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." 
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
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
…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
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 ]
 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
 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
Memorial to Pearl Weiler Von Ailmen ...........................................................
James 1?. Merritt
The Family Court: When Properly Defined,.
It is Both Desirable and Attainable .........................................................
William C. Gordon
No-Fault Divorce: Born in the Soviet Union ...............................................
Donald AL Bolas
A Constitutional Evaluation of Statutory
and Administrative Impediments to Voluntary
College Residency Requirements, Spousal Domicile
Presumptions and the Fourteenth Amendment .....................................
The Pension Reform Act of 1974: An Alternative to
Contractual Theories of Preserving Retirement
No-Fault Divorce .........................................................................................
Public Compensation to Victims of Crime ..................................................
BOOKS RECEIVED .........................................................................
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.
BORN IN THE SOVIET UNION?
Donald M. Bolas
A Survey of No-Fault Divorce Soviet Style
I. Introduction ...............................................................................................
II. Soviet Family Law Background ...............................................................
A. Early Law ..............................................................................
B. The Movement Toward Stability ...........................................
C. The 1974 Decree—The Pendulum Swings ............................
III. Modern Developments in Soviet Divorce Law ........................................
IV. Soviet and California No-Fault Divorce Laws Compared .....................
A. Soviet Law …………............................................................................
B. Similarities—Soviet and California ………….....................................
C. Dissimilarities ..............................…………........................................
V. Conclusion .....................................…………...........................................
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 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
32 JOURNAL OF FAMILY LAW [Vol. 14 1975]
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
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
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
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.”
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
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.
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.
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
34 JOURNAL OF FAMILY LAW [Vol. 14 1975]
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. 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. A com-panion
decree on marriage also struck at ecclesiastical influence
by declaring that only civil marriages concluded before secular
authorities would be recognized.
According to Marx and Engels 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. 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
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.” 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. 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.
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. The regime’s attitude was
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.
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.”
Moreover, only civil marriage performed in a registry office
gave rise to the rights and duties of spouses. Throughout
the territory under Soviet jurisdiction, marriage was turned
into an empty farce. 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
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
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
The offspring of such cohabitation become the property of
The result of the two decrees was 4,913 divorces and only
991 civil marriages in Moscow during the first seven months
of 1918. 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 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. 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. 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 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. 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. 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. 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.
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. By 1930, marriages
could be terminated by infor-mal mutual agreement, unilateral
desertion, or mere deser-tion without any announcement or
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 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, Additional public homes for children
were established, and propaganda cam-paigns sought to persuade
the public that a strong family was the most communistically
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.” 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. Moreover, a change in attitude
toward the abandonment of children in the event of divorce
was reflected in the law
of 1936,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. 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. 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.” During this period the
pre-Revolutionary Russian family life echoed in the Soviet
idea of the sacredness of the “socialist” family.
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
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.” There was also the matter of seven to
nine million fatherless and homeless children, according to
Russian estimates of the early twenties. 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. 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. 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. 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. 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.” Finally there was the matter of the commonplace
acceptance of abortion which had been legalized in l92O.
Indeed, some Western scholars estimated that in urban areas
the annual number of abor-tions exceeded that of live births.
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.”
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.”
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--
42 JOURNAL OF FAMILY LAW [Vol. 14 1975]
vorce. 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.
B. The 1944 Decree—The Pendulum Swings
Soviet laws have never laid down a list of grounds for divorce.
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. 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.”
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. Soviet law abandoned the enu-meration
of grounds for and bars to divorce.” 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.”  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. In Berman’s view, from the
reports ap-pearing in Soviet law journals and other legal
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. 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.
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.
In a further effort to strengthen legalized marriage, the
1944 Decree abolished de facto marriages. 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. 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. 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.
Thus, in the twenty-seventh year of its existence, the Soviet
state succeeded in reviving a social cat--
44 JOURNAL OF FAMILY LAW [Vol. 14 1975]
egory, namely that of illegitimate children, against whose
existence the Bolshevik leaders themselves had waged a re-lentless
struggle before the Revolution. 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.
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.
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.
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. On the other hand, the change in divorce law
helped produce a significant decline of the divorce rate.
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
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. 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. 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
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.
On November 11, 1955, abortion was legalized in view of the
increasing number of illegal abortions, many of which ended
tragically. 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.
By the Decree of December 15, 1965, 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. Because of that limited
medium, publication could be de-layed for well over a year.
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.
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. 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. 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. The R.S.F.S.R. Code
also served as the model for substantially similar codes in
seven other Republics.
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. Sporadic and piecemeal
reforms referred to earlier had been made
48 JOURNAL OF FAMILY LAW [Vol. 14 1975]
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.
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.
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.
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.
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.
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. Some partici-
49 NO-FAULT DIVORCE [Vol. 14 1975]
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.
The Principles of Legislation of the U.S.S.R. and the Union
Republics on Marriage and the Family of July 3, 1963,
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. 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.” 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
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.
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.
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. They
have suc-ceeded in securing divorce by simple registration
at register offices (Zags) in cases of divorce by mutual agreement
51 No-FAULT DIVORCE [ Vol. 14 1975]
there are no minor children, a reform that has been Long canvassed.
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
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
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
52 JOURNAL OF FAMILY LA W [Vol. 14 1975]
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
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,
and the new statute so employs it in that manner. California,
on the other hand, like other states had been using the term
53 NO-FAULT DIVORCE [vol. 14 1975]
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.”
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. 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.”
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.
Thus it may be seen that in both the Soviet and California
systems the concern is not whether any technical
54 JOURNAL OF FAMILY LAW [Vol. 14 1975]
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. More recent
information suggests, however, that court conciliatory activities
have been ineffective and that the earlier Ukraine figures
In California during 1970 there were 138,953 dissolution petitions
filed. Although there are not any statewide fig- tires
available as to the number of reconciliations attributa-ble
to conciliation courts for that year, 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. 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.
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. Nevertheless,
in 1973 Cali-fornia dramatically revised its community property
laws in accordance with a growing trend in the community
property states. 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
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— 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. To this extent Soviet
law and practice are in accord with much progressive thinking
in western countries. Re-
57 NO-FAULT DIVORCE [Vol. 14 1975]
cent California legislative changes demonstrate, moreover,
the extent to which this modern trend is influencing American
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. 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. 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.
With ideologi-cally seated reasons such as those in this example,
58 JOURNAL OF FAMILY LAW [Vol. 14 1975]
of Soviet law must be considered in a most critical and selec-tive
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, 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.
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. 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
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. 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. 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
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. 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. 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. The statutory standard is satisfied
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. 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
62 JOURNAL OF FAMILY LAW [Vol. 14 1975]
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. 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. 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. 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 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.
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
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
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
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.
 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.
 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].
 Berman, Soviet Family Law in the Light of Russian History
and Marxian Theory, 56 YALE L.J. 26 (1946).
 J. Hazard &I. Shapirp, The Soviet Legal System 99
(1962) [hereinafter cited as J. Hazard].
 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).
 Rudden, supra note 7, at 106
 J. HAZARD, supra note 6, at 100.
 A. Kassof, Propects For Soviet Society 387, 388 (1965)
[hereinafter cited as A. Kassof.]
 H. Berman, Justice In The U.S.S.R. 330 (1963) [hereinafter
cited as H. Berman.]
 Id. at 33041.
 Id. at 831.
 Gorecki, Communist Family Pattern; Law As An Implement
of Change, U. Ill. L.F. 121, 122.23 (1972) [hereinafter cited
 Id. citing B. Daunt, A. Inn. & C. KwcrcaoaN, How
Tim Sovrr Sysmu Wean 59-80, 107-00 (1964).
 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.
 Gorecki, supm note 15, at 123 citing RS.F.S.R. 1918 SOERANIE
UZAK (Collection of Laws) Not 76, hf 818.
 Mironenko, supra note 17, at 33.
 Mironenko, supra note 17, at 34 citing A. Khartsev, Marriage
and the Familyin the U.S.S.R. 139 (1964)
 Mirorienko, supm note 11, at 34 atmg 0. Svunwv, Sovir
FAMILY LAW 69 (1968).
22 sapra note 17, at 34.
 Gorecki, supra note 15, at 123.
 RS.F.S.R.., Law of Nov. 19, 1926, Code of Laws on Marriage,
the Family. and Guardianship.
 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.
 Rudden, supra note 7, at 106.
 Gorecki, supra note 16, at 124 citing Gromoglasov, 20
Bud. Bra KI. R.SA~XSM. S (Sup. Ct. R.S2.S.R. 1929).
 Gorecki, supra note 16, at 124 citing Gromoglasov, 20
Bud. Bra KI. R.SA~XSM. S (Sup. Ct. R.S2.S.R. 1929).
 Goxecki, supru note 16, at 124 citing Code of Laws on
Marriage, the Family
 HAZARD, supra note 6, it 101 citing Law of November 25,
1935  I. Sob. Uzak. R.S.F.S.R., No. 1, art. 1, §§
 HAZARD, supra note 8, at 101.
 Berman, supra note 5, at 332.
 J. Hazard, Supra Note 6, at 101 citing Law of June 27,
1936  I. Sob. Zak. U.S.S.R. No. 34, art 309, §
 J. Hazard, supra note 6 at 101
 Berman, supra note 5, at 332
 Id. At 332-33.
 L. Petrova & S. Gilevskaya, Equality of Women in
the U.S.S.R. 52 (1957).
 Gorecki, supra 15, at 124 citing H. Geiger, The Family
in The Soviet Economy 355n.105 (1968)
 Gorecki, supra 15, at 124 citing N. Dodge, Women in The
Soviet Economy 76-99 (1966)
 A. Kassof, supra note 10, at 388.
 Id. at 389.
 Gorekci, supra note 15 at 125.
 H. Berman, Justice in the U.S.S.R. 49 (1963)
 P. Rommashkin, Fundamentals of Soviet Law 371 (Foreign
Languages Pub-lishing House, Moscow, undated) [hereinafter
citedas P. Romashkin].
 Gorecki, supra note 15, at 126.
 Id. citing D. & V. Mace, The Soviet Family 212 (1963).
 Id. eiting 12. & v. MACI. Tha Sovnr VAinLY 212 (1963).
 Rudden, supra note 7, at 107.
 Gorecki, supra note 15, at 127
 P. Romashkin, supra note 52, at 371.
 Id. at 371-72.
 H. Berman, supra note 12, at 342
 P. Romashkin, supra note 52, at 372.
 H. Berman, supra note 12, at 342.
 Decree of July 8, 1944  37 ‘/ed. Vsrkh. Soy.
5.5.511. Na 15 (Supreme Soviet U.S.S.R.).
 Decree of March 14, 1945  Ved. Verkh. Sov. S.S.S.R.
No. 18 (Su-preme Soviet U.S.S.R).
 GoreckI, wpru note £5, at 127.
 Mironenko, supra note 17, at 38.
 Id. at 37.
 Id. at 38.
 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.
 Contra,. Mironenko, supra note 17, at 89 citing the following
statement by Zgurskaya. First Deputy State Prosecutor of the
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).
 Id. at 128.
 Id. at 126
 Mironeko, supra note 17, at 38.
 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.
 Decree of Dec. 18, 1965, on Changing the Procedure for
Hearing Divorce Cases in the Courts H 24 & 26, 
49 Ved. Verkh. Sov. S.S.S.R. Item 1292 (Supreme Soviet U.S.S.R.).
 E. Korenevskaya, Divorce in Russia: New Trends Novasti
Press Agency at 4 (undated).
 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].
 Id. at 393.
 Prudkova, New Soviet Family Law, 50 A.B.A.J. 363 (1964)
[hereinafter cited as Prudkova].
 Stone, supra note 86, at 394.
 Prudkova, supra note 92, at 364.
 [ 968] 27 Ved. Verkh. Sov. S.S.S.R. Item 241 (Supreme
 Gorecki, supra note 15, at flS.
 A. Gorkin, Concern For The Soviet Family, Soviet Law
and Government 29 (1969).
 Stone, supra note 86, at 406.
 See, e.g., P. Eowsmaw, aura note 52, at 36943.
 Attorney’s Guide to Family Law Act Practice 143
(C. Brosnahan and G. Colburn ed. 1972) [hereinafter cited
as C. Brosnahan].
 P. ROMASBEIN, supra note 52, at 369.
 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.
 C. Brosnahan, supra note 106, at 144.
 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).
 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].
 According to Smith interview and interview with Bureau
of Statistics, Call-fornia Judicial Council, San Francisco,
California, February 6, 1975.
 Interview with William .J. Linehan, Assistant Director,
Los Angeles County Conciliation Court Los Angeles, California,
 Gorecki, supra note 18, at 130.
 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
 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
 Cal. Civ. Code § 5125 (West 1910).
 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.
 Johnson, Matrimonial Property in Soviet Law 16 Int’l
& Comp. L.Q. 1106, 1132-33 (1967).
 V. Chkhikvadze, The Soviet State and Law 256 (Progress
Publishers, Moscow, 1969). (V. Chkhikvadze ed. 1969).
 M. Belli & D. Jonses, Belli Looks At Life And Law
In Russia 196 (1963) [hereinafter cited as M. Belli].
 Rudden, supra note 7, at 107.
 Id. citing Smolentsev, Jurisdiction In Cases On Dissolution
Of Marriage No. 3, 61 (1957).
 Soviet Statutes And Decisions, Vol. 4, No.4 at 63, 64.
 M. Belli, supra note 125, at 201
 Id. at 205,
 See Cal. Civ Code § 4508 (West 1954).
 Rudden, supra note 7, at 107
 C. Brosnahan. supra note 106, at 145
 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
1. You are the petitioner in this pipeseding are you not?
2. Axe the facts and statistical data set forth in your dissolution
true and correct to the best of your knowledge?
3. In your petition you have asked the court to diascive your
is that still your intention?
4. Are there presently existing between you and your spouse
5. Have these difl~nnces led to an irremediable breakdown
6. Do you feel that fuztbkr delay, counseling or the assistance
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.
 B. RAMUNDO, The Soveit Legal System 38(1974).
 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.