Divorce law by country
This article is a general overview of divorce laws around the world. Every nation in the world has divorce laws except the Philippines (though Muslims have the right to divorce) and the Vatican City, an ecclesiastical sovereign city-state, which has no procedure for divorce. In these two countries, laws only allow annulment of marriages.
- 1 Muslim societies
- 2 Argentina
- 3 Brazil
- 4 Canada
- 5 Chile
- 6 France
- 7 India
- 8 Ireland
- 9 Italy
- 10 Japan
- 11 Malta
- 12 Philippines
- 13 Portugal
- 14 South Africa
- 15 Sweden
- 16 United Kingdom
- 17 United States
- 18 References
- 19 Further reading
In Muslim societies, legislation concerning divorce varies from country to country. Different Muslim scholars can have slightly differing interpretations of divorce in Islam, (e.g. concerning triple talaq).
No-fault divorce is allowed in Muslim societies, although normally only with the consent of the husband. A wife seeking divorce is normally required to give one of several specific justifications (see below).
If the man seeks divorce or was divorced, he has to cover the expenses of his ex-wife feeding his child and expenses of the child until the child is two years old (that is if the child is under two years old). The child is still the child of the couple despite the divorce.
If it is the wife who seeks divorce, she must go to a court. She must provide evidence of ill treatment, inability to sustain her financially, sexual impotence on the part of the husband, her dislike of his looks, etc. The husband may be given time to fix the problem, but if he fails, the appointed judge will grant divorce should the couple still wish to be divorced.
In Argentina, the legalisation of divorce was the result of a struggle between different governments and conservative groups, mostly connected to the Catholic Church. The first attempt to introduce the law was in 1888, but conservative and religious groups kept blocking the bill, which never became a law.
Only in 1954, President Juan Domingo Perón, who was opposed to the Church, had the law passed for the first time in the country. But Perón was forced out of the presidency one year later by a military revolt, and the government that succeeded him, abolished the law.
Finally, in 1987, President Raúl Alfonsín tried to pass the law again, under the strong opposition of a part of the Church, and the tolerance of another part, that nonetheless stated that the new right was not for Catholics, but for the rest of the Argentine society. The most intransigent sectors of the Church asked for the law not to be promulgated, after Congress passed it. They even considered excommunicating the Congress members who had voted favourably. Although this idea was eventually left aside, one bishop did excommunicate Congress members under his jurisdiction.
Presumably due to the influence of the Roman Catholic Church, divorce became legal in Brazil only in 1977. Since January 2007, Brazilian couples can request a divorce at a notary's office when there is a consensus and have no underage or special-needs children. The divorcees need only to present their national IDs, marriage certificate and pay a fee to initiate the process, which is completed in two or three weeks.
Previously, a one-year period of separation was required by law before a divorce could take place. However, after the 66th amendment to the country's constitution in 2010, such separation is no longer necessary. Therefore, currently, as long as there is agreement between the divorcees and there are no underage children or incapable persons involved, a divorce may be performed by a notary.
Canada did not have a federal divorce law until 1968. Before that time, the process for getting a divorce varied from province to province. In Newfoundland and Quebec, it was necessary to get a private Act of Parliament in order to end a marriage. Most other provinces incorporated the English Matrimonial Causes Act of 1857 which allowed a husband to get a divorce on the grounds of his wife's adultery and a wife to get one only if she established that her husband committed any of a list of particular sexual behaviours but not simply adultery. Some provinces had legislation allowing either spouse to get a divorce on the basis of adultery.
The federal Divorce Act of 1968 standardized the law of divorce across Canada and introduced the no-fault concept of permanent marriage breakdown as a ground for divorce as well as fault based grounds including adultery, cruelty and desertion.
In Canada, while civil and political rights are in the jurisdiction of the provinces, the Constitution of Canada specifically made marriage and divorce the realm of the federal government. Essentially this means that Canada's divorce law is uniform throughout Canada, even in Quebec, which differs from the other provinces in its use of the civil law as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo-Canadian provinces. The law for division of property and debt, however, are within the jurisdiction of each province or territory, creating a structure where both provincial and federal laws will apply in the majority of claims for divorce.
The Canada Divorce Act recognizes divorce only on the ground of breakdown of the marriage. Breakdown can only be established if one of three grounds hold: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming. The one-year period of separation starts from the time at least one spouse intends to live separate and apart from the other and acts on it. A couple does not need a court order to be separated, since there is no such thing as a "legal separation" in Canada. A couple can even be considered to be "separated" even if they are living in the same dwelling. Either spouse can apply for a divorce in the province in which either the husband or wife has lived for at least one year.
On September 13, 2004, the Ontario Court of Appeal declared a portion of the Divorce Act also unconstitutional for excluding same-sex marriages, which at the time of the decision were recognized in three provinces and one territory. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce.
While the overall law is standard at the federal level, each province has its own act determining the rules for division of property and debt, as well as its own procedure for obtaining an order through the courts. In British Columbia, the Family Law Act covers the division of property and debt between divorcing spouses. The rules of the Supreme Court of British Columbia provide for contested procedures, where parties do not agree on terms, and for uncontested divorces (also called desk order divorces) through streamlined procedures designed for spouses who agree on the terms for divorce orders and other relief. In order to get a divorce order, the court must be satisfied that:
- the marriage legally exists,
- at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began,
- the ground on which marriage breakdown in claimed has been proven, and,
- if there are children, an adequate amount of child support is being paid.
In Alberta, The Family Law Act gives clear guidelines to family members, lawyers and judges about the rights and responsibilities of family members. It does not cover divorce, and matters involving family property, and child protection matters. The Family Law Act replaces the Domestic Relations Act, the Maintenance Order Act, the Parentage and Maintenance Act, and parts of the Provincial Court Act and the Child, Youth and Family Enhancement Act.
The Family Law Act can be viewed and printed from the Alberta Queen's Printer website.
One goes to the Court of Queen's Bench of Alberta to obtain a declaration of parentage for all purposes if someone has property to be divided or protected court and or for a declaration of irreconcilability.
There is no such thing as legal separation in Canada. Sometimes, when people say they are legally separated, they mean that they have entered into a legally binding agreement, sometimes called a Separation Agreement, a Divorce Agreement, a Custody, Access and Property Agreement, or a Minutes of Settlement. These types of agreements are usually prepared by lawyers, signed in front of witnesses, and legal advice is given to both parties signing the agreement. However, these types of agreements will, in most cases, be upheld by the courts.
Chile legalized divorce in 2004, overturning an 1884 legal code. The law that legalized divorce is called the Nueva Ley de Matrimonio Civil ("New Civil Marriage Law"), and was first introduced as a bill in 1995; there had been previous divorce bills before, but this one managed to secure enough conservative and liberal support to pass. Under the new law, couples must be separated for a year before divorcing if the split is mutual, and three years if the split is not mutual.
The four marital statuses that exist within Chile are married, separated, divorced, and widow(er). Only the divorced and widow(er) statuses allow a new marriage. Before the legalization of divorce, the only way to leave a marriage was to obtain a civil annulment, and annulments were only granted by telling the civil registrar that the spouse had lied in some way concerning the marriage license, thereby voiding the marriage contract.
The French Civil code (modified on January 1, 2005), permits divorce for 4 different reasons; mutual consent (which comprises over 60% of all divorces); acceptance; separation of 2 years; and due to the 'fault' of one partner (accounting for most of the other 40%).
|This section does not cite any references or sources. (August 2011)|
In Hindu religion marriage is sacrament and not a contract, hence divorce was not recognized before the codification of the Hindu Marriage Act in 1955. With the codification of this law, men and women both are equally eligible to seek divorce. Hindus, Buddhists, Sikhs, and Jains are governed by the Hindu Marriage Act 1955, Christians are governed by The Divorce Act 1869, Parsis by the Parsi Marriage and Divorce Act 1936, Muslims by the Dissolution of Muslim Marriages Act 1939 and Inter-religious marriages are governed by The Special Marriage Act 1954.
Conditions are laid down to perform a marriage between a man and woman by these laws. Based on these a marriage is validated, if not it is termed as void marriage or voidable marriage at the option of either of the spouse. Here upon filing a petition by any one spouse before the Court of law a decree of nullity is passed declaring the marriage as null and void.
A valid marriage can be dissolved by a decree of dissolution of marriage or divorce and Hindu Marriage Act, The Divorce Act and Special Marriage Act allow such a decree only on specific grounds as provided in these acts: cruelty, adultery, desertion, apostasy from Hinduism, impotency, venereal disease, leprosy, joining a religious order, not heard of being alive for a period of seven years, or mutual consent where no reason has to be given. Since each case is different, court interpretations of the statutory law gets evolved and have either narrowed or widened their scope.
Family Courts are established to file, hear and dispose of such cases.
Women empowerment and the age old family system of husband being the head and such other several factors has given a sharp rise in marital discords, Indian Courts are flooded with such divorce petitions making the divorce process more traumatising and time consuming.
The largely Catholic population of Ireland has tended to be averse to divorce. The position has changed in recent times with a sizeable increase in the number of divorces granted by the Irish Courts. Divorce was prohibited by the 1937 Constitution. While in 1986 the electorate rejected the possibility of allowing divorce in a referendum, the prohibition was ultimately repealed by a 1995 referendum which repealed the prohibition on divorce, despite Church opposition. Laws to give effect to the new position came into effect in 1997, making divorce possible for parties who are separated for four out of the preceding five years. Divorce will not be granted in the Republic of Ireland for any other criteria. It is more difficult to obtain a divorce in Ireland than in other jurisdictions.
A couple must be separated for four of the preceding five years before they can obtain a divorce. It is sometimes possible to be considered separated while living under the same roof.
Divorces obtained outside Ireland are only recognised by the State if either:
- at least one of the spouses was domiciled within the jurisdiction which issued the decree of divorce at the time of issue, or
- the state is required to recognise the divorce pursuant to the relevant European Union regulations — currently Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
Divorce was introduced in Italy by law of 1 December 1970. An abrogative referendum supported by Catholic organizations and by the Vatican was defeated on May 13, 1974. A constitutional issue had been also raised with regard to Italy's obligations under the Lateran Treaty, entered into in 1929, on whether it prohibited Italy from authorizing divorce. Before 1970, there was no provision for divorce in Italian law, and the difficulty of ridding oneself of an unwanted spouse in the absence of any legal way to do so was a frequent topic of drama and humor, reaching its apotheosis in the 1961 film Divorce, Italian Style.
In Italy, almost all divorces are granted on the ground of continuous legal separation lasting for three years since the first hearing in the separation procedure. A separation decree may be granted when there are facts which render intolerable the continued cohabitation of the couple or things which are adverse the mental health or physical wellbeing of children in the home. Separation may also be granted on both spouses' request.
Divorce may be granted without previous separation decree only in very rare cases (e.g. final criminal conviction, divorce obtained abroad by the foreign spouse, sex change).
Divorce by mutual consent is a simple process of submitting a declaration to the relevant government office that says both spouses agree to divorce. This form is often called the "Green Form" due to the wide green band across the top. If both parties fail to reach agreement on conditions of a Divorce By Mutual Consent, such as child custody which must be specified on the divorce form, then they must use one of the other three types of divorce. Foreign divorces may also be registered in Japan by bringing the appropriate court documents to the local city hall along with a copy of the Family Registration of the Japanese ex-spouse. If an international divorce includes joint custody of the children, it is important to the foreign parent to register it themselves, because joint custody is not legal in Japan. The parent to register the divorce may thus be granted sole custody of the child according to Japanese law.
Divorce by Mutual Consent in Japan differs from divorce in many other countries, causing it to not be recognized by all countries. It does not require the oversight by courts intended in many countries to ensure an equitable dissolution to both parties. Further, it is not always possible to verify the identity of the non Japanese spouse in the case of an international divorce. This is due to two facts. First, both spouses do not have to be present when submitting the divorce form to the government office. Second, a Japanese citizen must authorize the divorce form using a personal stamp (hanko), and Japan has a legal mechanism for registration of personal stamps. On the other hand, a non-Japanese citizen can authorize the divorce form with a signature. But there is no such legal registry for signatures, making forgery of the signature of a non-Japanese spouse difficult to prevent at best, and impossible to prevent without foresight. The only defense against such forgery is, before the forgery occurs, to submit another form to prevent a divorce form from being legally accepted by the government office at all. This form must be renewed every six months.
Despite civil marriage being introduced in 1975, no provision was made for divorce except for the recognition of divorces granted by foreign courts. Legislation introducing divorce came into effect in October 2011 following the result of a referendum on the subject earlier in the year. It provides for no-fault divorce, with the marriage being dissolved through a Court judgement following the request of one of the parties, provided the couple has lived apart for at least four years out of the previous five and adequate alimony is being paid or is guaranteed. The same law made a number of important changes regarding alimony, notably through extending it to children born of marriage who are still in full-time education or are disabled and through protecting alimony even after the Court pronounces a divorce.
||This section is written like a personal reflection or opinion essay rather than an encyclopedic description of the subject. (April 2010)|
|This section may contain previously unpublished synthesis of published material that conveys ideas not attributable to the original sources. (April 2011)|
Philippine law, in general, does not provide for divorce inside the Philippines. The only exception is with respect to Muslims, who are allowed to divorce in certain circumstances. For those not of the Muslim faith, the law only allows annulment of marriages. Article 26 of the Family Code of the Philippines does provide that
- Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.
- [..] we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry.
Complications can arise, however. For example, if a legally married Filipino citizen obtains a divorce outside of the Philippines, that divorce would not be recognized inside the Philippines. If that person (now unmarried outside of the Philippines) then remarries outside of the Philippines, he or she could arguably be considered in the Philippines as having committed the crime of bigamy under Philippine Laws.[according to whom?] The above complications will not arise if the legally married Filipino citizen obtains foreign citizenship first, then secures a foreign divorce decree.
Also, Article 15 of the Civil Code of the Philippines provides that
- Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.
In Article 26, paragraph 2 a number of questions can be raised with respect to the operation of this provision, to wit:
- Is there a need for a judicial decree in Philippine courts to declare the Filipino spouse qualified to remarry? The Family Code has no explicit provision to that effect, unlike in cases of void marriages and of a remarriage in case of absence of one of the spouses amounting to presumptive death (Art. 40 and 41, Family Code) where a court decree is required.
- Is Art. 26, par. 2 applicable to foreign divorces obtained before the effectivity of the Family Code in view of Art. 256?
- What if the Filipino spouse does not intend to remarry, what is the status of any children they may have after the divorce decree? Does the Filipino spouse have a right to demand support from his/her former alien spouse? What is his/her status with respect to his/her former foreign spouse? Can he/she claim share of property or income acquired by the former foreign spouse?
The process of the divorce annulment is an expensive one; it cost about 100,000–200,000 pesos or 2000–4,000 US dollars, which is about a year's wages for a typical Filipino. The process usually takes 1–2 years.[according to whom?]
One of the steps in the process is a psychological assessment for use or reason of annulment. This costs an additional 10,000–15,000 pesos or 200–300 US dollars.
Another step in the process is an interview with a court appointed social worker to eliminate possible "collusion" among the parties involved especially if there are children. Children under the age of 7 are awarded to the mother. There are no standards in child support or support to spouse to maintain her previous standard in society.
The general assumption for this reason for annulment is that the government is influenced by the Catholic religion and continues to be advised by their leadership rather than a democratic process. However, this conclusion is not necessarily true, and even under the administration of non-Catholic leaders, divorce continues to be a non-issue among majority of Filipinos.
Women's groups have clamored for divorce to be made legal but all attempts to ratify it into law have failed in the past.
Filipino law, as stated above, does make some concession to Muslims, though.
Portugal's divorce laws were modified in October 2008, liberalizing the process. Divorce may be obtained either by mutual consent; or, at the request of one spouse, if any of the following grounds exist: 1) separation for one year; 2) Any change in the mental faculties of the other spouse when this has lasted for more than a year because of its seriousness, it compromises the possibility of life together; 3) Absence of one spouse without any news for a period of more than a year; 4) Any other facts that reveal a definitive breakdown of the marriage (eg. domestic violence). The new 2008 law abolished the legal concept of 'fault' (divórcio-sanção). 
The law of divorce in South Africa is codified in the Divorce Act, 1979. The law provides for no-fault divorce based on the irretrievable breakdown of the marital relationship. The courts may accept any relevant evidence, but the law specifically mentions one year's separation, adultery, and habitual criminality as factors which may prove irretrievable breakdown. A divorce may also be obtained on the grounds of incurable mental illness for two years, or continuous unconsciousness for six months.
Divorce cases are heard in the High Courts or, since 2010, in the regional civil magistrates' courts. A court has the jurisdiction to hear a divorce if either of the spouses is legally domiciled within the geographical jurisdiction of the court, or if either spouse is "ordinarily resident" (i.e. normally lives in) the jurisdiction and has been ordinarily resident in South Africa for at least a year.
Divorce of same-sex couples is subject to the same law as divorce of opposite-sex couples. Divorce for marriages under customary law is also subject to the civil law, with certain modifications to account for the fact that customary marriages may be polygynous.
Should the divorcees have children, it is necessary to compile a parenting plan which must be signed off by the family advocate.
To divorce in Sweden the couple can file for divorce together or one party can file alone. If they have children under 16 living at home or one party does not wish to get divorced there is a required contemplation period of 6 to 12 months. During this period they stay married and the request must be confirmed after the waiting period for the divorce to go through.
England and Wales
Divorce in the United States is a matter of state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. The laws of the state(s) of residence at the time of divorce govern; all states recognize divorces granted by any other state. All states impose a minimum time of residence. Typically, a county court’s family division judges petitions for dissolution of marriages.
Before the latter decades of the 20th century, a spouse seeking divorce had to show cause and even then might not be able to obtain a divorce. The legalization of no-fault divorce in the United States began in 1969 in California, and was completed in 2010, with New York being the last of the fifty states to legalize it. However, some states still require some waiting period before a divorce, typically a 1– to 2–year separation. Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, or alimony. Since the mid-1990s, a few states have enacted covenant marriage laws, which allow couples to voluntarily make a divorce more difficult for themselves to obtain than in the typical no-fault divorce action.
Mediation is a growing way of resolving divorce issues. It tends to be less adversarial (particularly important for any children), more private, less expensive, and faster than traditional litigation. Similar in concept, but with more support than mediation, is collaborative divorce, where both sides are represented by attorneys but commit to negotiating a settlement without engaging in litigation. Some believe that mediation may not be appropriate for all relationships, especially those that included physical or emotional abuse, or an imbalance of power and knowledge about the parties' finances.
States vary in their rules for division of assets. Some states are "community property" states, others are "equitable distribution" states, and others have elements of both. Most "community property" states start with the presumption that community assets will be divided equally, whereas "equitable distribution" states presume fairness may dictate more or less than half of the assets will be awarded to one spouse or the other. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Attempt is made to assure the welfare of any minor children generally through their dependency. Alimony, also known as 'maintenance' or 'spousal support', is still being granted in many cases, especially in longer term marriages.
A decree of divorce will generally not be granted until all questions regarding child care and custody, division of property and assets, and ongoing financial support are resolved.
Due to the complex divorce procedures required in many places, some people seek divorces from other jurisdictions that have easier and quicker processes. Most of these places are commonly referred to negatively as "divorce mills."
Where people from different countries get married, and one or both then choose to reside in another country, the procedures for divorce can become significantly more complicated. Although most countries make divorce possible, the form of settlement or agreement following divorce may be very different depending on where the divorce takes place.
In some countries there may be a bias towards the man regarding property settlements, and in others there may be a bias towards the woman concerning property and custody of any children. One or both parties may seek to divorce in a country that has jurisdiction over them. Normally there will be a residence requirement in the country in which the divorce takes place. See also Divorces obtained by US couples in a different country or jurisdiction above for more information, as applicable globally. In the case of disputed custody, almost all lawyers would strongly advise following the jurisdiction applicable to the dispute, i.e. the country or state of the spouse's residence. Even if not disputed, the spouse could later dispute it and potentially invalidate another jurisdiction's ruling.
Some of the more important aspects of divorce law involve the provisions for any children involved in the marriage, and problems may arise due to abduction of children by one parent, or restriction of contact rights to children. For the conflict of Laws issues, see divorce (conflict).
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