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Divorce

Divorce is also the name of an Indian film

Divorce or dissolution of marriage is the ending of a marriage, which can be contrasted with an annulment which is a declaration that a marriage is void, though the effects of marriage may be recognized in such unions, such as spousal support, child custody and distribution of property.

In developed countries, divorce rates have increased markedly during the twentieth century. Among the states in which divorce has become commonplace are the United States, Japan, Korea and members of the European Union (in Malta divorce is illegal, Ireland only allowed divorce since 1997 via a referendum, (the Fifteenth Amendment to the constitution)). In U.S, Canada, the United Kingdom and other some other developed Commonwealth countries, this boom in divorce developed in the last half of the twentieth century. In addition, acceptance of the single-parent family has resulted in many women deciding to have children outside marriage as there is little remaining social stigma attached to unwed mothers. The subject of divorce as a social phenomenon is an important research topic in sociology.

Some researchers argue that divorce rates do not always reflect actual interactions among people; that is, some countries may show a low divorce rate because, in such countries, people rarely get married in the first place.

Typical initial parenting order reducing father to visitor with standard two days every fourteen time
Court order seizing property
Court order garnishing typically the father's income

The term between divorce and remarriage varies depending on the country and the sex of the divorcee. In some countries, women need to wait longer than men before remarrying to avoid confusion about paternity. Children born after divorce may or may not be recognized as children of their father depending on the period between divorce and birth, although recognition of maternity is usually automatic. In most common law jurisdictions there is a presumption that the child born during the marriage is the husband's child, however this presumption can be overcome by identifying the putative father and bringing a paternity or affiliation proceeding. If the child was conceived before the divorce but born afterward this may involve litigation. If a man accepts the child as his own he may be declared the father and may in many jurisdictions incur obligations towards the child.

A man who has been divorced is a divorcé; a divorced woman is a divorcée (from French).

A divorce is generally accomplished through 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 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 also emerged in recent years, known as family mediation, an attempt to negotiate mutually acceptable resolution to conflicts.

Table of contents

History of divorce

Divorce in some jurisdictions is a relatively recent phenomenon. In Canada there was no divorce law until the 1960s. Before that the only way to get divorced was to apply to the Canadian Senate where a special committee would undertake an investigation of a request for a divorce and if they found that the request had merit, the marriage would be dissolved by an Act of Parliament.

Great Britain

Scotland

In Scotland, until 1560, when papal authority was abolished by Act of Parliament, the law on marriage was the canon law. This did not recognise divorce. With the Reformation, the common law recognised divorce for adultery and, by statute in 1573, desertion was also recognised as a ground for divorce. Thereafter, until 1830, the law was judicially developed by the Commissary Court of Edinburgh. In 1830, jurisdiction in divorce actions passed to the Court of Session. The grounds, however, remained the same until the development of the concept of the matrimonial offence resulted, in the Divorce (Scotland) Act 1938, in the addition of cruelty, sodomy, and bestiality as grounds; the concept of no-fault divorce was introduced in the same Act with the addition of ‘incurable insanity’ as a ground.

Growing recognition that ‘fault’ was not necessarily at the root of marriage breakdown led to the passage of the Divorce (Scotland) Act 1976, which provided that ‘irretrievable breakdown’ was the sole ground of divorce; but, contradictorily, went on to provide that this could only be evidenced by one of five sets of facts: adultery, desertion, unreasonable behaviour, two years separation plus the defenders consent to divorce, or five years separation. The third of these came to be so generously interpreted by the courts as to form the most popular ground for divorce for a time. Subsequently, the Sheriff Court acquired a concurrent jurisdiction in divorce actions; and the introduction of ‘do-it-yourself’ divorce has led to a situation in which the vast majority of divorces in Scotland are uncontentious; the very few exceptions mostly being those in which there is financial argument.

England and Wales

The legal recognition of divorce in England lagged far behind. Prior to 1670 a marriage could only be ended by the Church courts if it could be shown to have never existed in the first place, either through inability to consent (e.g. insanity) or by want of capacity to marry (e.g. precontract, consanguinity, the two parties were related by a previous marriage). A marriage could also be ended if one of the parties was impotent or frigid when the marriage was contracted. It was also possible to get a legal separation from the church known as divorce a mensa et thoro (from board and hearth). Grounds for the separation included adultery, cruelty and heresy, and it meant that any offspring were not rendered illegitimate. However neither spouse could remarry until the other had died. In his 1990 work on the subject, Road to Divorce: England 1530–1987, the late historian Lawrence Stone was one of the first to point out that the legal barriers to divorce were not an absolute bar against remarriage, since the short life expectancy of the time guaranteed that one spouse would certainly outlive the other (and would soon be free to marry again).

In the 1530s, Henry VIII decided that he wished to divorce his first wife, Catherine of Aragon, on the grounds of affinity; he argued that, since Catherine was his brother Arthur's widow, the marriage had never really existed. Catherine claimed that her marriage to Arthur had never been properly consummated. In 1533 Thomas Cranmer was appointed Archbishop of Canterbury and he declared that Henry's marriage to Catherine was void, effectively bastardizing their daughter Mary (later Mary I). In 1536 Cranmer similarly declared Henry's marriage to Anne Boleyn void, most probably due to Henry's previous relationship with Anne's sister Mary Boleyn. Cranmer tried to reform the Church of England's Canon law so that it allowed divorce for adultery, cruelty, and desertion, but these changes were not implemented.

Following Lord Roos's divorce on the grounds of adultery in 1670, the procedure for divorce in English law went as follows: first the husband brought an action for "criminal conversation" to establish the adultery, then he obtained a divorce a mensa et thoro from the church and then finally he petitioned the House of Lords to grant the divorce.

In 1853 a Royal Commission made recommendations on how to improve the procedure of getting a divorce. In 1857 the Court for Divorce and Matrimonial Causes, based in London, was established, taking over the divorce duties of the church courts. Men could obtain divorce for adultery, but women had to prove cruelty or desertion, in addition to their husband's adultery. In 1923 women were allowed to use the same grounds for divorce as men. In 1969, after much debate, 'irretrievable breakdown', on the basis of one of five grounds became the test for divorce.

Alternatives to divorce are 'nullity' (see annulment) or 'judicial separation' which may be suitable where there is religious scruples against divorce.

Causes of divorce

An annual study [1] in the UK by management consultants Grant Thornton, shows the main causes of divorce based on surveys of matrimonial lawyers. The main causes in 2004 (2003) were:

  • Extra-marital affairs – 27% (29%)
  • Family strains – 18% (11%)
  • Emotional/physical abuse – 17% (10%)
  • Mid-life crisis – 13% (not in 2003 survey)
  • Addictions, e.g. alcoholism and gambling – 6% (5%)
  • Workaholism – 6% (5%)

Regarding extra-marital affairs, men engaged in them in 75% (55%) of cases; women in 25% (45%).

In cases of family strain, it was women's families in 78% of cases who were the cause, compared to 22% of men's.

Emotional/physical abuse was more evenly split with women affected in 60% and men in 40% of cases.

In 70% of workaholism-related divorces it was men who were the cause, and 30% women.

The 2004 survey found that in 93% of cases divorces were petitioned by women, very few of which were contested.

53% of divorces tended to occur in marriages which had lasted between 10 and 15 years, with 40% ending between 5 and 10 years. The first 5 years tend to be divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce.

Regarding divorce settlements, 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 2004 report concluded that in order for more equitable splits to occur in future it will be down to the success of campaigns like that of Fathers 4 Justice to ensure that a greater proportion of divorcing couples are granted shared residence orders for their children.

Religious/cultural attitudes to divorce

Many countries in Europe, such as France prohibited divorce as it was not condoned by the Catholic church. Sometimes citizens would have to travel to other jurisdictions to obtain a divorce. In Islam divorce is allowed, although discouraged, and either partner can decide to have a no-fault divorce. But still Islamic laws are arranged such to discourage divorce very effectively. David Instone-Brewer has an extensive website at www.instone-brewer.com which discusses marriage and divorce from 1st century context. Judaism recognized the concept of "no-fault" divorce thousands of years ago. Judaism has always accepted divorce as a fact of life, 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. More can be found at http://www.jewfaq.org/divorce.htm

Social and family issues

There are arguments concerning the harmful effects of divorce on women, men, and children in the family. These may be summarised as follows:

Women are generally the financial victims of divorce due to the lack of equal pay for equal work in many countries and the fact that many women give up employment after marriage to bring up children. They are often left with the burden of looking after the children after the divorce while having to find work in low-paid jobs. Child support collection is a major problem as many fathers do not accept that they have an obligation towards their children. Many national and local governments provide some kind of welfare system for divorced mothers and their children. See single mother for details.

Men are generally the financial victims of divorce due to court-ordered alimony and child support which women often are not required to pay, and the fact that many men are entirely denied custody of their own children. Some men are left with the burden of never seeing their children, which is a major problem as many mothers may relocate the children, not accepting that they have an obligation to provide a stable and supportive family with both parents involved. Although women are less likely to pay child-support, they are more likely to neglect support payments when they are required. Unfortunately, the aspect of family stability is one argument stated against same-sex marriage, since court orders against men and child neglect by women are no longer defensible one-way legal benefits. Recognition of the problems faced by fathers and other relatives is given by self-help groups such as Families Need Fathers.

In the USA, men who reside in a community property state are at a disadvantage if they are more wealthily than their spouse. This is because the property will be split 50/50 regardless of who earned the money to pay for it. In effect, the less wealthily the wife is, the more she will recieve from what the husband earned. This is true even if the wife is responsible for the divorce (e.g. adultery) or initiates the divorce herself. Judges have no power to rectify the situation, and must divide the property evenly no matter how unfair the result may seem. This can be largely avoided if a prenuptial agreement is entered into at the time of marriage. For many men undergoing a divorce in these states, community property is the most contentious issue of all.

In some jurisdictions, only a small minority of divorces involve families with children. For example, in Scotland in 1997, there were 2461 divorces involving children but 9761 of couples with no children under 16.

Legal aspects of divorce

Muslim societies

No-fault divorce is allowed in Islam, though Islam discourages divorce in any case. No-fault divorce can be obtained by either partner.

If the man seeks divorce he has to pay a dowry and cover the expenses of his ex-wife for a period called 'iddah' (four months 10 days) following divorce, and in the case of the woman feeding his child he has to pay the expenses of his ex-wife for the period she feeds child until the child is two years old (in addition to expenses for child).

If it is the wife who seeks divorce, she must go to a court. The court will first try to make a settlement. If a settlement can't be reached, the court can grant a divorce. If a woman who seeks divorce on the (proven) grounds of ill treatment, inability to sustain her financially or sexual impotence on the part of the husband, the husband has to pay a dowry; otherwise, she gets nothing. [2].

See also: At-Talaq and Triple talaq.

United States

Divorce in the United States is a matter of state law, not federal law. See no fault divorce for more information. The county courtÂ’s family division judge on petitions for dissolution of marriages. [3] National Association of Women Lawyers convinced the American Bar Association to create the Family Law section in the courts, then introduced no-fault divorce law in 1960 (cf. Uniform Divorce Bill).[4] Although some states have not formed gender bias task forces, many courts are working toward the ideal of total equality and fairness says a State Task Force Reports by the National Center for State Courts.

Each state's legislature has enacted divorce laws that set forth the requirements for obtaining a divorce. These requirements vary from state to state. Some states maintain forms of fault-based divorce. Some states have covenant marriage which makes the divorce more difficult to obtain than in the typical no-fault divorce action.

Issues that separating spouses must decide upon are custody, visitation schedule, property division, spousal support and child support.

Concerns that may arise are fathers' rights, order of protection, domestic violence, allegations of domestic violence, parenting plan, and alimony that family law governs as a civil law matter.

Canada

In Canada while civil and political rights are in the jurisdiction of the provinces of Canada, the Constitution of Canada specifically made marriage and divorce the realm of the federal government. Essentially this means that Canada's divorce law is uniform throughout Canada, even in Quebec, that differs from the other provinces in its use of the civil law as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo-Canadian provinces.

The Canada Divorce Act recognizes three grounds for divorce: 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. [5] 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. [6] A couple can even be considered to be "separated" even if they are living in the same dwelling. Either spouse can apply for a divorce in the province in which either the husband or wife has lived for at least one year.

On September 13, 2004, the Ontario Court of Appeal declared the Divorce Act also unconstitutional for excluding same-sex marriages, which at the time of the decision were recognized in three provinces and one territory. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce. [7]

France

The French Civil code (modified on January 1, 2005), permits divorce for 4 different reasons; mutual consent (which comprises over 60% of all divorces); acceptance; separation of 2 years; and due to the 'fault' of one partner (accounting for most of the other 40%).

Japan

In Japan, there are four types of divorce. Divorce By Mutual Consent (kyogi rikon), Divorce By Family Court Mediation (chotei rikon), Divorce By Family Court Judgement (shimpan rikon), and Divorce by District Court Judgment (saiban rikon).

Divorce by mutual consent is a simple process of submitting a declaration to the relevant government office that says both spouses agree to divorce. This form is often called the "Green Form" due to the wide green band across the top. If both parties fail to reach agreement on conditions of a Divorce By Mutual Consent, such as child custody which must be specified on the divorce form, then they must use one of the other three types of divorce. It should also be noted that another type may also be necessary in the case of an international divorce, as Japan's Divorce By Mutual Consent is not recognized by all countries.

Divorce By Mutual Consent in Japan differs from divorce in many other countries in that it is not always possible to verify the identity of the non Japanese spouse in the case of an international divorce. This is due to two facts. First, both spouses do not have to be present when submitting the divorce form to the government office. Second, a Japanese citizen must authorize the divorce form using a personal stamp (hanko), and Japan has a legal mechanism for registration of personal stamps. On the other hand, a non-Japanese citizen can authorize the divorce form with a signature. But there is no such legal registry for signatures, making forgery of the signature of a non-Japanese spouse difficult to prevent at best, and impossible to prevent without forsight. The only defense against such forgery is, before the forgery occurs, to submit yet another form to prevent a divorce form from being legally accepted by the government office at all. This form must be renewed every six months.

The non-profit organization Children's Rights Network of Japan provides additional information in English about divorce in Japan, along with translations of Japanese family court laws and Japanese legal forms.

Scotland

About one third of marriages in Scotland end in divorce, on average after about thirteen years (‘Family Formation and Dissolution). 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.

The grounds of divorce are, as described above, contained in the Divorce (Scotland) Act 1976. There have however been proposals for a number of years for their reform and simplification; see for example Scottish Law Commission report on Family Law no 135 and more recent proposals by the Scottish Executive. It is likely that the two year separation period required for a no-fault divorce with consent will be reduced to one year. Family law issues are devolved, so are now the responsibility of the Scottish Parliament and Scottish Executive.

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. Either party to the marriage can apply to the court for an order under the 1985 Act. The court can make orders for the payment of a capital sum, the transfer of property, the payment of periodical sums, and other incidental orders. In making an order, the court is, under the Act, guided by the following principles: (1)The net value of the matrimonial property should be shared fairly, and the starting point is that it should be shared equally; but (2) fair account should be taken of economic advantage derived by either party from contributions by the other, and of economic disadvantage suffered by either party in the interests of the other party or of the family; and (3) The economic burden of caring for a child of the marriage under 16 years should be shared fairly between the parties (but child support is not normally awarded by the court, as this is in most cases a matter for the Child Support Agency).

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.

England and Wales

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', i.e. (unless cause is later shown), before it is made 'absolute'. Relevant laws are:

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 access rights to children.

Divorce under Islam

Islam, unlike Christianity, considers marriage to be a legal contract; and the act of obtaining a divorce is essentially the act of legally dissolving the contract. If a man pronounces three divorces against a free woman, or two against a slave, he can lawfully wed neither of them again, unless they have been espoused by another, and this second husband dies, or shall divorce them. When it happens that a husband wishes to recover his wife, whom he had divorced in a passion, a convenient husband is sought; but the law forbids a mockery being made of such marriages. They may be short in duration, but the parties must live, during the period they are united, as man and wife.

Statistics

In Muslim world the divorce rates are very low compared to other societies, though some think that they are slowly rising. For example: in 2004 in Singapore (a non-muslim country with an 18% muslim minority) many feared that the divorce rate among muslims had risen too high: 9 out of every 1000 marriages, a ratio three times higher than Malaysia and five times higher than Indonesia[8].

In the United States,in 2003 there were 7.5 marriages per 1000 people and 3.8 divorces per 1000 according to the U.S. Department of Health and Human Services. In other words, there were half as many divorces as marriages that year. Statistics like these are frequently interpreted to mean that half of all marriages end in divorce. That conclusion, strictly speaking, does not follow from those data, but other government surveys of marriages over time have found similar percentages of marriages ultimately ending in divorce. A NCHS study released in 2001, based on a 1995 survey, found that 43 percent of first marriages ended in separation or divorce within 15 years, with 1 in 3 ending within 10 years and 1 and 5 ending within 5 years.

According to a paper by Margaret Brinig and Douglas W. Allen, "These Boots Are Made for Walking: Why Most Divorce Filers are Women" (in American Law and Economics Review, vol. 2, number 1, 2000, pp. 126–129), women currently file slightly more than two-thirds of divorce cases in the US. There is some variation among states, and the numbers have also varied over time, with about 60% of filings by women in most of the 19th century, and over 70% by women in some states just after no-fault divorce was introduced, according to the paper.

States in the US also collect billions of dollars in alimony and child support arrangements, which commonly result from divorces. (According to a 2003 US census report, 43.7 percent of custodial mothers, and 56.2 percent of custodial fathers. are divorced or separated.) A 2005 Census Bureau Report found that in 2002, $40 billion had been paid in support arrangements by 7.8 million payers, 84% of whom were men. States also collected federal incentives to collect support payments, with a potential incentive pool of up to $454 million in fiscal 2004. A media kit for the National Child Support Enforcement Association, a child support advocacy group, claims that 60,000 professionals work to administer and enforce child support arrangements.

See also

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