Divorce

From New World Encyclopedia


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Family law
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Divorce or dissolution of marriage is the ending of a marriage before the death of either spouse. It can be contrasted with an annulment, which is a declaration that a marriage is void, as if it never existed.

A divorce must be certified by a court of law, as a legal action is needed to dissolve the prior legal act of marriage. The terms of the divorce are also determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses have agreed on privately. Often, however, the spouses disagree about the terms of the divorce, which can lead to stressful (and expensive) litigation. A less adversarial approach to divorce settlements has emerged in recent years, known as mediation, which attempts to negotiate mutually acceptable resolutions to the ending of the marriage without the need for litigation.

 

Divorce has religious implications, since for most religions marriage is a sacred union. The dissolution of such unions is therefore generally regarded unfavorably, if not outright prohibited. In recent times with the secularization of society, the subject of divorce as a social phenomenon has become an important research topic in sociology.

Overview

Grounds for divorce vary widely from country to country. Though divorce laws vary between jurisdictions, there are two basic approaches to divorce: fault based and no-fault based.

Marilyn Monroe signing divorce papers with celebrity attorney Jerry Giesler.

Marriage may be seen as a contract, a status, or a combination of these.[1] 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, divorce is purely "no fault." Many jurisdictions offer both the option of a "no fault" divorce as well as an "at fault" divorce.

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.

Divorce laws are not static; they often change reflecting evolving social norms of societies. In the twenty-first century, many European countries have made changes to their divorce laws, in particular by reducing the length of the necessary periods of separation. However, the liberalization of divorce laws is not without opposition.

Types

Grounds for divorce differ according to jurisdiction. 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. In absence of agreement, a contested divorce may be stressful to the spouses. Less adversarial approaches to divorce settlements include mediation and collaborative divorce settlement, which negotiate mutually acceptable resolution to conflicts.

At-fault divorce

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.

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.

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. The principle of "comparative rectitude" is used to determine which spouse is less at fault when both spouses are guilty of breaches that would justify a divorce.[2]

Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted.

Collaborative divorce

Collaborative divorce is a method for divorcing couples to come to an agreement on the issues pertaining to their divorce. 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 or divorce coaches. 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. Collaborative divorce can be more cost-effective than other divorce methods, such as going to court.[3] The expense of a divorce is both financial and emotional. 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.

Some countries allow two persons to file an electronic request for no-fault collaborative divorce in a non judiciary administrative entity.[4] In specific cases, with no children, real property, alimony, or common address, can be completed very quickly, in Portugal, for example, the process can be completed within one hour.[5]

Contested divorce

Contested divorce means that one of several issues are required to be heard and decided by a judge at trial level. In a contested divorce, the spouses are not able to agree on issues such as child custody and division of marital assets, and the litigation process may take considerable time to conclude. This is more expensive, and the parties have to pay for lawyers' time and preparation work.

Mediated divorce

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. 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. 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 mediator without attorneys present at all.

Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The lack of formality compared to the courtroom allows for both parties to present their views freely, which can result in solutions that are acceptable to all. This increases the adherence rate to mediated agreements when compared with court orders. Some countries have instituted a law which requires divorcing couples to consider mediation before applying to court.[6]

No-fault divorce

Most 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. "Incompatibility" is sufficient to grant a divorce.[7] The application can be made by either party or by both parties jointly.

In jurisdictions adopting the no-fault principle, some courts may still take into account the fault of the parties when determining some aspects of the content of the divorce decree, such as its terms for the division of property and debts and the absence, or amount, of spousal support. Provisions related to child custody are determined using a different fundamental standard, that of the child's or children's best interests. Behaviors that could constitute marital fault (violence, cruelty, endangerment, neglect, or substance abuse) may qualify as factors to be considered when determining child custody for the independent reason that they provide evidence as to what arrangement is in the child's or children's best interests.

Summary divorce

A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements or can agree on key issues beforehand.

Key factors:

  • Short duration of marriage (less than five years)
  • Absence of children (or, in some jurisdictions, prior allocation of child custody and of child-support direction and amount)
  • Absence or minimal value of real property at issue and any associated encumbrances such as mortgages
  • Absence of agreed-as-marital property above a given value threshold (around $35,000 not including vehicles)
  • Absence, with respect to each spouse, of claims to personal property above a given value threshold, typically the same as that for total marital property, with such claims including claims to exclusive previous ownership of property described by the other spouse as marital.

Uncontested divorce

Uncontested divorce is when 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. Collaborative divorce and mediated divorce are considered uncontested divorces. Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them.

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 to come to an agreement prior to entering court.

History

Divorce existed in antiquity, dating at least back to ancient Mesopotamia.

Greco-Roman culture

Roman married couple.

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. The Christian emperors Constantine and Theodosius restricted the grounds for divorce to grave cause, but this was relaxed by Justinian in the sixth century.

Medieval Europe

After the fall of the Roman Empire, familial life was regulated more by ecclesiastical authority than civil authority.

The Catholic and Orthodox Churches had differing views of divorce. The Orthodox Church recognized that there are rare occasions when it is better that couples separate. Marriage as an act of holiness should be indissoluble. However, that is the ideal and fallen sinful human beings do not always succeed in fulfilling the ideal of marriage. Adultery or prolonged absence of one of the partners can be recognized by the Orthodox Church as a failed marriage:

The Church recognizes that there are cases in which marriage life has no content or may even lead to loss of the soul. The Holy John Chrysostom says in this regard that: “better to break the covenant than to lose one’s soul.” Nevertheless, the Orthodox Church sees divorce as a tragedy due to human weakness and sin.[8]

Thus, permitting remarriage is an act of compassion of the Church towards sinful humankind.[8]

Under the influence of the Catholic Church, which considered marriage a sacrament instituted by Jesus Christ and indissoluble by mere human action, the divorce rate was greatly reduced by the tenth century.

Civil courts had no power over marriage or divorce. The Catholic 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."[9] Since husband and wife became one person upon marriage, recognition of that oneness could be rescinded only on the grounds that the unity never existed to begin with, in other words, that the proclamation of marriage was erroneous and void from the start.

The grounds for annulment were determined by a Catholic 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."[9][10]

Although divorce was generally prohibited in Catholic lands after the tenth century, in addition to annulment, separation of husband and wife was also 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.[10]

Post-Reformation Europe

Henry VIII of England broke with the Catholic Church in order to obtain an annulment.

After the Reformation, marriage came to be considered a contract in the newly 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 they had set down. As the civil courts assumed the power to dissolve marriages, they strictly construed the circumstances under which they would grant a divorce,[9] 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."[10]

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 to grounds which exemplified violation of that vow, such as abandonment, adultery, or "extreme cruelty."[10] 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 in 1643–1645 that argued for the legitimacy of divorce on grounds of spousal incompatibility. His ideas were ahead of their time and extremely controversial; religious figures sought to ban his tracts.[11]

Joséphine, first wife of Napoleon, obtained the civil dissolution of her marriage under the Napoleonic Code of 1804.

The move towards secularization and liberalization was reinforced by the individualistic and secular ideals of the Enlightenment. The Enlightened absolutist, King Frederick II ("the Great") of Prussia decreed 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 attitude heavily influenced the law in neighboring Austria under Emperor Joseph II, where it was applied to all non-Catholic Imperial subjects.[12] Divorce was legalized 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 nineteenth century was one of increased liberalization and secularization.

Divorce rates increased markedly during the twentieth century as social attitudes towards family and sex changed dramatically, and divorce became commonplace in many European nations.

Japan

In the Edo Period (1603–1868), husbands could divorce their wives by writing letters of divorce. Frequently, their relatives or marriage arrangers kept these letters and tried to restore the marriages. Wives could not divorce their husbands. Some wives were able to gain sanctuary in certain Shinto "divorce temples." After a wife had spent three years in a temple, her husband was required to divorce her.[13] In nineteenth century Japan, at least one in eight marriages ended in divorce.

Contemporary divorce laws

The only countries that do not allow divorce are the Philippines and the Vatican City. In the Philippines, divorce for non-Muslim Filipinos is not legal unless the husband or wife is an alien and satisfies certain conditions. The Vatican City is an ecclesiastical state, which has no procedure for divorce.

Different societies and legal jurisdictions have varying attitudes towards divorce. In many countries, cultural and legal changes in the twentieth century led to a significant increase in divorce rates.

Americas

Brazil

Brazilian couples can request a divorce at a notary's office when there is a consensus, the couple has been separated for more than a year, and have no underage or special-needs children. The divorcees need only present their national IDs, marriage certificate, and pay a small fee to initiate the process, which is completed in one or two weeks.

Canada

Divorce was not recognized in Canada until the 1960s. 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.

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.[14]

United States

Divorce in the United States is a matter of state rather than federal law. However, federal legislation affects the rights and responsibilities of divorcing spouses. For example, federal welfare reform mandated the creation of child support guidelines in all 50 states in the 1980s; the IRS established rules on the deductibility of alimony; and federal bankruptcy laws prohibit discharging in bankruptcy of alimony and child support obligations. The laws of the state(s) of residence at the time of divorce govern, not those of the location where the couple was married. All states recognize divorces granted by any other state. All states impose a minimum time of residence, Nevada currently being the shortest at 6 weeks. Typically, a county court’s family division judges petitions for dissolution of marriages.

No-fault divorce is possible in all states. In some states fault grounds remain, but all states except New York now provide other grounds as well, variously termed irreconcilable differences, irremediable breakdown, loss of affection, or similar. For such grounds no fault need be proven and little defense is possible. However, most states require some waiting period, 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, alimony, and so on. States vary in the admissibility of such evidence for those decisions. In any case, a no-fault divorce can be arranged far more easily, although the terms of the divorce can be and often are contested with respect to child-related matters and finances. Ultimately most cases are settled by the parties before trial.

States vary in their rules for division of assets in a divorce. Some states are "community property" states, while others are "equitable distribution" states. "Community property" states start with the presumption that 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. Attempt is made to assure the welfare of any minor children generally through their 21st birthday. Thus, the spouse given custody (or the spouse with the greater share of residence time in the case of joint custody), may receive assets to compensate their greater child-care expenses. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Depending on the state, an equitable or equal division of assets is then sought.

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. 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. For example, couples who choose to undertake a covenant marriage may be required to undergo counseling before a divorce can be granted, or to submit their conflicts to mediation.

Divorces obtained by US couples in a different country or jurisdiction

Due to the complex divorce procedures required in some states, couples may seek divorces from other jurisdictions that have easier and quicker processes. There are four main reasons that people look to another jurisdiction for a divorce:

  • A state may not allow "irreconcilable differences" as a legal cause for divorce, and without it generally fault is required (often with strict legal requirements) or a separation agreement in force for a year
  • A state may have complex and long residency requirements
  • A state take a long time to issue a finalized divorce, anywhere from 3 months to a year or even several in unique circumstances.
  • Finally, some people are simply out to get around the financial hardship of a divorce, and get a divorce from a jurisdiction that allows fast uncontested divorces that offer little or no spousal support to the defendant.

Divorces granted by other countries are generally recognized by the United States as long as no person's rights were infringed upon. The most notable in this situation is the notion of "due process," which is required by the Constitution of the United States and thus is not flexible. This means that the spouse whom is the defendant in the case must be notified of the proceedings and be given a certain time frame to respond to the allegations and state their case. This is only the case in a contested divorce, as in an uncontested divorce both spouses agree to the terms and sign off on the divorce.

Asia

India

In India, the Special Marriage Act, passed in 1954, is an inter-religious marriage law permitting Indian nationals to marry and divorce irrespective of their religion or faith. The 1955 Hindu Marriage Act legally permitted divorce for Hindus and other communities who chose to marry under these acts.

An amendment to the marriage laws allows divorce based on "irretrievable breakdown of marriage" (as alleged by one of the spouses).[15]

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[16]
  • The Dissolution of Muslim Marriage act, 1939[17]
  • The Foreign Marriage Act, 1969[18]
  • The Muslim Women (Protection of Rights on Divorce) Act, 1986[19]

Japan

In Japan, there are four types of divorce:

  • Divorce by agreement (kyogi rikon), based on mutual agreement.
  • Divorce by mediation in a family court (chotei rikon), completed by applying for mediation by the family court (for cases in which divorce by mutual agreement cannot be reached).
  • Divorce by decision of the family court (shimpan rikon), which is divorce completed by family court decision when divorce cannot be established by mediation.
  • Divorce by judgment of a district court (saiban rikon). If divorce cannot be established by the family court, then application is made to the district court for a decision (application for arbitration is a prerequisite). Once the case is decided, the court will issue a certified copy and certificate of settlement, to be attached to the Divorce Registration.[20]

Divorce by mutual agreement 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 the conditions of the divorce, such as child custody, then they must use one of the other three types of divorce.

Philippines

Philippine law, in general, does not provide for divorce inside the Philippines. Annulment is the only recourse a Filipino citizen has under normal circumstances.[21]

Article 26 of the Family Code of the Philippines does allow for divorce from a non-Filipino who seeks the divorce in their own country:

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.[22]

Europe

In Europe, divorce laws differ from country to country, reflecting differing legal and cultural traditions. In some countries, divorce can be obtained only 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, such as in the Netherlands, to quite restrictive ones, such as in Poland.

Separation for a minimum period, which may be as little as one year, constitutes grounds for divorce in some European countries. Note that "separation" does not necessarily mean separate residences – in some jurisdictions, living in the same dwelling but leading a separate life (eating, sleeping, socializing, and so forth separately) is sufficient to constitute de facto separation.

In the early twenty-first century, many European countries made changes to their divorce laws, in particular by reducing the length of the necessary periods of separation. Some countries have completely overhauled their divorce laws, allowing no-fault divorce or alternatives to court proceedings, such as negotiations with the participation of an advocate or agreement made before the registrar of Public Registry Office.

England and Wales

In England and Wales, divorce can be obtained on the ground of living apart for more than 2 years (with consent); and living apart for more than 5 years (without consent); in addition to these no-fault grounds, the traditional grounds of adultery, desertion, and unreasonable behavior are also grounds for divorce.[23]

Divorce is commenced by the issuing of a petition, which must be acknowledged by the other party. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted nisi, and 6 weeks and 1 day later an application is made for a decree absolute which, when approved by the court, finalizes the divorce.

France

The French Civil code (modified on January 1, 2005), permits divorce for foue different reasons:

  1. mutual consent (which comprises over 60 percent of all divorces)
  2. acceptance
  3. separation of 2 years
  4. and due to the "fault" of one partner (accounting for most of the other 40 percent).

Italy

Presumably due to the strong influence of the Roman Catholic Church, divorce was all but unobtainable in the Italian Republic and its predecessor states until December 1, 1970 when the civil code of Italy was amended to permit the granting of divorces by the civil courts.

Divorce in Italy may be obtained on one of the following grounds:

  1. After the court has approved consensual separation
  2. after judicial separation; when one spouse has been sentenced for certain criminal offenses
  3. when one spouse is a foreign citizen and has obtained a divorce or has married again abroad
  4. or when the marriage has not been consummated.[24]

Republic of Ireland

The largely Catholic population of the Republic of Ireland has tended to be averse to divorce, which was prohibited by the 1937 Constitution. New regulations came into effect in 1997, making divorce possible under certain circumstances. In comparison to other countries, it is difficult to obtain a divorce in the Republic of Ireland.

A couple must be separated for at least 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 recognized by the Republic only if the couple was living in that country; it is not therefore possible for a couple to travel abroad in order to obtain a divorce.

Scotland

No-fault divorce with consent is permitted after a period of separation. Actions for divorce in Scotland may be brought in either the Sheriff Court or the Court of Session. In practice, it is only actions in which unusually large sums of money are in dispute, or with an international element, that are raised in the Court of Session. If, as is usual, there are no contentious issues, it is not necessary to employ a lawyer.

Financial consequences of divorce are dealt with by the Family Law (Scotland) Act 1985. This provides for a division of matrimonial property on divorce. Matrimonial property is generally all the property acquired by the spouses during the marriage but before their separation, as well as housing and furnishings acquired for use as a home before the marriage, but excludes property gifted or inherited. The general approach of the Scottish courts is to settle financial issues by the award of a capital sum if at all possible, allowing for a ‘clean break’ settlement, but in some cases periodical allowances may be paid, usually for a limited period. Fault is not normally taken into account.

Decisions as to parental responsibilities, such as residence and contact orders, are dealt with under the Children (Scotland) Act 1995. The guiding principle is the best interests of the child, although the starting assumption is in practice that it is in a child’s best interests to maintain contact with the non-custodial parent.

Global issues

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, both concerning property, and also custody of any children. One or both parties may seek to divorce in a country which has jurisdiction over them. Normally there will be a residence requirement in the country in which the divorce takes place.

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.

Religious/cultural attitudes

Religions have varied attitudes towards divorce, ranging from prohibited to acceptable behavior.

Christianity

Cartoon parodying the 1906 divorce proceedings of Anna Gould and Boni de Castellane in Paris, France. Boni de Castellane then sought an annulment from the Vatican so that he could be free to remarry in the Church. The annulment case was not finally settled until 1924, when the highest Vatican tribunal upheld the validity of the marriage and denied the annulment

Most Christian churches treat divorce negatively. However, different denominations vary in their toleration of it.

The Roman Catholic Church treats all consummated sacramental marriages as permanent during the life of the spouses, and therefore does not allow remarriage after a divorce if the other spouse still lives and the marriage has not been annulled. However, divorced Catholics are still welcome to participate fully in the life of the church so long as they have not remarried against church law, and the Catholic Church generally requires civil divorce or annulment procedures to have completed before it will consider annulment cases. Other Christian denominations, including the Eastern Orthodox Church and many Protestant churches, will allow both divorce and remarriage even with a surviving former spouse, at least under certain conditions.

Dharmic Religions

Dharmic religions (religions in India, do not have a concept of divorce. However, the Hindu Marriage Act, 1955 applicable to Hindus, Buddhists, Sikhs, and Jains in India does have provisions for divorce under some circumstances.

Islam

In Islam, divorce is allowed, though discouraged. Divorce is considered a last resort after all possible efforts have been made to continue the marriage. Islam considers marriage to be a legal contract; and the act of obtaining a divorce is essentially the act of legally dissolving the contract. According to Shariah (Islamic Law), there is a required waiting period before a divorce is considered valid. After three divorces, the man and the women are not allowed to remarry, unless under specific circumstances.

Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are talaq (repudiation), khulʿ (mutual divorce), judicial divorce and oaths.

No-fault divorce is allowed in Muslim societies, although normally only with the consent of the husband. 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 and is normally required to give one of several specific justifications. She is required to offer proof that her husband had not fulfilled his responsibilities based on reasons such as physical or mental disorder, an inability to consummate the marriage, or desertion.

In the Muslim world, legislation concerning divorce varies from country to country. Different Muslim scholars can have slightly differing interpretations of divorce in Islam, such as triple talaq (divorce by uttering of the Talaq word thrice by the husband). In 2017, the Supreme Court of India banned the Islamic practice of Triple Talaq, declaring it unconstitutional. The landmark Supreme Court of India judgment was welcomed by women activists across India.[25]

Judaism

Judaism recognized the concept of "no-fault" divorce thousands of years ago. Judaism has always accepted divorce as a fact of life (for example, see Deuteronomy chapters 22 and 24), albeit an unfortunate one. Judaism generally maintains that it is better for a couple to divorce than to remain together in a state of constant bitterness and strife.

Because divorce nullifies one the holiest connections that can exist in the Universe (similar to a connection between a person and God), and because of the danger of the birth of illegitimate children (mamzerim), if the process is not performed properly, divorce is subject to many complex laws and is highly regulated.

A get or gett is a document in Jewish religious law which effectuates a divorce between a Jewish couple. The requirements for a get include that the document be presented by a husband to his wife. The essential part of the get is a very short declaration: "You are hereby permitted to all men." The effect of the get is to free the woman from the marriage, and consequently she is free to marry another and that the laws of adultery no longer apply. The get also returns to the wife the legal rights that a husband held in regard to her.

Halakha (Jewish law) requires the following specific formalities for a get to be considered valid:

  • A divorce document must be written;[26] this is usually done by a sofer (professional religious scribe). It must have been written on the explicit instruction and free-willed approval of the husband, with the specific intention that it is to be used by the man and for the specific woman. It cannot be initially written with blanks to be filled in later.
  • It must be delivered to the wife, whose physical acceptance of the get is required to complete and validate the divorce process.[26]
  • There are certain detailed requirements relating to the legal and religious nature of the get itself. For example, being written on a fresh document with no possibility of erasing the text.

Any deviation from these requirements invalidates the get and the divorce procedure.

Causes of divorce

Studies have found a number of reasons couples divorce. The following are common:[27]

  • Lack of Commitment - often evidenced through lack of effort in saving the marriage
  • Incompatibility and Growing Apart - irreconcilable differences (religious, sexual, values)
  • Communication Problems - frequent arguments or not being able to talk to each other
  • Extramarital Affairs - adultery is common but often not the main reason for divorce
  • Financial Incompatibility: Money Disagreements
  • Substance Abuse - alcoholism or drug addiction
  • Domestic Abuse - domestic violence, including verbal, physical, and emotional abuse
  • Conflicts Over Family Responsibilities - attitudes to child rearing or household responsibilities

Social scientists studying the causes of divorce have found one of the underlying factors that may possibly motivate divorce to be 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 found to increase likelihood of divorce.[28]

Effects of divorce

There are significant emotional, financial, medical, and psychological effects of divorce. These effects are not limited to the former spouses but also have significant impacts on their children.

Sociological studies have pointed to a variety of long-term economic, social, physical, and mental health consequences of divorce, although the full extent of such effects remains hotly debated. All studies suffer from an inherent methodological weakness which researchers have not yet found a solution to: establishing the relevant baseline for comparison. By definition, all divorces are of unhappy couples; meanwhile, those who do not divorce are some mix of happy couples and of unhappy ones who stayed married. Comparisons of life outcomes or well-being along the simple divorced/not divorced axis will therefore always show poorer outcomes for the group which is composed entirely of unhappy couples, demonstrating simply that being part of a happy couple is better than being part of an unhappy one.

Researchers have reported that in cases of extremely high conflict, divorce can be positive. Such cases would include physical aggression or threats of physical aggression or other forms of domestic violence neglect, and substance abuse. Nevertheless, the research findings indicate that divorce affects people's lives in ways that are generally negative.

Emotional effects

Divorce is often one of the most traumatic periods in a person's life. Divorce is often adversarial, with one spouse treated like the enemy by the other spouse. Divorce complaints, especially when complicated by child custody, are often laden with unfounded exaggerations of facts and false accusations. Separation and divorce is often associated with heart wrenching emotions, unspeakable sadness, depression, anxiety, and much more.[29]

Financial effects

Divorce leads to the creation of two households rather than one, with consequent increased costs. All parties suffer these effects. Divorce is the number one contributor to bankruptcy in the United States.

In many countries women suffer financially as a result of divorce due to lower earning potential, and to their greater historical role in rearing children.[30] They more often obtain exclusive custody of children after the divorce, reducing their ability to pursue high-paying employment. Child support collection can be quite difficult: Some fathers feel that they only have an obligation towards their children and not their mother (who may have initiated an unwanted divorce), some may not want to meet their obligation towards their children, and others, while intending to meet their obligation may not be able to fulfill it. Many national and local governments provide some kind of welfare system for divorced mothers and their children.

Men are also financial victims of divorce. Court-ordered alimony and child support are often pegged to large percentages of the higher-earning spouse's income, leading to financial stress. Such obligations can make it impossible for paying spouses to remarry, and if they do remarry, the law often puts the payer's prior obligations before his and his new family's needs.

Division of assets can be complex and often one spouse is left with significantly reduced property and financial assets compared to during their married life. A prenuptial agreement before marriage can reduce conflict over financial division in a divorce, although courts can overturn these agreements as too severely imbalanced, signed under duress, or violating the best interests of the children.

Another significant financial implication of divorce is the actual cost of the divorce itself. Attorneys fees are often an extreme hardship at a time when the divorcing couple begins to incur expenses far in excess of half of the budget incurred during the marriage.

Medical and psychological effects

Studies measuring how marital status affects personal well-being "attest that married people live longer and generally are more emotionally and physically healthy than the unmarried."[31]

A number of serious medical and psychological effects of divorce have been reported, including:

  • Divorcees seek formal psychiatric care at higher rates.[29]
  • Divorced men are more likely to complete suicide and have lower life expectancies than their married counterparts.[32][33]
  • Men, particularly black men, were found to be at risk for depression, leading to various physiological problems including migraine headaches, infectious and parasitic diseases, respiratory illnesses, digestive illnesses, and severe injuries.[34]
  • Divorcees have higher rates of alcoholism and other substance abuse compared to those who have never been divorced.[31]
  • Divorcees have a greater risk of stroke[35]

Effects on children

Divorce has significant effects not only for the couple themselves, but also for their children.

Attempts to assess the impact of divorce on children with precision are inherently compromised by the same methodological problem as with adults: establishing the relevant baseline for comparisons. By definition, virtually all children of divorce are from unhappy families; meanwhile, children whose parents never divorced are from some mix of happy families and unhappy ones (parents who stayed married despite an unhappy marital relationship). Despite this methodological challenge, numerous studies have found significant impacts of divorce on children. A parental divorce influences a child’s behavior in a negative manner. This negative behavior is cast outward, evidenced in psychological and academic problems.

It was generally assumed that the difficulties children experienced due to divorce, while common, were short-lived. However, the longitudinal study by Judith Wallerstein reported long-term negative effects of divorce on children.[36] A child affected by divorce at an early age will show effects later in life. In fact, some authors have argued that a major cost to children comes long after: when they attempt to form stable marriages themselves.

However, not all divorces have entirely negative impacts on the children. Divorce can actually help children living in high-conflict homes such as those with domestic violence.[37] A peaceful divorce has less of an impact on children than a contested divorce.[38]

Psychological

The children of divorced parents are more likely to have behavioral and psychological problems than children of married parents. 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.[39]

Children of divorced or separated parents exhibit increased behavioral problems and the marital conflict that accompanies parents' divorce places the child's social competence at risk.[40]

Young men or women between the ages of 7 and 16 who experienced the divorce of their parents, when compared to youths who had not experienced the divorce of their parents, are more likely to leave home because of friction, to cohabit before marriage, and to parent a child before marriage.[41]

Parental divorce leads a child to have lower trust in future relationships.[42] Compared with children of intact families, children of divorced parents have less favorable attitudes towards marriage.[43]

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.[39]

Girls and boys deal with divorce differently. For instance, girls may initially show signs of adapting well, but 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 angrier toward the situation as they aged. Anger and sadness were also observed as common feelings in adolescents who had experienced parental divorce.[44]

Academic and socioeconomic

Frequently, children who have experienced a divorce have lower academic achievement than children from non-divorced families[45] 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.[46]

A review of family and school factors related to adolescents' academic performance 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.[47]

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.[39]

Notes

  1. Janet Halley, Behind the Law of Marriage (I): From Status/Contract to the Marriage System Unbound 6(1) (2010):1-58. Retrieved June 24, 2021.
  2. Comparative Rectitude Legal Dictionary. Retrieved June 29, 2021.
  3. NC Collaborative Law Attorneys Williams Law Group. Retrieved June 29, 2021.
  4. Robert E. Emery (ed.), Cultural Sociology of Divorce : An Encyclopedia Thousand Oaks, CA: SAGE Publications, Inc., 2013, ISBN 978-1412999588).
  5. Portugal: Divorce in One Hour Library of Congress Law Library. Retrieved June 29, 2021.
  6. Hadassah Fidler, Mediation and the law Jerusalem Post, January 28, 2016. Retrieved June 29, 2021.
  7. No Fault Divorce Law and Legal Definition US Legal. Retrieved June 29, 2021.
  8. 8.0 8.1 Bishop Athenagoras (Peckstadt) of Sinope, Marriage, Divorce, and Remarriage in the Orthodox Church Orthodox Research Institute, April 2005. Retrieved July 1, 2021.
  9. 9.0 9.1 9.2 William Blackstone, Commentaries on the Laws of England (Oxford University Press, 2016, ISBN 978-0199600984).
  10. 10.0 10.1 10.2 10.3 James Kent, Commentaries On American Law (Arkose Press, 2015, ISBN 978-1346038315).
  11. D.F. McKenzie, Making Meaning: Printers of the Mind and Other Essays (University of Massachusetts Press, 2002, ISBN 1558493360).
  12. Max Rheinstein, Trends in marriage and divorce law of Western countries Retrieved July 1, 2021.
  13. Fiona Zublin, How a Little Bit of Nunhood Paved the Way for Japanese Divorce OZY, September 16, 2016. Retrieved June 23, 2021.
  14. Divorce Canada Ottawa Divorce. Retrieved July 1, 2021.
  15. Amartya Bag, Irretrievable break down of marriage as a ground for divorce in India iPleaders, December 3, 2014. Retrieved July 2, 2021.
  16. The Parsi Marriage And Divorce Act, 1936 Retrieved July 2, 2021.
  17. The Dissolution Of Muslim Marriages Act, 1939 Retrieved July 2, 2021.
  18. The Foreign Marriage Act, 1969 Retrieved July 2, 2021.
  19. V.R. Krishna Iyer, Muslim Women (protection of Rights on Divorce) Act, 1986 (EBC, 1987, ISBN 978-8170123491).
  20. Types of Divorce in Japan U.S. Embassy & Consulates in Japan. Retrieved June 23, 2021.
  21. Acknowledgment of Divorce in the Philippines HG.org Legal Resources. Retrieved July 2, 2021.
  22. Family Code of the Philippines Retrieved July 2, 2021.
  23. Grounds for divorce Gov.uk. Retrieved July 2, 2021.
  24. Jeremy Morley, Notes on Divorce in Italy International Family Law. Retrieved July 2, 2021.
  25. Michael Safi, India court bans Islamic instant divorce in huge win for women's rights The Guardian, August 22, 2017. Retrieved July 2, 2021.
  26. 26.0 26.1 Mishneh Torah, Hilchot Gerushin 1:1
  27. E.A. Gjelten, What Causes Divorce? 8 Common Reasons Marriages End DivorceNet. Retrieved July 2, 2021.
  28. Gary S. Becker, A Treatise on the Family, (Harvard University Press, 1993, ISBN 978-0674906990).
  29. 29.0 29.1 Bernard L. Bloom, Shirley J. Asher, and Stephen W. White, Marital disruption as a stressor: A review and analysis Psychological Bulletin 85(4), (1978):867–894. Retrieved July 4, 2021.
  30. Pamela J. Smock, The Economic Costs of Marital Disruption for Young Women Over the Past Two Decades Demography 30(3) (August 1993):353-371. Retrieved July 5, 2021.
  31. 31.0 31.1 Robert H. Coombs, Marital status and personal well-being: A literature review Family Relations: An Interdisciplinary Journal of Applied Family Studies 40(1) (1991):97–102. Retrieved July 5, 2021.
  32. A.J. Kposowa, Divorce and suicide risk Journal of Epidemiology and Community Health 57(12) (2003):993. Retrieved July 5, 2021.
  33. Terry J. Arendell, Fathers and Divorce (SAGE Publications, Inc., 1995, ISBN 978-0803971899).
  34. Erma Jean Lawson, Black Men and Divorce: Implications For Culturally Competent Practice Minority Health Today, July 1, 2000. Retrieved July 5, 2021.
  35. Gunnar Engström, Farhad Ali Khan, Elisabet Zia, Ingela Jerntorp, Hélène Pessah-Rasmussen, Bo Norrving, and Lars Janzon, Marital dissolution is followed by an increased incidence of stroke Cerebrovascular Disease 18(4) {2004): 318-324. Retrieved July 5, 2021.
  36. Judith S. Wallerstein, Julia M. Lewis, and Sandra Blakeslee, The Unexpected Legacy of Divorce: The 25 Year Landmark Study (Hachette Books, 2001, ISBN 978-0786886166).
  37. E. Mavis Hetherington and John Kelly, For Better or For Worse: Divorce Reconsidered(W.W. Norton & Company, 2003, ISBN 978-0393324136).
  38. Constance Ahrons, We're Still Family: What Grown Children Have to Say About Their Parents' Divorce (Harper Perennial, 2005, ISBN 978-0060931209).
  39. 39.0 39.1 39.2 Paul R. Amato and Juliana M. Sobolewski, The effects of divorce and marital discord on adult children's psychological well-being American Sociological Review 66(6) (December 2001):900–921. Retrieved July 5, 2021.
  40. Patrick F. Fagan and Aaron Churchill, The Effects of Divorce on Children Marriage & Religion Research Institute, January 11, 2012. Retrieved July 5, 2021.
  41. Andrew Cherlin, Marriage, Divorce, and Remarriage (Harvard University Press, 1981, ISBN 978-0674550803).
  42. Susan E. Jacquet and Catherine A. Surra, Parental divorce and premarital couples: commitment and other relationship characteristics Journal of Marriage and Family 63(3) (2001): 627–638. Retrieved July 5, 2021.
  43. A. Marlene Jennings, Connie J. Salts, and Thomas A. Smith, Attitudes toward marriage: Effects of parental conflict, family structure, and gender Journal of Divorce and Remarriage 17(1-2) (1991):67–78. Retrieved July 6, 2021.
  44. Sol R. Rappaport, Deconstructing the Impact of Divorce on Children Family Law Quarterly 47(3) (2013):353–377. Retrieved July 6, 2021.
  45. Sharlene A. Wolchik, Irwin N. Sandler, Roger E. Millsa, et al., Six-Year Follow-up of Preventive Interventions for Children of Divorce Journal of the American Medical Association 288(15) (2002):1874–1881. Retrieved July 5, 2021.
  46. Jeremy Arkes, The Temporal Effects of Divorces and Separations on Children's Academic Achievement and Problem behavior Journal of Divorce and Remarriage 56(1) (2015): 25–42. Retrieved July 5, 2021.
  47. Kathleen B. Rodgers and Hillary A. Rose, Personal, Family, and School Factors Related to Adolescents' Academic Performance: A Comparison by Family Structure Marriage and Family Review 33(4) (2001): 47–61. Retrieved July 5, 2021.

References

  • Arendell, Terry J. Fathers and Divorce. SAGE Publications, Inc., 1995. ISBN 978-0803971899
  • Ahrons, Constance. We're Still Family: What Grown Children Have to Say About Their Parents' Divorce. Harper Perennial, 2005. ISBN 978-0060931209
  • Amato, Paul R., and Alan Booth. A Generation at Risk: Growing Up in an Era of Family Upheaval. Harvard University Press, 1997. ISBN 978-0674292833
  • Becker, Gary S. A Treatise on the Family. Harvard University Press, 1993. ISBN 978-0674906990
  • Blackstone, William. Commentaries on the Laws of England. Oxford University Press, 2016. ISBN 978-0199600984
  • Cherlin, Andrew. Marriage, Divorce, and Remarriage. Harvard University Press, 1981. ISBN 978-0674550803
  • Emery, Robert E. (ed.). Cultural Sociology of Divorce : An Encyclopedia. Thousand Oaks, CA: SAGE Publications, Inc., 2013. ISBN 978-1412999588
  • Gallagher, Maggie. The Abolition of Marriage: How We Destroy Lasting Love. Regnery Publishing, 1996. ISBN 978-0895264640
  • Hetherington, E. Mavis, and John Kelly. For Better or For Worse: Divorce Reconsidered. W.W. Norton & Company, 2003. ISBN 978-0393324136
  • Iyer, V.R. Krishna. Muslim Women (protection of Rights on Divorce) Act, 1986. EBC, 1987. ISBN 978-8170123491
  • Kent, James. Commentaries On American Law. Arkose Press, 2015. ISBN 978-1346038315
  • McKenzie, D.F. Making Meaning: Printers of the Mind and Other Essays. University of Massachusetts Press, 2002. ISBN 1558493360
  • McLanahan, Sara, and Gary Sandefur. Growing Up with a Single Parent: What Hurts, What Helps. Harvard University Press, 1994. ISBN 978-0674364073
  • Wallerstein, Judith S., Julia M. Lewis, and Sandra Blakeslee. The Unexpected Legacy of Divorce: The 25 Year Landmark Study. Hachette Books, 2001. ISBN 978-0786886166

External links

All links retrieved July 6, 2021.

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