a decision on this question clearly expresses the care of the Soviet State for the rights and personal dignity of women (who in the large majority of cases are the partners immediately concerned in the issue of the family name). The party ‘who has changed his name at the time of marriage (usually the wife) is allowed to decide this important issue for himself, independently of the considerations which may motivate the objections raised by the other partner … This answer to the problem is in full agreement with the principles governing our norms on the names of married parties; the close organic connection between the legislative norms on divorce and on marriage respectively can be observed here as well as in other fields. Our law does not order the wife to assume the husband’s name; on this matter also it avoids any impairment of woman’s personal status by marriage and any subjection of her personality to that of the husband. According to Soviet law, the partners to a marriage are free to choose their family name at the time of marriage, and neither of them depends in this matter on the other’s will. In complete accordance with this principle, by the Decree of July 8, 1944, every partner is entitled to decide this issue for himself in the case of divorce also …
5. DIVORCE FEES
By the Decree of July 8, 1944 (art. 27), the court, when granting divorce, prescribes a fee of from 500 to 2,000 rubles, to be levied by the Registrar’s Office on one or both partners, according to the court’s decision, when the certificate of divorce is issued. The question of this sum of money has so far remained a contested issue. What is its function in the divorce case; should it be regarded as a form of public fee? What principles should guide the court’s decision as to the amount and its distribution between the parties? Should the lower amount mentioned in the law (500 rubles) be regarded as an obligatory minimum, or is the court entitled to reduce, and if necessary completely to excuse, the fee for either party, and if so, by what principles should it be guided? In my opinion, none of these questions has as yet been settled.
The main and general reason for the largish fee established by the Decree is the need to put considerable difficulties in the way of divorce as an additional means of combating a light-minded approach to that issue. This purpose is common to the other norms of the Decree, which make divorce more difficult than previously. This increase in the divorce fee continues the course already entered on by the law of June 27, 1936, when the government, intending ” to combat a light-minded approach to the family “, previously increased the fee demanded for the registration of divorce. From that general purpose follows the need to establish a connection between the adjudication of the fee and the reasons for which the court grants divorce and I would suggest that this connection be formulated thus
(1) In cases where a divorce is granted because of the guilt of one or both of the partners, the fee should be imposed upon one or both of them;
(2) In cases where divorce is granted because of mutual agreement between the parties, the fee should be levied on both of them;
(3) In cases where divorce results from the objective impossibility of continued married life (for example, the disappearance of one spouse without trace, or chronic insanity), the fee should be levied on the other partner who demands the divorce.
In my view such an approach to the question, i.e., the levying of the fee in close dependence on the grounds of divorce alone, gives to that part of the court’s decision the necessary character of principle and affords the court a sufficiently clear and concrete basis for its decision whether as to the amount of the fee or as to the party on whom it should be levied. As can be shown from court practice, failure to decide these issues in connection with the reasons for divorce results in judgments which are bound to provoke criticism.
For example, the marriage of the Stepanov family was dissolved at the request of the wife, who complained that her husband left her, moved to another town, and there formed a common household with another woman. Although the court regarded this as proved, and granted a divorce on that ground, the claimant, that is, the wife, was mulcted in the fee of 500 rubles.
In the case Isaeva v. Isaev, a divorce was granted at the wife’s petition because the court accepted her allegations that the husband was a drunkard, committed excesses, beat the child of the marriage, etc. In spite of this the prescribed fee was levied from the claimant in this case also, evidently because she had filed the suit.
In the suit for divorce against Ratkov, filed by his wife, the court established that the petitioner herself was responsible for the failure of the marriage and that there was no guilt on the defendant’s side. In spite of this, the fee was levied not only from the petitioner, but from the defendant also.
The case of Ivanova v. Ivanov was filed by the wife, who pleaded that during the war her husband had a record of repeated desertion from the front, and was for that reason convicted. In the court’s decision it was stated that the claimant demanded divorce because she could no longer bear the infamy of her husband and live jointly with a traitor, and a divorce was granted; but again the fee was levied from the petitioner, evidently because the defendant was (naturally) absent and the court deemed that the party filing the suit was obliged to pay.
… The main criterion, according to which the levying of the fee should be made to depend on the reasons for the divorce, should, in my view, be subject to modifications in accordance with the material conditions of the parties. But in court practice it is evidently assumed that the general norm of the Code of Civil Procedure, according to which the court when levying fees must take into consideration the material position of the parties concerned, should not be applied to the fees prescribed by article 27 of the Decree of July 8, 1944. Amongst some hundred divorce cases which I have had the opportunity to study there was not a single one where the fee levied by the court was lower than 500 rubles, or where the court waived the fee altogether. Such an attitude seems to me mistaken and not based upon the law. In the decision of the Soviet of People’s Commissars of the USSR of August 24, 1944, published on the basis of the Decree of July 8, 1944, the sum to be paid for a divorce certificate is explicitly described as a sub-species of the general fees levied for court procedure … In all cases where fees are levied ” for the decision of issues investigated in court ” the court is entitled to dispense from such fees workers who cannot afford them. There is no legal ground for the opinion that the court could not apply the same discretion in levying the fees prescribed by the July Decree. In deciding such issues the court, guided by the main criterion of the reasons for which divorce is being granted, should also take account of the material conditions of the parties; and on the basis of article 43 of the Code of Civil Procedure it should, when necessary, use its discretion to reduce the prescribed sum, or even wholly to dispense both parties from its payment …
Source: Rudolf Schlesinger, ed., Changing attitudes in Soviet Russia; the Family in the USSR (London: Routledge & K. Paul, 1949), pp. 377-389.