Divorce

   

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 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.

The term between divorce and remarriage varies depending on the country and the gender 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).

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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 were 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 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 pervious 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.

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.

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Social and psychological issues

There are arguments in both directions as to the relative effects of divorce on women and men. 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. Recognition of the problems faced by fathers and other relatives is given by self-help groups such as Families Need Fathers.’

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

Causes of divorce

Divorce may be a result of one or more factors, usually more than one, which make a couple unable or unwilling to continue the relationship. In some cases, incompatibilities arise due to financial needs, vast differences in career goals, or conflicts concerning time spent outside the home.

Legal aspects of divorce

Muslim Societies

No-fault divorce is Allowed in Islam, although islam discourages divorce in any case. No-fault divorce can be obtained by either partner. If man seeks divorce in any case he has to pay dowry and expensis of wife after divorce for period of 'iddah' (four months 10 days) and in case of women feeding his child he has to pay the expensis of ex-wife for the period she feeds child upto child's age of 2 years (In Addition to expensis for child). If wife seeks divorce she has to go to a court. Court will first try to make a settlement if settlement can't be reached. Court can grant the divorce. If women who seeks divorce can prove that she requires divorce due to valid reason such as, she has received ill treatment, the husband is unable to sustain her financially or he is sexually impotent, husband has to pay dowry in this case too but if women is seeking divorce and there is no valid reason for divorce from women, she can't get any thing from her husband's finances[1] (http://www.islamonline.net/askaboutislam/display.asp?hquestionID=3202).

United States

Divorce in the United States is a matter of state law, not federal law. Each state's legislature has enacted divorce laws that set forth the requirements for obtaining a divorce. These requirements vary from state to state.

In general there is a residency requirement and a waiting period after the separation. For example, in North Carolina, a spouse must have lived in North Carolina at least six months and must wait one year after separating to file for divorce. Other states have different residency requirements and waiting periods. Some states have requirements that issues like custody must be settled prior to the divorce.

Another issue is whether or not a divorcing party has to prove that the divorce is the other party's fault. Generally speaking, states offer no-fault divorces where the issue who is responsible for the dissolution of the marriage is irrevelevant.

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. [2] (http://www.ottawadivorce.com) 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. [3] (http://www.A1-ontario-divorce.com) 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 marriage, which are recognized in three provinces and one territory. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce. [4] (http://www.theglobeandmail.com/servlet/story/RTGAM.20040913.wdivor0913/BNStory/National/)

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 (http://www.crnjapan.com) provides additional information in English about divorce in Japan, along with translations of Japanese family court laws (http://www.crnjapan.com/japan_law/) and Japanese legal forms. (http://www.crnjapan.com/forms/)

Scotland

About one third of marriages in Scotland end in divorce, on average after about thirteen years (‘Family Formation and Dissolution (http://www.scotland.gov.uk/cru/resfinds/lsf43-00.asp)). 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 (http://www.scotland.gov.uk/library2/doc11/rfl-00.asp) and more recent proposals by the Scottish Executive (http://www.scotland.gov.uk/library4/JD/CL/00019211.aspx). 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.

Statistics

In Muslim world the divorce rates are very low as compare to other societies. Although some think that they are slowly rising. But still they are very low. For example in 2004 in singapore (non-muslim country with muslim minority 18%) many feared that divorce rate among muslims have risen too high which were 9 divorces in 1000 married mslims a percentage thee times higher then in malysia and five times higher then indonesia[5] (http://www.muslimnews.co.uk/news/news.php?article=7986).

In the United States, it is often quoted that "50% of marriages end in divorce," however we must closely examine the actual statistics to understand the actual divorce rate. According to the National Center for Health Statistics (part of the Centers for Disease Control and Prevention), in 2001 the per capita marriage rate was 7.8 marriages in 1,000 people (0.78%).[6] (http://www.cdc.gov/nchs/fastats/divorce.htm) This means that for every 1,000 people living in the US, in 7.8 marriages were performed during the year 2001, or 15.6 individuals got married.[7] (http://www.divorcereform.org/rates.html) The divorce rate was 4.0 divorces per 1,000 people (0.40%), or 8.0 out of every 1,000 people got divorces during 2001.[8] (http://www.cdc.gov/nchs/fastats/divorce.htm)

A more accurate concluding statement to draw from this data would be "The divorce rate is half the marriage rate." The statement "50% of marriages end in divorce" would instead have to study a sample of marriages throughout their duration, that is, over a period of many years, and determine how many of the marriages actually performed ended in divorce (as compared to annulment or death of a spouse). These two statements would be equivalent if (1) marriage and divorce trends did not change over a time period equal to the length of a marriage (say, 50 years), and (2) all divorces were performed in the same country as their marriage. While the second statement is close enough to true, the first one is clearly not, as during the ten year period from 1991 to 2001 the divorce rate decreased from 0.47% to the above stated 0.40%.[9] (http://www.divorcereform.org/rates.html)

See also

External links



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