|Marriage and other
equivalent or similar unions and status
|Validity of marriages|
|Dissolution of marriages|
|Private international law|
|The Family and the Criminal Code
(or Criminal Law)
Divorce (or the dissolution of marriage) is the termination of a marital union, the canceling and/or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country and/or state.
Divorce should not be confused with annulment, which declares the marriage null and void; with legal separation or de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto separation (a process where the spouses informally stop cohabiting). Reasons for divorce vary, from sexual incompatibility or lack of independence for one or both spouses to a personality clash.
Divorce laws vary considerably around the world, but in most countries it requires the sanction of a court or other authority in a legal process. The legal process of divorce may also involve issues of alimony (spousal support), child custody, child visitation / access, parenting time, child support, distribution of property, and division of debt. In most countries monogamy is required by law, so divorce allows each former partner to marry another; where polygyny is legal but polyandry is not, divorce allows the woman to marry a new husband.
Divorce can be a stressful experience, affecting finances, living arrangements, household jobs, schedules, parenting and the outcomes of children of the marriage as they face each stage of development from childhood to adulthood. Such children may be deeply affected.
The only countries that do not allow divorce are the Philippines and the Vatican City, an ecclesiastical state, which has no procedure for divorce. Countries that have relatively recently legalized divorce are Italy (1970), Portugal (1975), Brazil (1977), Spain (1981), Argentina (1987), Paraguay (1991), Colombia (1991* ) Ireland (1996), Chile (2004) and Malta (2011).
- 1 Overview
- 2 Law
- 3 Polygamy and divorce
- 4 Effects of divorce
- 5 Statistics
- 6 Divorce of same-sex married couples (United States)
- 7 History
- 8 Causes of divorce
- 9 Religion and divorce
- 10 Gender and divorce
- 11 See also
- 12 References
- 13 Suggested reading
- 14 External links
Divorce grounds vary significantly from country to country. Marriage may be seen as a contract, a status, or a combination of these. Where it is seen as a contract, the refusal or inability of one spouse to perform the obligations stipulated in the contract may constitute a ground for divorce for the other spouse. In contrast, in some countries (such as Sweden, Finland, Australia, New Zealand), divorce is purely no fault. Many jurisdictions offer both the option of a no fault divorce as well as an at fault divorce. This is the case, for example, in many US states (see Grounds for divorce (United States)).
Though divorce laws vary between jurisdictions, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, shared care arrangements and support. In some jurisdictions one spouse may be forced to pay the attorney's fees of another spouse.
Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, issues of division of property are typically determined by the law of the jurisdiction in which the property is located.
In Europe, divorce laws differ from country to country, reflecting differing legal and cultural traditions. In some countries, particularly (but not only) in some former communist countries, divorce can only be obtained on one single general ground of "irretrievable breakdown of the marriage" (or a similar formulation). Yet, what constitutes such a "breakdown" of the marriage is interpreted very differently from jurisdiction to jurisdiction, ranging from very liberal interpretations (e.g. Netherlands) to quite restrictive ones (e.g., in Poland, there must be an "irretrievable and complete disintegration of matrimonial life," but there are many restrictions to granting a divorce). Separation constitutes a ground of divorce in some European countries (in Germany, e.g., a divorce is granted on the basis of a 1-year separation if both spouses consent, or 3-year separation if only one spouse consents). Note that "separation" does not necessarily mean separate residences - in some jurisdictions, living in the same household but leading a separate life (e.g., eating, sleeping, socializing, etc. separately) is sufficient to constitute de facto separation; this is explicitly stated, e.g., in the family laws of Latvia.
Divorce laws are not static; they often change reflecting evolving social norms of societies. In the 21st century, many European countries have made changes to their divorce laws, in particular by reducing the length of the necessary periods of separation, e.g., Scotland in 2006 (1 or 2 years from the previous 2 or 5 years); France in 2005 (2 years from the previous 6 years), Switzerland in 2005 (2 years from the previous 4 years), Greece in 2008 (2 years from the previous 4 years). Some countries have completely overhauled their divorce laws, such as Spain in 2005, and Portugal in 2008. A new divorce law also came into force in September 2007 in Belgium, creating a new system that is primarily no-fault. Bulgaria also modified its divorce regulations in 2009. In Italy, however, the divorce laws still remain traditionally based, with divorce's being a relatively complicated and lengthy process. Austria is another European country where the divorce law remains conservative.
The liberalization of divorce laws is not without opposition, particularly in the United States. Indeed, in the US, certain conservative and religious organizations are lobbying for laws which restrict divorce. In 2011, in the US, the Coalition for Divorce Reform was established, describing itself as an organization "dedicated to supporting efforts to reduce unnecessary divorce and promote healthy marriages."
Types of divorce
In some jurisdictions, the courts will seldom apply principles of fault, but might willingly hold a party liable for a breach of a fiduciary duty to his or her spouse (for example, see Family Code Sections 720 and 1100 of the California Family Code). Grounds for divorce differs from state to state in the U.S. Some states have no-fault divorce; some states require a declaration of fault on the part of one partner or both; some state allow either method.
In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect. The terms of the divorce are usually determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses may have agreed to privately (this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable). In absence of agreement, a contested divorce may be stressful to the spouses.
In some other countries,[where?] when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non-judiciary administrative entity. The effect of a divorce is that both parties are free to marry again.
Contested divorces mean that one of several issues are required to be heard by a judge at trial level—this is more expensive, and the parties will have to pay for a lawyer's time and preparation. In such a divorce the spouses are not able to agree on issues for instance child custody and division of marital assets. In such situations, the litigation process takes longer to conclude. The judge controls the outcome of the case. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate mutually acceptable resolution to conflicts. This principle in the United States is called 'Alternative Dispute Resolution' and has gained popularity.
Before the late 1960s, nearly all countries that permitted divorce required proof by one party that the other party had committed an act incompatible to the marriage. This was termed "grounds" for divorce (popularly called "fault") and was the only way to terminate a marriage. Most jurisdictions around the world still require such proof of fault. In the United States, no-fault divorce is available in all 50 states, as is the case with Australia, New Zealand, Canada and other Western countries.
Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion of the parties (working together to get the divorce), or condonation (approving the offense), connivance (tricking someone into committing an offense), or provocation by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.
The grounds for a divorce which a party could raise and need to prove included 'desertion,' 'abandonment,' 'cruelty,' or 'adultery.' The requirement of proving a ground was revised (and withdrawn) by the terms of 'no-fault' statutes, which became popular in many Western countries in the late 1960s and early 1970s. In 'no-fault' jurisdictions divorce can be obtained either on a simple allegation of 'irreconcilable differences,' 'irretrievable break-down', or 'incompatibility' with respect to the marriage relationship, or on the ground of de facto separation.
A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.
Some Western jurisdictions have a no-fault divorce system, which requires no allegation or proof of fault of either party. The barest of assertions suffice. For example, in countries that require "irretrievable breakdown", the mere assertion that the marriage has broken down will satisfy the judicial officer. In other jurisdictions requiring irreconcilable differences, the mere allegation that the marriage has been irreparable by these differences is enough for granting a divorce. Courts will not inquire into facts. A "yes" is enough, even if the other party vehemently says "no".
The application can be made by either party or by both parties jointly.
In jurisdictions adopting the 'no-fault' principle in divorce proceedings, some courts may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support—facts that almost always have considerable weight in fault proceedings. In custody cases, courts might consider factors that may appear like 'fault' based issues but are really related to protection of the child or children. These may include but are not limited to one or both parent's substance abuse, history of violence, cruelty, instability, neglect or endangerment.
- Short marriage (less than 5 years)
- No children (or, in some states, when the spouses have resolved custody and set child support payments for children of the marriage)
- Minimal or no real property (no mortgage)
- Marital property is under a threshold (around $35,000 not including vehicles)
- Each spouse's personal property is under a threshold (typically the same as marital property)
It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children. Though this may be necessary, the courts would prefer parties come to an agreement prior to entering court.
Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them. In the majority of cases, forms are acquired from their respective state websites and a filing fee is paid to the state. Most U.S. states charge between $175 and $350 for a simple divorce filing. Collaborative divorce and mediated divorce are considered uncontested divorces.
Because of additional requirements that must be met, most military divorces are typically uncontested.
In the United States, many state court systems are experiencing an increasing proportion of pro se (i.e., litigants represent themselves without a lawyer) in divorce cases. In San Diego, for example, the number of divorce filings involving at least one self-representing litigant rose from 46% in 1992 to 77% in 2000, and in Florida from 66% in 1999 to 73% in 2001. Urban courts in California report that approximately 80% of the new divorce filings are filed pro se.
Collaborative divorce is a method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.
Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be more cost-effective than other divorce methods, e.g., going to court. Expense, they say, has to be looked at under the headings of financial and emotional. Also, the experience of working collaboratively tends to improve communication between the parties, particularly when collaborative coaches are involved, and the possibility of going back to court post-separation or divorce is minimized. In the course of the collaboration, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot be used in court except by agreement between the parties.
Neither can any of the professional team retained in the course of the collaboration be brought to court. Essentially, they have the same protections as in mediation. There are two exceptions: 1) Any affidavit sworn in the course of the collaboration and vouching documentation attaching to same and 2) any interim agreement made and signed off in the course of the collaboration or correspondence relating thereto. The parties are in control of the time they are prepared to give their collaboration. Some people need a lot of time to complete, whereas others will reach solutions in a few meetings. Collaborative practitioners offer a tightly orchestrated model with meetings scheduled in advance every two weeks, and the range of items to be discussed apportioned in advance of signing up as well as the more open ended process, the clients decide.
Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include either party's attorneys, a neutral attorney, or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all. Some mediation companies, such as Wevorce, also pair clients with counselors, financial planners and other professionals to work through common mediation sticking points. Divorce mediators may be attorneys who have experience in divorce cases, or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters. Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.
Polygamy and divorce
Polygamy is a significant structural factor governing divorce in countries where this is permitted. Little-to-no analysis has been completed to explicitly explain the link between marital instability and polygamy which leads to divorce. The frequency of divorce rises in polygamous marriages compared to monogamous relationships. Within polygamous unions, differences in conjugal stability are found to occur by wife order. There are 3 main mechanisms through which polygamy affects divorce: economic restraint, sexual satisfaction, and childlessness. Many women escape economic restraint through divorcing their spouses when they are allowed to initiate a divorce.
Effects of divorce
Some of the effects associated with divorce include academic, behavioral, and psychological problems. Although this may not always be true, studies suggest that children from divorced families are more likely to exhibit such behavioral issues than those from non-divorced families.
Divorce and relationships
Research done at Northern Illinois University on Family and Child Studies suggests that divorce of couples experiencing high conflict can have a positive effect on families by reducing conflict in the home. There are, however, many instances when the parent–child relationship may suffer due to divorce. Financial support is many times lost when an adult goes through a divorce. The adult may be obligated to obtain additional work to maintain financial stability. In turn, this can lead to a negative relationship between the parent and child; the relationship may suffer due to lack of attention towards the child as well as minimal parental supervision
Studies have also shown that parental skills decrease after a divorce occurs; however, this effect is only a temporary change. “A number of researchers have shown that a disequilibrium, including diminished parenting skills, occurs in the year following the divorce but that by two years after the divorce re-stabilization has occurred and parenting skills have improved”
Some couples choose divorce even when one spouse's desire to remain married is greater than the other spouse's desire to obtain a divorce. In economics this is known as the Zelder Paradox, and is more common with marriages that have produced children, and less common with childless couples.
In an American Psychological Association study of parents’ relocation after a divorce, researchers found that a move has a long-term effect on children. In the first study conducted amongst 2,000 college students on the effects of parental relocation relating to their children's well-being after divorce, researchers found major differences. In divorced families in which one parent moved, the students received less financial support from their parents compared with divorced families in which neither parent moved. These findings also imply other negative outcomes for these students, such as more distress related to the divorce and did not feel a sense of emotional support from their parents. Although the data suggests negative outcomes for these students whose parents relocate after divorce, there is insufficient research that can alone prove the overall well-being of the child A newer study in the Journal of Family Psychology found that parents who move more than an hour away from their children after a divorce are much less well off than those parents who stayed in the same location
Effects of divorce on children
Divorce is associated with diminished psychological well-being in children and adult offspring of divorced parents, including greater unhappiness, less satisfaction with life, weaker sense of personal control, anxiety, depression, and greater use of mental health services. A preponderance of evidence indicates that there is a causal effect between divorce and these outcomes.
Children of divorced parents are also more likely to experience conflict in their own marriages, and are more likely to experience divorce themselves. They are also more likely to be involved in short-term cohabiting relationships, which often dissolve before marriage.
According to Nicholas Wall, former President of the Family Division of the English High Court, "People think that post-separation parenting is easy – in fact, it is exceedingly difficult, and as a rule of thumb my experience is that the more intelligent the parent, the more intractable the dispute. There is nothing worse, for most children, than for their parents to denigrate each other. Parents simply do not realize the damage they do to their children by the battles they wage over them. Separating parents rarely behave reasonably, although they always believe that they are doing so, and that the other party is behaving unreasonably."
Although not the intention of most parents, putting children in the middle of conflict is particularly detrimental. Examples of this are asking children to carry messages between parents, grilling children about the other parent's activities, and putting the other parent down in front of the children. High-conflict divorce or custody cases can experience varying forms of Parental Alienation. The Family Courts often consider Parental Alienation as a form of child abuse. Specific examples of Parental Alienation include brainwashing the child to cease their relationship with the other parent, telling the child that the other parent does not love them, teaching the child to call another adult by a parental name in effort to replace the other parent, limiting communication between the child and the other parent, and limiting quality time between the child and the other parent. If evidence reveals that a parent is actively alienating the child from their other parent, their case for custody can be severely damaged.
Poorly managed conflict between parents increases children's risk of behavior problems, depression, substance abuse and dependence, poor social skills, and poor academic performance. Fortunately, there are approaches by which divorce professionals can help parents reduce conflict. Options include mediation, collaborative divorce, coparent counseling, and parenting coordination.
Children begin to be affected 2–4 years before the separation or divorce even occurs. This time period before the separation tends to be more detrimental for the children than the actual divorce or separation. This can be due to parental conflict and anticipation of a divorce, and decreased parental contact. Many couples believe that by separating, or becoming legally divorced that they are helping their children, and in situations of extreme parental conflict of abuse it most likely will be beneficial.
Exposure to marital conflict and instability, most often has negative consequences for children. Several mechanisms are likely to be responsible. First, observing overt conflict between parents is a direct stressor for children. Observational studies reveal that children react to inter-parental conflict with fear, anger, or the inhibition of normal behavior. Preschool children – who tend to be egocentric – may blame themselves for marital conflict, resulting in feelings of guilt and lowered self-esteem. Conflict between parents also tends to spill over and negatively affect the quality of parents' interactions with their children. Researchers found that the associations between marital conflict and children's externalizing and internalizing problems were largely mediated by parents' use of harsh punishment and parent–child conflict. Furthermore, modeling verbal or physical aggression, parents "teach" their children that disagreements are resolved through conflict rather than calm discussion. As a result, children may not learn the social skills (such as the ability to negotiate and reach compromises) that are necessary to form mutually rewarding relationships with peers.
Girls and boys deal with divorce differently, for instance girls who initially show signs of adapting well, later suffer from anxiety in romantic relationships with men. Studies also showed that girls who were separated from their fathers at a younger age tended to be more angry toward the situation as they aged, anger and sadness were also observed at common feeling in adolescents who had experienced parental divorce.
Academic and socioeconomic
Children who have experienced a divorce frequently have lower academic achievement than children from non-divorced families In a review of family and school factors related to adolescents’ academic performance, it noted that a child from a divorced family is two times more likely to drop out of high school than a child from a non-divorced family. These children from divorced families may also be less likely to attend college, resulting in the discontinuation of their academic career.
Many times academic problems are associated with those children from single-parent families. Studies have shown that this issue may be directly related to the economical influence of divorce. A divorce may result in the parent and children moving to an area with a higher poverty rate and a poor education system all due to the financial struggles of a single parent.
Children of divorced parents also achieve lower levels of socioeconomic status, income, and wealth accumulation than children of continuously married parents. These outcomes are associated with lower educational achievement.
Young men or women between the ages of 7 and 16 who had experienced the divorce of their parents were more likely than youths who had not experienced the divorce of their parents to leave home because of friction, to cohabit before marriage, and to parent a child before marriage.
Divorce often leads to worsened academic achievement in children ages 7–12. The most heightened negative effect being reading test scores. These negative effects tend to persist, and even escalate after the divorce or separation occurs.
Divorce amongst the elderly
According to a New York Times article, “More Americans Rejecting Marriage in 50s and Beyond”, in the past 20 years, the divorce rate has increased over 50% amongst the baby boomers. More and more adults are staying single and according to an analysis of census data conducted at Bowling Green State University in Ohio, they say the divorce numbers will continue to rise. Baby boomers that remain unmarried are five times more likely to live in poverty compared to those who are married. According to the statistics, they will also be three times as likely to receive food stamps, public assistance or disability payments.
Sociologists believe that the rise in the number of older Americans who are not married is a result of factors such as longevity and economics. Women, especially, are becoming more and more financially independent which allows them to feel more secure with being alone. In previous generations, being divorced or single was seen differently now. This has resulted in less pressure for baby boomers to marry or stay married.
In Japan, divorces were on a generally upward trend from the 1960s until 2002 when they hit a peak of 290,000. Since then, both the number of divorces and the divorce rate have declined for six years straight. In 2010, the number of divorces totaled 251,000, and the divorce rate was 1.99 (per 1,000 population).
One study estimated that legal reforms accounted for about 20% of the increase in divorce rates in Europe between 1960 and 2002.
On average, first marriages that end in divorce last about eight years. Of the first marriages for women from 1955 to 1959, about 79% marked their 15th anniversary, compared with only 57% for women who married for the first time from 1985 to 1989. The median time between divorce and a second marriage was about three and a half years.
In 2009, the divorce rate declined.
In 2001, marriages between people of different faiths were three times more likely to be divorced than those of the same faith. In a 1993 study, members of two mainline Protestant religions had a 20% chance of being divorced in 5 years; a Catholic and an Evangelical, a 33% chance; a Jew and a Christian, a 40% chance.
Success in marriage has been associated with higher education and higher age. 81% of college graduates, over 26 years of age, who wed in the 1980s, were still married 20 years later. 65% of college graduates under 26, who married in the 1980s, were still married 20 years later. 49% of high school graduates under 26 years old, who married in the 1980s, were still married 20 years later. 2.9% of adults age 35–39 without a college degree divorced in the year 2009, compared with 1.6% with a college education. A population study found that in 2004 and 2008, liberal-voting states have lower rates of divorce than conservative-voting states, possibly because people in liberal states tend to wait longer before getting married. An analysis of this study found it to be misleading due to sampling at an aggregate level. It revealed that when sampling the same data by individuals, Republican leaning voters are less likely to have a divorce or extramarital affair than Democrat leaning voters and independents.
The National Center for Health Statistics reports that from 1975 to 1988 in the U.S., in families with children present, wives file for divorce in approximately two-thirds of cases. In 1975, 71.4% of the cases were filed by women, and in 1988, 65% were filed by women. It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement without a hearing (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues.
A 2011 study found a 1% increase in the unemployment rate correlated with a 1% decrease in the divorce rate, presumably because more people were financially challenged to afford the legal proceedings.
In Australia, nearly every third marriage ends in divorce. After reaching a peak divorce rate of 2.7 per 1000 residents in 2001, the Australian rate declined to 2.3 per 1000 in 2007.
Divorce of same-sex married couples (United States)
||The examples and perspective in this section deal primarily with the United States and do not represent a worldwide view of the subject. (April 2013)|
Some states permit same-sex marriage. For same-sex couples in the United States, divorce law is in its infancy and is less than clear on how such unions may be legally dissolved in another state. For example, if a same-sex couple is married in a state that recognizes gay marriage but returns to reside in a state that does not, they might find themselves in a situation where their own state, in failing to recognize their union will also fail to enable them to divorce. In addition, splitting up the couple's financial resources may prove to be legally difficult and well as determining which spouse is entitled to the custody of their children.
Rights of spouses to custody of children
Upon dissolution of a same-sex marriage, legal questions remain as to the rights of spouses to custody of the biological children of their spouses. Unresolved legal questions abound in this area.
Child custody policies include several guidelines that determine with whom the child lives following divorce, how time is divided in joint custody situations, and visitation rights. The most frequently applied custody guideline is the ‘‘best interests of the child’’ standard, which takes into account the parents’ preferences, the child’s preferences, the interactions between parents and children, children’s adjustment, and all family members’ mental and physical health.
Same-sex divorce in a state that does not recognize same-sex marriage
Since same-sex marriages are not recognized in a multitude of states, couples who are married in states that do recognize same-sex marriages will find themselves in a position of being precluded from dissolving their marriages in the states in which they live. When this happens, legal questions will remain unanswered as to which state laws will be applicable to determine the rights of each divorcing partner. In addition, special problems will present themselves when same-sex couples cannot be divorced in states that do recognize same sex marriage because they are not residents of such states.
The ancient Athenians liberally allowed divorce, but the person requesting divorce had to submit the request to a magistrate, and the magistrate could determine whether the reasons given were sufficient.
Divorce was rare in early Roman culture but as their empire grew in power and authority Roman civil law embraced the maxim, "matrimonia debent esse libera" ("marriages ought to be free"), and either husband or wife could renounce the marriage at will. Though civil authority rarely intervened in divorces, social and familial taboos guaranteed that divorce occurred only after serious circumspection. The Christian emperors Constantine and Theodosius restricted the grounds for divorce to grave cause, but this was relaxed by Justinian in the sixth century.
After the fall of the Roman Empire, familial life was regulated more by ecclesiastical authority than civil authority. By the ninth or tenth century, the divorce rate had been greatly reduced under the influence of the Church, which considered marriage a sacrament instituted by God and Christ indissoluble by mere human action.
Although divorce, as known today, was generally prohibited after the tenth century, separation of husband and wife and the annulment of marriage were well-known. What is today referred to as "separate maintenance" (or "legal separation") was termed "divorce a mensa et thoro" ("divorce from bed-and-board"). The husband and wife physically separated and were forbidden to live or cohabit together; but their marital relationship did not fully terminate. Civil courts had no power over marriage or divorce. The grounds for annulment were determined by Church authority and applied in ecclesiastical courts. Annulment was for canonical causes of impediment existing at the time of the marriage. "For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio." The Church held that the sacrament of marriage produced one person from two, inseparable from each other: "By marriage the husband and wife are one person in law: that is, the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything." Since husband and wife became one person upon marriage, that oneness could only be annulled if the parties improperly entered into the marriage initially.
Secularisation in Europe
After the Reformation, marriage came to be considered a civil contract in the new Protestant regions of Europe, and on that basis civil authorities gradually asserted their power to decree a "divortium a vinculo matrimonii", or "divorce from all the bonds of marriage".
Since no precedents existed defining the circumstances under which marriage could be dissolved, civil courts heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and considered divorce to be contrary to public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred vow to the "innocent spouse". If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage".
Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment, adultery, or "extreme cruelty". An exception to this trend was the Anglican Church, which maintained the doctrine of marital indissolubility.
During the English Civil War, the Puritans briefly passed a law that divested marriage of all sacrament, leaving it as a secular contract that could be broken. John Milton wrote four divorce tracts from 1643–1645 that argued for the legitimacy of divorce on grounds of spousal incompatibility. His ideas were ahead of their time; arguing for divorce at all, let alone a version of no-fault divorce, was extremely controversial and religious figures sought to ban his tracts. In 1670 a precedent was first set with an Act of Parliament allowing Lord John Manners to divorce his wife, Lady Anne Pierpon, and until the passage of the Matrimonial Causes Act 1857, divorce could only be obtained through a specific Act of Parliament.
The move towards secularisation and liberalisation was reinforced by the individualistic and secular ideals of the Enlightenment. The Enlightened absolutist, King Frederick II ("the Great") of Prussia enshrined a new divorce law in 1752, in which marriage was declared to be a purely private concern, allowing divorce to be granted on the basis of mutual consent. This new system heavily influenced the law in neighbouring Austria under Emperor Joseph II, where it was applied to all non-Catholic Imperial subjects. Divorce was legalised in France after the French revolution on a similar basis, although the legal order of the ancien regime was reinstated at the Bourbon restoration of 1816. The trend in Europe throughout the 19th century, was one of increased liberalisation; by the mid-19th century divorce was generally granted by civil courts in the case of adultery.
In Britain before 1857 wives were under the economic and legal protection of their husbands, and divorce was almost impossible. It required a very expensive private act of Parliament costing perhaps £200, of the sort only the richest could possibly afford. It was very difficult to secure divorce on the grounds of adultery, desertion, or cruelty. The first key legislative victory came with the Matrimonial Causes Act of 1857, which passed over the strenuous opposition of the highly traditional Church of England. The new law made divorce a civil affair of the courts, rather than a Church matter, with a new civil court in London handling all cases. The process was still quite expensive, at about £40, but now became feasible for the middle class. A woman who obtained a judicial separation took the status of a feme sole, with full control of her own civil rights. Additional amendments came in 1878, which allowed for separations handled by local justices of the peace. The Church of England blocked further reforms until the final breakthrough came with the Matrimonial Causes Act 1973.
Divorce rates increased markedly during the twentieth century in developed countries, as social attitudes towards family and sex changed dramatically. Among the nations in which divorce has become commonplace are the United States, Canada, Australia, Germany, New Zealand, Scandinavia, and the United Kingdom.
In the Edo Period (1603–1868), only husbands could divorce their wives by writing letters of divorce. But actually, their relatives or marriage arrangers often kept these letters and tried to restore the marriages. It was not allowed for wives to divorce their husbands. Some wives were able to gain sanctuary in certain Shinto "divorce temples" for several years, and were able to obtain a divorce thereby. In 19th century Japan, at least one in eight marriages ended in divorce.
There are four types of divorce in Japan: Divorce by agreement in which the divorce is mutual, divorce by mediation which happens in family court, divorce by decision of family court that takes place when a couple cannot complete a divorce through mediation, and divorce by judgment of district court.
On an all-India level, the Special Marriage Act was passed in 1954, is an inter-religious marriage law permitting Indian nationals to marry and divorce irrespective of their religion or faith. The Hindu Marriage Act, in 1955 which legally permitted divorce to Hindus and other communities who chose to marry under these acts. The Indian Divorce Act 1869 is the law relating to the divorce of person professing the Christian religion. Divorce can be sought by a husband or wife on grounds including adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, and leprosy. Divorce is also available based on mutual consent of both the spouses, which can be filed after at least one year of separated living. Mutual consent divorce can not be appealed, and the law mandates a minimum period of six months (from the time divorce is applied for) for divorce to be granted. While a Muslim husband can unilaterally bring an end to the marriage by pronouncing talaq, Muslim women must go to court, claiming any of the grounds provided under the Dissolution of Muslim Marriage Act.
Official figures of divorce rates are not available, but it has been estimated that 1 in 100 or another figure of 11 in 1,000 marriages in India end up in divorce.
Various communities are governed by specific marital legislation, distinct to Hindu Marriage Act, and consequently have their own divorce laws:
- The Parsi Marriage and Divorce Act, 1936
- The Dissolution of Muslim Marriage act, 1939
- The Foreign Marriage Act, 1969
- The Muslim Women (Protection of Rights on Divorce) Act, 1986
An amendment to the marriage laws to allow divorce based on "irretrievable breakdown of marriage" (as alleged by one of the spouses) is under consideration in India. In June 2010, the Union Cabinet of India approved the Marriage Laws (Amendment) Bill 2010, which, if cleared by Parliament, would establish "irretrievable breakdown" as a new ground for divorce. Under the proposed amendment, the court before proceeding to the merits of the case must be satisfied by the evidences produced that parties have been living apart for a continuous period of not less than three years immediately preceding the presentation of the petition.
Islam ( Muslim Law )
In Islamic law and marital jurisprudence, divorce is referred to as talaq. Khula is the right of a woman in Islam to divorce or separate from her husband. The triple talaq is a mechanism for divorce which exists in Sunni sect of Islam while rejected by the Shia sect. Talaq (conflict) deals with the relationship between religious and secular systems for terminating the marriage in the conflict of laws.
According to Yossef Rapoport, in the 15th century, the rate of divorce was higher than it is today in the modern Middle East, which has generally low rates of divorce. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.
Muslim Law References/ Suggested Readings
Divorce as a means of terminating marriage is illegal for all Filipinos except Filipino Muslims. There is only civil annulment after a lengthy legal separation. The process is costly and long. There are many legally married couples in extramarital relations, even without a divorce law. Code of Muslim Personal Laws of the Philippines, known as Presidential Decree (PD) No. 1083,Title II- Marriage and Divorce,Chapter 3-Divorce allows for divorce recognized by the state. There are 2 sharia courts that are part of the Philippines Judiciary that hear these cases.
On July 27, 2010, Gabriela Women's Party filed in Congress House Bill No 1799, or the Divorce Bill of the Philippines, as one of many attempts to introduce pro-divorce legislation. Senator Pia Cayetano has filed a separate divorce bill in the Philippines Senate.
Causes of divorce
An annual study in the UK by management consultants Grant Thornton, estimates the main proximal causes of divorce based on surveys of matrimonial lawyers.
The main causes in 2004 were:
- Adultery; Extramarital sex; Infidelity – 27%
- Domestic violence – 17%
- Midlife crisis – 13%
- Addictions, e.g. alcoholism and gambling – 6%
- Workaholism – 6%
According to this survey, husbands engaged in extramarital affairs in 75% of cases; wives in 25%. In cases of family strain, wives' families were the primary source of strain in 78%, compared to 22% of husbands' families. Emotional and physical abuse were more evenly split, with wives affected in 60% and husbands in 40% of cases. In 70% of workaholism-related divorces it was husbands who were the cause, and in 30%, wives. The 2004 survey found that 93% of divorce cases were petitioned by wives, very few of which were contested. 53% of divorces were of marriages that had lasted 10 to 15 years, with 40% ending after 5 to 10 years. The first 5 years are relatively divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce.
Social scientists study the causes of divorce in terms of underlying factors that may possibly motivate divorce. One of these factors is the age at which a person gets married; delaying marriage may provide more opportunity or experience in choosing a compatible partner. Wage, income, and sex ratios are other such underlying factors that have been included in analyses by sociologists and economists.
Cohabitation prior to marriage is associated with higher divorce rates, which is called the cohabitation effect. Evidence suggests that this is partly due to selection (people more likely to divorce being more likely to cohabit, and cohabiting couples being more likely to marry with low levels of commitment) as well as the effect of cohabitation itself on the marital union. There is a consensus among researchers that both of these factors explain the cohabitation effect.
One of the biggest divorce settlements reported to date, is that of English financier Sir Chris Hohn who was asked to pay £337m to his American wife Jamie Cooper-Hohn after a High Court ruling.
Religion and divorce
In some countries (commonly in Europe and North America), the government defines and administers marriages and divorces. While ceremonies may be performed by religious officials on behalf of the state, a civil marriage and thus, civil divorce (without the involvement of a religion) is also possible. Due to differing standards and procedures, a couple can be legally unmarried, married, or divorced by the state's definition, but have a different status as defined by a religious order. Other countries use religious law to administer marriages and divorces, eliminating this distinction. In these cases, religious officials are generally responsible for interpretation and implementation.
Islam allows divorce, and it can be initiated by either the husband or the wife. However, the initiations are subject to certain conditions and waiting periods, which are meant to force the initiating party to reconsider.
Dharmic religions do not allow divorce. Christian views of divorce vary, with Catholic teaching allowing only annulment, but most other denominations discouraging but allowing divorce. Jewish views of divorce differ, with Reform Judaism considering civil divorces adequate. Conservative and Orthodox Judaism require that the husband grant his wife a divorce in the form of a get.
The Millet System, where each religious group regulates its own marriages and divorces, is still present in varying degrees in some post−Ottoman countries like Iraq, Syria, Jordan, Lebanon, Israel, the Palestinian Authority, Egypt, and Greece. Several countries use sharia (Islamic law) to administrate marriages and divorces for Muslims. Thus, Marriage in Israel is administered separately by each religious community (Jews, Christians, Muslims, and Druze), and there is no provision for interfaith marriages other than marrying in another country. For Jews, marriage and divorce are administered by Orthodox rabbis. Partners can file for divorce either in rabbinical court or Israeli civil court.
Gender and divorce
According to a study published in the American Law and Economics Review, women have filed slightly more than two-thirds of divorce cases in the United States. This trend is mirrored in the UK where a recent study into web search behavior found that 70% of divorce inquiries were from women. These findings also correlate with the Office for National Statistics publication "Divorces in England and Wales 2012 which reported that divorce petitions from women outnumber those from men by 2 to 1.
Regarding divorce settlements, according to the 2004 Grant Thornton survey in the UK, women obtained a better or considerably better settlement than men in 60% of cases. In 30% of cases the assets were split 50-50, and in only 10% of cases did men achieve better settlements (down from 24% the previous year). The report concluded that the percentage of shared residence orders would need to increase in order for more equitable financial divisions to become the norm.
Some jurisdictions give unequal rights to men and women when filing for divorce.
For couples to Conservative or Orthodox Jewish law (which by Israeli civil law includes all Jews in Israel), the husband must grant his wife a divorce through a document called a get. If the man refuses, the woman can appeal to a court or the community to pressure the husband. A woman whose husband refuses to grant the get or who is missing is called an agunah, is still married, and therefore cannot remarry. Under Orthodox law, children of an extramarital affair involving a married Jewish woman are considered mamzerim (illegitimate) and cannot marry non-mamzerim.
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