Not My Fault: Morality and Divorce Law in the Liberal State

Article by Ayelette Hoffmann Libson

The no-fault divorce revolution has been accompanied by a reluctance on the part of family courts to engage in moral evaluation of marital misconduct.  As a result, moral evaluation has to a large extent migrated from divorce law to torts.  This Article critiques this development and argues that moral evaluation can and should be reincorporated into family law.  The goals of this Paper are twofold. First, it describes the problems with relegating marital misconduct to tort law.  Second, it develops a justification for incorporating evaluation of marital misconduct into divorce proceedings, based on those family values that are recognized by modern liberal society.  I argue that it is possible to identify modern family values and, on their basis, to consider the creation of a liberal moral discourse in family law.  

About the Author

Ayelette Hoffmann Libson: Caroline Zelaznik Gruss and Joseph S. Gruss Visiting Professor, Harvard Law School; Assistant Professor, Radzyner School of Law, the Interdisciplinary Center, Herzliya


93 Tul. L. Rev. 599 (2019)