Divorce
Encyclopedia
Divorce is the final termination of a marital union
, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties (unlike annulment
which declares the marriage null and void). Divorce laws vary considerably around the world but in most countries it requires the sanction of a court or other authority in a legal process. The legal process for divorce may also involve issues of spousal support
, child custody
, child support
, distribution of property and division of debt. Where monogamy
is law, divorce allows each former partner to marry another; where polygyny
is legal but polyandry
is not, divorce allows the woman to marry another.
Between 1971 and 2011, five European countries legalised divorce: Italy
, Spain
, Portugal
, Ireland
and Malta. This leaves two countries in the world—the Philippines
and Vatican City
—that do not have a civil procedure for divorce.
"Divorcing one's parents" is a term sometimes used to refer to emancipation of minors
.
In jurisdictions adopting the 'no-fault' principle in divorce proceedings, some courts may still take into account the behavior of the parties when dividing property, debts, evaluating custody and support—facts which almost always have considerable weight in fault proceedings. This is particularly true in custody cases, where the courts might consider many factors which mirror 'fault' grounds, such as drug abuse, alcoholism, violence, cruelty, instability, neglect and possibly the preference of an intelligent, mature child.
Despite this, in some countries (or states of the United States), the courts will seldom apply principles of fault, but might willingly hold a party liable for a breach of a fiduciary duty to his or her spouse (See for example, Family Code Sections 720 and 1100 of the California Family Code).
In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect. The terms of the divorce are usually determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses may have agreed to privately (this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable). In absence of agreement, a contested divorce may be stressful to the spouses. Contested divorces mean that one of several issues are required to be heard by a judge at trial level—this is more expensive and the parties will have to pay for a lawyer's time and preparation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate mutually acceptable resolution to conflicts. This principle in the United States is called 'Alternative Dispute Resolution' and continues to gain popularity.
In some other countries, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non-judiciary administrative entity. The effect of a divorce is that both parties are free to marry again.
The subject of divorce as a social phenomenon is an important research topic in sociology
. In many developed countries, divorce rates increased markedly during the twentieth century. Among the nations in which divorce has become commonplace are the United States
, the United Kingdom
, Canada
, Germany
, Australia
and Scandinavia
. The only Western country where divorce is not legal is the British Crown Dependency
of Sark
.
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.
system, divorce 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 destroyed by these differences is enough for granting a divorce. Courts will not inquire into facts. A "yes" is enough, even if the other party vehemently says "no".
The application can be made by either party or by both parties jointly.
, the last state to still require fault-based divorce, passed a bill in 2010 permitting no-fault divorce.
Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion
of the parties (working together to get the divorce), or condonation
(approving the offense), connivance
(tricking someone into committing an offense), or provocation
by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.
Key factors:
Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them. In the majority of cases, forms are acquired from their respective state websites and a filing fee is paid to the state. Most U.S. states charge between $175 and $350 for a simple divorce filing. Collaborative divorce and mediated divorce are considered uncontested divorces. In the United States
, many state court systems are experiencing an increasing proportion of pro se (i.e., litigants represent themselves without a lawyer) in divorce cases. In San Diego, for example, the number of divorce filings involving at least one self-representing litigant rose from 46% in 1992 to 77% in 2000, and in Florida from 66% in 1999 to 73% in 2001. Urban courts in California report that approximately 80% of the new divorce filings are filed pro se.
who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.
Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law
process end prematurely. Most attorneys who practice collaborative divorce claim that it can be more cost-effective than other divorce methods. e.g., going to court. Expense, they say, has to be looked at under the headings of financial and emotional. Also, the experience of working collaboratively tends to improve communication between the parties, particularly when collaborative coaches are involved and the possibility of going back to court post-separation or divorce is minimised. In the course of the collaboration, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot be used in court except by agreement between the parties.
Neither can any of the professional team retained in the course of the collaboration be brought to court. Essentially, they have the same protections as in mediation. There are two exceptions: 1) Any affidavit sworn in the course of the collaboration and vouching documentation attaching to same and 2) any interim agreement made and signed off in the course of the collaboration or correspondence relating thereto. The parties are in control of the time they are prepared to give their collaboration. Some people need a lot of time to complete and others will reach solutions in a few meetings. Collaborative practitioners offer a tightly orchestrated model with meetings scheduled in advance every two weeks and the range of items to be discussed apportioned in advance of signing up as well as the more open ended process, the clients decide.
, to file an electronic
request for a no-fault, collaborative divorce in a non-judiciary administrative entity. Specific cases, with no children, real property, alimony
, or common address, can be decreed as summary within one hour.
is a significant structural factor governing divorce in countries where this is permitted. Little-to-no analysis has been completed to explicitly explain the link between marital instability and polygyny which leads to divorce. The frequency of divorce rises in polygynous marriages compared to monogamous relationships. Within polygynous unions, differences in conjugal stability are found to occur by wife order. There are 3 main mechanisms through which polygyny affects divorce: economic restraint, sexual satisfaction, and childlessness. Many women escape economic restraint through divorcing their spouses when they are allowed to initiate a divorce.
for one or both spouses. It is estimated that 40% of all marriages have ended in divorce as of 2008. On average, first marriages that end in divorce last about eight years. Of the first marriages for women from 1955 to 1959, about 79 percent marked their 15th anniversary, compared with only 57 percent for women who married for the first time from 1985 to 1989. The median time between divorce and a second marriage was about three and a half years.
In 2009 the overall divorce rate was in decline in the U.S., but so was the marriage rate. A 1995 study found a wide range of unassociated factors including frequency of sex, wealth, race, and religious commitment.
In 2001, marriages between people of different faiths were three times more likely to be divorced than those of the same faith. In a 1993 study, members of two mainline Protestant religions had a 1 in 5 chance of being divorced in 5 years; a Catholic and an Evangelical, a one in three chance; a Jew and a Christian, a 40% chance.
The latter finding is contradicted by a study by the Barna Group
, that conducts polls of interest to Christians. They report that a higher divorce rate was associated with infrequent church attendance.
While cohabitation has been shown to be associated with higher divorce rates, a study indicates that divorce-prone couples tend to first cohabit, and not that cohabitation by itself increases the likelihood of divorce. In Saskatchewan Canada, cohabitation as spouses is treated identically in Family Court to civil marriage. The only difference is that it is unknown whether civilly married persons can civilly marry other persons prior to divorce, but they can become legally sanctioned and recognized spouses of others (under cohabitation legislation), prior to divorcing their first spouse.
Success in marriage has been associated with higher education and higher age. 81% of college graduates, over 26 years of age, who wed in the 1980s, were still married 20 years later. 65% of college graduates under 26 who married in the 1980s, were still married 20 years later. 49% of high school graduates under 26 years old who married in the 1980s, were still married 20 years later. Population studies have found that in 2004 and 2008, liberal-voting states have lower rates of divorce than conservative-voting states, possibly because people in liberal states tend to wait longer before getting married. In 2009, 2.9% of adults 35–39 without a college degree were divorced, compared with 1.6% with a college education.
The National Center for Health Statistics
reports that from 1975 to 1988 in the U.S., in families with children present, wives file for divorce in approximately two-thirds of cases. In 1975, 71.4% of the cases were filed by women, and in 1988, 65% were filed by women.
It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement without a hearing (either with or without lawyers/mediators/collaborative counsel) about the property, children and support issues.
A 2008 study by Jenifer L. Bratter and Rosalind B. King conducted on behalf of the Education Resources Information Center
examined whether crossing racial boundaries increased the risk of divorce. Using the 2002 National Survey of Family Growth (Cycle VI), the likelihood of divorce for interracial couples to that of same-race couples was compared. Comparisons across marriage cohorts revealed that, overall, interracial couples have higher rates of divorce, particularly for those that married during the late 1980s. The authors found that gender plays a significant role in interracial divorce dynamics: According to the adjusted models predicting divorce as of the 10th year of marriage, interracial marriages that are the most vulnerable involve White females and non-White males (with the exception of White females/Hispanic White males) relative to White/White couples. White wife/Black husband marriages are twice as likely to divorce by the 10th year of marriage compared to White/White couples, while White wife/Asian husband marriages are 59% more likely to end in divorce compared to White/White unions. Conversely, White men/non-White women couples show either very little or no differences in divorce rates. Asian wife/White husband marriages show only 4% greater likelihood of divorce by the 10th year of marriage than White/White couples. In the case of Black wife/White husband marriages, divorce by the 10th year of marriage is 44% less likely than among White/White unions. Intermarriages that did not cross a racial barrier, which was the case for White/Hispanic White couples, showed statistically similar likelihoods of divorcing as White/White marriages.
the lowest rate since 1979.
, and the magistrate could determine whether the reasons given were sufficient.
Divorce was rare in early Roman culture but as their empire
grew in power and authority Roman civil law embraced the maxim, "matrimonia debent esse libera" ("marriages ought to be free"), and either husband or wife could renounce the marriage at will. Though civil authority rarely intervened in divorces, social and familial taboos guaranteed that divorce occurred only after serious circumspection. The Christian emperors Constantine
and Theodosius restricted the grounds for divorce to grave cause, but this was relaxed by Justinian in the sixth century.
instituted by God
and Christ
indissoluble by mere human action.
Although divorce, as known today, was generally prohibited after the tenth century, separation of husband and wife and the annulment
of marriage were well-known. What is today referred to as "separate maintenance" (or "legal separation
") was termed "divorce a mensa et thoro" ("divorce from bed-and-board"). The husband and wife physically separated and were forbidden to live or cohabit together; but their marital relationship did not fully terminate. Civil courts had no power over marriage or divorce. The grounds for annulment were determined by Church authority and applied in ecclesiastical courts. Annulment was for canonical
causes of impediment existing at the time of the marriage. "For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio." The Church held that the sacrament of marriage produced one person from two, inseparable from each other: "By marriage the husband and wife are one person in law: that is, the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything." Since husband and wife became one person upon marriage, that oneness could only be annulled if the parties improperly entered into the marriage initially.
, marriage came to be considered a civil contract in the non-Catholic regions, and on that basis civil authorities gradually asserted their power to decree a "divorce a vinculo matrimonii", or "divorce from all the bonds of marriage". Since no precedents existed defining the circumstances under which marriage could be dissolved, civil courts heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and now considered divorce to be contrary to public policy
. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred vow
to the "innocent spouse". If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage". Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment
, adultery
, or "extreme cruelty".
There are four types of divorce in Japan: Divorce by agreement in which the divorce is mutual, divorce by mediation which happens in family court, divorce by decision of family court that takes place when a couple cannot complete a divorce through mediation, and divorce by judgment of district court.
was passed in 1954, and the Hindu Marriage Act
, in 1955 which legally permitted divorce to Hindus and other communities who chose to marry under these acts. Divorce can be sought by husband or wife on certain grounds, including: adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, and leprosy. Divorce is also legal based on mutual consent of both the spouses, which can be filed after at least one year of separated living. Mutual consent divorce can not be appealed against, and the law mandates a minimum period of six months (from the time divorce is applied for) for divorce to be granted.
Official figures of divorce rates are not available, but it has been estimated that 1 of 100 or another figure 11 of 1,000 marriages in India end up in divorce.
Various communities are governed by specific marital legislation, distinct to Hindu Marriage Act, and consequently have their own divorce laws:
An amendment to the marriage laws to allow divorce based on "irretrievable breakdown of marriage" (as alleged by one of the spouses) is currently under consideration in India. In June 2010, the Union Cabinet of India approved the Marriage Laws (Amendment) Bill 2010, which, if cleared by Parliament, would establish "irretrievable breakdown" as a new ground for divorce.
and marital jurisprudence
, divorce is accepted and referred to as talaq
. Khula
is the right of a woman in Islam to divorce or separate from her husband. The triple talaq is a mechanism for divorce which exists in Sunni sect of Islam while rejected by the Shia sect. Talaq (conflict) deals with the relationship between religious and secular systems for terminating the marriage in the conflict of laws
.
According to Yossef Rapoport, in the 15th century, the rate of divorce was higher than it is today in the modern Middle East
, which now has generally low rates of divorce. In 15th century Egypt
, Al-Sakhawi
recorded the marital history of 500 women
, the largest sample
on marriage in the Middle Ages
, and found that at least a third of all women in the Mamluk Sultanate
of Egypt and Syria
married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo
ended in divorce. In the early 20th century, some villages in western Java
and the Malay peninsula
had divorce rates as high as 70%.
The main causes in 2004 were:
According to this survey, husbands engaged in extramarital affairs in 75% of cases; wives in 25%. In cases of family strain, wives' families were the primary source of strain in 78%, compared to 22% of husbands' families. Emotional and physical abuse were more evenly split, with wives affected in 60% and husbands in 40% of cases. In 70% of workaholism-related divorces it was husbands who were the cause, and in 30%, wives. The 2004 survey found that 93% of divorce cases were petitioned by wives, very few of which were contested. 53% of divorces were of marriages that had lasted 10 to 15 years, with 40% ending after 5 to 10 years. The first 5 years are relatively divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce.
The age at which a person gets married is also believed to influence the likelihood of divorce; delaying marriage may provide more opportunity or experience in choosing a compatible partner.
and thus civil divorce (without the involvement of a religion) is also possible. Due to differing standards and procedures, a couple can be legally unmarried, married, or divorced by the state's definition, but have a different status as defined by a religious order. Other countries use religious law to administer marriages and divorces, eliminating this distinction. In these cases, religious officials are generally responsible for interpretation and implementation.
Islam
allows divorce, and it can be initiated by either the husband or the wife
. However, the initiations are subject to certain conditions and waiting periods, which are meant to force the initiating party to reconsider.
Dharmic religions do not allow divorce. Christian views of divorce
vary, with Catholic teaching allowing only annulment
, but most other denominations discouraging but allowing divorce. Jewish views of divorce differ, with Reform Judaism considering civil divorces adequate. Conservative and Orthodox Judaism require that the husband grant his wife a divorce in the form of a get
.
Several countries use sharia
(Islamic law) to administrate marriages and divorces. Marriage in Israel
is administered separately by each religious community (Jews, Christians, Muslims, and Druze), and there is no provision for interfaith marriages other than marrying in another country. For Jews, marriage and divorce are administered by Orthodox rabbis. Partners can file for divorce either in rabbinical court or Israeli civil court to have the household divided.
The Philippines
doesn't allow divorce because of this issue. As the Catholicism
is the majority religion there, Catholic organizations such as the CBCP
opposes the divorce to be in effect.
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. Evidence is given that among college-educated couples, the percentages of divorces initiated by women is approximately 90%.
A study has found that White female-Black male and White female-Asian male marriages are more prone to divorce than White-White pairings. Conversely, unions between White males and non-White females (and between Hispanics and non-Hispanic persons) have similar or lower risks of divorce than White-White marriages.
Regarding divorce settlements, according to the 2004 Grant Thornton survey in the UK, women obtained a better or considerably better settlement than men in 60% of cases. In 30% of cases the assets were split 50-50, and in only 10% of cases did men achieve better settlements (down from 24% the previous year). The report concluded that the percentage of shared residence
orders would need to increase in order for more equitable financial divisions to become the norm.
Some jurisdictions give unequal rights to men and women when filing for divorce.
For couples to Conservative or Orthodox Jewish law (which by Israeli civil law
includes all Jews in Israel), the husband must grant his wife a divorce through a document called a get
. If the man refuses, the woman can appeal to a court or the community to pressure the husband. A woman whose husband refuses to grant the get or who is missing is called an agunah
, is still married, and therefore cannot remarry. Under Orthodox law, children of an extramarital affair involving a married Jewish woman are considered mamzerim (illegitimate
) and cannot marry non-mamzerim.
Law:
Historical:
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties (unlike annulment
Annulment
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...
which declares the marriage null and void). Divorce laws vary considerably around the world but in most countries it requires the sanction of a court or other authority in a legal process. The legal process for divorce may also involve issues of spousal support
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
, child custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
, child support
Child support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
, distribution of property and division of debt. Where monogamy
Monogamy
Monogamy /Gr. μονός+γάμος - one+marriage/ a form of marriage in which an individual has only one spouse at any one time. In current usage monogamy often refers to having one sexual partner irrespective of marriage or reproduction...
is law, divorce allows each former partner to marry another; where polygyny
Polygyny
Polygyny is a form of marriage in which a man has two or more wives at the same time. In countries where the practice is illegal, the man is referred to as a bigamist or a polygamist...
is legal but polyandry
Polyandry
Polyandry refers to a form of marriage in which a woman has two or more husbands at the same time. The form of polyandry in which a woman is married to two or more brothers is known as "fraternal polyandry", and it is believed by many anthropologists to be the most frequently encountered...
is not, divorce allows the woman to marry another.
Between 1971 and 2011, five European countries legalised divorce: Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
, Portugal
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
, Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
and Malta. This leaves two countries in the world—the Philippines
Philippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
and Vatican City
Vatican City
Vatican City , or Vatican City State, in Italian officially Stato della Città del Vaticano , which translates literally as State of the City of the Vatican, is a landlocked sovereign city-state whose territory consists of a walled enclave within the city of Rome, Italy. It has an area of...
—that do not have a civil procedure for divorce.
"Divorcing one's parents" is a term sometimes used to refer to emancipation of minors
Emancipation of minors
An emancipated minor is a minor who is allowed to conduct a business or any other occupation on their own behalf or for their own account outside the influence of a parent or guardian. The minor will then have full contractual capacity to conclude contract with regard to the business. Whether...
.
Western law
In some Western jurisdictions, divorce (legally referred to as 'dissolution of marriage') does not require a party to assert fault on the part of their partner leading to the breakdown of their marriage. Prior to the onset of 'no-fault' statutes, a party would have to prove a ground, typically '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 the United Kingdom, Australia, the United States, Canada, South Africa, and New Zealand in the late 1960s and early 1970s. In 'no-fault' jurisdictions, a simple, general allegation of 'irreconcilable differences,' or 'irretrievable break-down' with respect to the marriage relationship, sufficed to establish the end of the marriage.In jurisdictions adopting the 'no-fault' principle in divorce proceedings, some courts may still take into account the behavior of the parties when dividing property, debts, evaluating custody and support—facts which almost always have considerable weight in fault proceedings. This is particularly true in custody cases, where the courts might consider many factors which mirror 'fault' grounds, such as drug abuse, alcoholism, violence, cruelty, instability, neglect and possibly the preference of an intelligent, mature child.
Despite this, in some countries (or states of the United States), the courts will seldom apply principles of fault, but might willingly hold a party liable for a breach of a fiduciary duty to his or her spouse (See for example, Family Code Sections 720 and 1100 of the California Family Code).
In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect. The terms of the divorce are usually determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses may have agreed to privately (this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable). In absence of agreement, a contested divorce may be stressful to the spouses. Contested divorces mean that one of several issues are required to be heard by a judge at trial level—this is more expensive and the parties will have to pay for a lawyer's time and preparation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate mutually acceptable resolution to conflicts. This principle in the United States is called 'Alternative Dispute Resolution' and continues to gain popularity.
In some other countries, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non-judiciary administrative entity. The effect of a divorce is that both parties are free to marry again.
The subject of divorce as a social phenomenon is an important research topic in sociology
Sociology
Sociology is the study of society. It is a social science—a term with which it is sometimes synonymous—which uses various methods of empirical investigation and critical analysis to develop a body of knowledge about human social activity...
. In many developed countries, divorce rates increased markedly during the twentieth century. Among the nations in which divorce has become commonplace are the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
and Scandinavia
Scandinavia
Scandinavia is a cultural, historical and ethno-linguistic region in northern Europe that includes the three kingdoms of Denmark, Norway and Sweden, characterized by their common ethno-cultural heritage and language. Modern Norway and Sweden proper are situated on the Scandinavian Peninsula,...
. The only Western country where divorce is not legal is the British Crown Dependency
Crown dependency
The Crown Dependencies are British possessions of the Crown, as opposed to overseas territories of the United Kingdom. They comprise the Channel Island Bailiwicks of Jersey and Guernsey in the English Channel, and the Isle of Man in the Irish Sea....
of Sark
Sark
Sark is a small island in the Channel Islands in southwestern English Channel, off the French coast of Normandy. It is a royal fief, geographically located in the Channel Islands in the Bailiwick of Guernsey, with its own set of laws based on Norman law and its own parliament. It has a population...
.
Types of divorce
Though divorce laws vary among jurisdictions, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support.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.
No-fault divorce
Under a no-fault divorceNo-fault divorce
No-fault divorce is a divorce in which the dissolution of a marriage requires neither a showing of wrong-doing of either party nor any evidentiary proceedings at all...
system, divorce 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 destroyed by these differences is enough for granting a divorce. Courts will not inquire into facts. A "yes" is enough, even if the other party vehemently says "no".
The application can be made by either party or by both parties jointly.
At-fault divorce
Prior to the late 1960s, nearly all countries which permitted divorce also required proof by one party that the other party had committed an act incompatible to the marriage. This was termed "grounds" for divorce (popularly called "fault") and was the only way to terminate a marriage. Most jurisdictions around the world still require such proof of fault. In the United States, no-fault divorce is now available in all 50 states and the District of Columbia—New YorkNew York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, the last state to still require fault-based divorce, passed a bill in 2010 permitting no-fault divorce.
Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion
Collusion
Collusion is an agreement between two or more persons, sometimes illegal and therefore secretive, to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage...
of the parties (working together to get the divorce), or condonation
Condonation
Condonance may be made when an accuser has previously forgiven or condoned the act about which they are complaining...
(approving the offense), connivance
Connivance
A legal finding of connivance may be made when an accuser has assisted in the act about which they are complaining. In some legal jurisdictions, and for certain behaviors, it may prevent the accuser from prevailing....
(tricking someone into committing an offense), or provocation
Provocation (legal)
In criminal law, provocation is a possible defense by excuse or exculpation alleging a sudden or temporary loss of control as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge...
by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.
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 marriage (less than 5 years)
- No children (or, in some states, when the spouses have resolved custody and set child support payments for children of the marriage)
- Minimal or no real property (no mortgageMortgage loanA mortgage loan is a loan secured by real property through the use of a mortgage note which evidences the existence of the loan and the encumbrance of that realty through the granting of a mortgage which secures the loan...
) - Marital property is under a threshold (around $35,000 not including vehicles)
- Each spouse's personal property is under a threshold (typically the same as marital property)
Uncontested divorce
It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children. Though this may be necessary, the courts would prefer parties come to an agreement prior to entering court.Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them. In the majority of cases, forms are acquired from their respective state websites and a filing fee is paid to the state. Most U.S. states charge between $175 and $350 for a simple divorce filing. Collaborative divorce and mediated divorce are considered uncontested divorces. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, many state court systems are experiencing an increasing proportion of pro se (i.e., litigants represent themselves without a lawyer) in divorce cases. In San Diego, for example, the number of divorce filings involving at least one self-representing litigant rose from 46% in 1992 to 77% in 2000, and in Florida from 66% in 1999 to 73% in 2001. Urban courts in California report that approximately 80% of the new divorce filings are filed pro se.
Collaborative divorce
Collaborative divorce is a method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneysLawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.
Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law
Collaborative law
Collaborative law is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both...
process end prematurely. Most attorneys who practice collaborative divorce claim that it can be more cost-effective than other divorce methods. e.g., going to court. Expense, they say, has to be looked at under the headings of financial and emotional. Also, the experience of working collaboratively tends to improve communication between the parties, particularly when collaborative coaches are involved and the possibility of going back to court post-separation or divorce is minimised. In the course of the collaboration, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot be used in court except by agreement between the parties.
Neither can any of the professional team retained in the course of the collaboration be brought to court. Essentially, they have the same protections as in mediation. There are two exceptions: 1) Any affidavit sworn in the course of the collaboration and vouching documentation attaching to same and 2) any interim agreement made and signed off in the course of the collaboration or correspondence relating thereto. The parties are in control of the time they are prepared to give their collaboration. Some people need a lot of time to complete and others will reach solutions in a few meetings. Collaborative practitioners offer a tightly orchestrated model with meetings scheduled in advance every two weeks and the range of items to be discussed apportioned in advance of signing up as well as the more open ended process, the clients decide.
Electronic divorce
Electronic divorce is a means that allows two persons married under certain jurisdictions, such as PortugalPortugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
, to file an electronic
Computer file
A computer file is a block of arbitrary information, or resource for storing information, which is available to a computer program and is usually based on some kind of durable storage. A file is durable in the sense that it remains available for programs to use after the current program has finished...
request for a no-fault, collaborative divorce in a non-judiciary administrative entity. Specific cases, with no children, real property, alimony
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
, or common address, can be decreed as summary within one hour.
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. Mediation sessions can include either party's attorneys, a neutral attorney, or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all. Divorce mediators may be attorneys who have experience in divorce cases or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters. Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.Polygyny & Divorce
PolygynyPolygyny
Polygyny is a form of marriage in which a man has two or more wives at the same time. In countries where the practice is illegal, the man is referred to as a bigamist or a polygamist...
is a significant structural factor governing divorce in countries where this is permitted. Little-to-no analysis has been completed to explicitly explain the link between marital instability and polygyny which leads to divorce. The frequency of divorce rises in polygynous marriages compared to monogamous relationships. Within polygynous unions, differences in conjugal stability are found to occur by wife order. There are 3 main mechanisms through which polygyny affects divorce: economic restraint, sexual satisfaction, and childlessness. Many women escape economic restraint through divorcing their spouses when they are allowed to initiate a divorce.
United States
In 2008, 49% of all marriages involve a remarriageRemarriage
Remarriage is a marriage that takes place after a previous marital union has ended, as through divorce or widowhood.Some individuals are more likely to remarry than others; the likelihood can differ based on previous relationship status , level of interest in establishing a new romantic...
for one or both spouses. It is estimated that 40% of all marriages have ended in divorce as of 2008. On average, first marriages that end in divorce last about eight years. Of the first marriages for women from 1955 to 1959, about 79 percent marked their 15th anniversary, compared with only 57 percent for women who married for the first time from 1985 to 1989. The median time between divorce and a second marriage was about three and a half years.
In 2009 the overall divorce rate was in decline in the U.S., but so was the marriage rate. A 1995 study found a wide range of unassociated factors including frequency of sex, wealth, race, and religious commitment.
In 2001, marriages between people of different faiths were three times more likely to be divorced than those of the same faith. In a 1993 study, members of two mainline Protestant religions had a 1 in 5 chance of being divorced in 5 years; a Catholic and an Evangelical, a one in three chance; a Jew and a Christian, a 40% chance.
The latter finding is contradicted by a study by the Barna Group
The Barna Group
The Barna Group is an evangelical Christian polling firm based in Ventura, California.-Overview:It consists of five divisions focusing on primary research ; communications tools ; printed resources ; leadership development for young people ; and church facilitation and enhancement...
, that conducts polls of interest to Christians. They report that a higher divorce rate was associated with infrequent church attendance.
While cohabitation has been shown to be associated with higher divorce rates, a study indicates that divorce-prone couples tend to first cohabit, and not that cohabitation by itself increases the likelihood of divorce. In Saskatchewan Canada, cohabitation as spouses is treated identically in Family Court to civil marriage. The only difference is that it is unknown whether civilly married persons can civilly marry other persons prior to divorce, but they can become legally sanctioned and recognized spouses of others (under cohabitation legislation), prior to divorcing their first spouse.
Success in marriage has been associated with higher education and higher age. 81% of college graduates, over 26 years of age, who wed in the 1980s, were still married 20 years later. 65% of college graduates under 26 who married in the 1980s, were still married 20 years later. 49% of high school graduates under 26 years old who married in the 1980s, were still married 20 years later. Population studies have found that in 2004 and 2008, liberal-voting states have lower rates of divorce than conservative-voting states, possibly because people in liberal states tend to wait longer before getting married. In 2009, 2.9% of adults 35–39 without a college degree were divorced, compared with 1.6% with a college education.
The National Center for Health Statistics
National Center for Health Statistics
National Center for Health Statistics is a division of the United States federal agency the Centers for Disease Control and Prevention . As such, NCHS is under the United States Department of Health and Human Services...
reports that from 1975 to 1988 in the U.S., in families with children present, wives file for divorce in approximately two-thirds of cases. In 1975, 71.4% of the cases were filed by women, and in 1988, 65% were filed by women.
It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement without a hearing (either with or without lawyers/mediators/collaborative counsel) about the property, children and support issues.
A 2008 study by Jenifer L. Bratter and Rosalind B. King conducted on behalf of the Education Resources Information Center
Education Resources Information Center
ERIC - the Education Resources Information Center - is an online digital library of education research and information. ERIC is sponsored by the Institute of Education Sciences of the U.S. Department of Education...
examined whether crossing racial boundaries increased the risk of divorce. Using the 2002 National Survey of Family Growth (Cycle VI), the likelihood of divorce for interracial couples to that of same-race couples was compared. Comparisons across marriage cohorts revealed that, overall, interracial couples have higher rates of divorce, particularly for those that married during the late 1980s. The authors found that gender plays a significant role in interracial divorce dynamics: According to the adjusted models predicting divorce as of the 10th year of marriage, interracial marriages that are the most vulnerable involve White females and non-White males (with the exception of White females/Hispanic White males) relative to White/White couples. White wife/Black husband marriages are twice as likely to divorce by the 10th year of marriage compared to White/White couples, while White wife/Asian husband marriages are 59% more likely to end in divorce compared to White/White unions. Conversely, White men/non-White women couples show either very little or no differences in divorce rates. Asian wife/White husband marriages show only 4% greater likelihood of divorce by the 10th year of marriage than White/White couples. In the case of Black wife/White husband marriages, divorce by the 10th year of marriage is 44% less likely than among White/White unions. Intermarriages that did not cross a racial barrier, which was the case for White/Hispanic White couples, showed statistically similar likelihoods of divorcing as White/White marriages.
Europe
One study estimated that legal reforms accounted for about 20% of the increase in divorce rates in Europe between 1960 and 2002.United Kingdom
The rate of divorce in the United Kingdom has been dropping in recent years. In 2007 the divorce rate in England and Wales was recorded at 11.9 people per every 1000 (1.2%) of the married population. This is the lowest divorce rate recorded since 1981. It fell again in 2008 to 11.5 per thousand,the lowest rate since 1979.
Australia
In Australia, nearly every third marriage ends in divorce. After reaching a peak divorce rate of 2.7 per 1000 residents in 2001, the Australian rate declined to 2.3 per 1000 in 2007.Japan
In Japan, divorces were on a generally upward trend from the 1960s until 2002 when they hit a peak of 290,000. Since then, both the number of divorces and the divorce rate have declined for six years straight. In 2010, the number of divorces totaled 251,000, and the divorce rate was 1.99 (per 1,000 population).Greco-Roman culture
The ancient Athenians liberally allowed divorce, but the person requesting divorce had to submit the request to a magistrateMagistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
, and the magistrate could determine whether the reasons given were sufficient.
Divorce was rare in early Roman culture but as their empire
Roman Empire
The Roman Empire was the post-Republican period of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean....
grew in power and authority Roman civil law embraced the maxim, "matrimonia debent esse libera" ("marriages ought to be free"), and either husband or wife could renounce the marriage at will. Though civil authority rarely intervened in divorces, social and familial taboos guaranteed that divorce occurred only after serious circumspection. The Christian emperors Constantine
Constantine I
Constantine the Great , also known as Constantine I or Saint Constantine, was Roman Emperor from 306 to 337. Well known for being the first Roman emperor to convert to Christianity, Constantine and co-Emperor Licinius issued the Edict of Milan in 313, which proclaimed religious tolerance of all...
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. By the ninth or tenth century, the divorce rate had been greatly reduced under the influence of the Church, which considered marriage a sacramentSacrament
A sacrament is a sacred rite recognized as of particular importance and significance. There are various views on the existence and meaning of such rites.-General definitions and terms:...
instituted by God
God
God is the English name given to a singular being in theistic and deistic religions who is either the sole deity in monotheism, or a single deity in polytheism....
and Christ
Christ
Christ is the English term for the Greek meaning "the anointed one". It is a translation of the Hebrew , usually transliterated into English as Messiah or Mashiach...
indissoluble by mere human action.
Although divorce, as known today, was generally prohibited after the tenth century, separation of husband and wife and the annulment
Annulment
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...
of marriage were well-known. What is today referred to as "separate maintenance" (or "legal separation
Legal separation
Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally binding consent decree...
") was termed "divorce a mensa et thoro" ("divorce from bed-and-board"). The husband and wife physically separated and were forbidden to live or cohabit together; but their marital relationship did not fully terminate. Civil courts had no power over marriage or divorce. The grounds for annulment were determined by Church authority and applied in ecclesiastical courts. Annulment was for canonical
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
causes of impediment existing at the time of the marriage. "For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio." The Church held that the sacrament of marriage produced one person from two, inseparable from each other: "By marriage the husband and wife are one person in law: that is, the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything." Since husband and wife became one person upon marriage, that oneness could only be annulled if the parties improperly entered into the marriage initially.
Secularisation in Europe and United States
After the ReformationReformation
- Movements :* Protestant Reformation, an attempt by Martin Luther to reform the Roman Catholic Church that resulted in a schism, and grew into a wider movement...
, marriage came to be considered a civil contract in the non-Catholic regions, and on that basis civil authorities gradually asserted their power to decree a "divorce a vinculo matrimonii", or "divorce from all the bonds of marriage". Since no precedents existed defining the circumstances under which marriage could be dissolved, civil courts heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and now considered divorce to be contrary to public policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
. 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
Vow
A vow is a promise or oath.-Marriage vows:Marriage vows are binding promises each partner in a couple makes to the other during a wedding ceremony. Marriage customs have developed over history and keep changing as human society develops...
to the "innocent spouse". If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage". Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment
Abandonment
The term abandonment has a multitude of uses, legal and extra-legal. This "signpost article" provides a guide to the various legal and quasi-legal uses of the word and includes links to articles that deal with each of the distinct concepts at greater length...
, adultery
Adultery
Adultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...
, or "extreme cruelty".
Japan
In the Edo Period (1603–1868), only husbands could divorce their wives by writing letters of divorce. But actually, their relatives or marriage arrangers often kept these letters and tried to restore the marriages. It was not allowed for wives to divorce their husbands. Some wives were able to gain sanctuary in certain Shinto "divorce temples" for several years, and were able to obtain a divorce thereby. In 19th century Japan, at least one in eight marriages ended in divorce.There are four types of divorce in Japan: Divorce by agreement in which the divorce is mutual, divorce by mediation which happens in family court, divorce by decision of family court that takes place when a couple cannot complete a divorce through mediation, and divorce by judgment of district court.
India
On an all-India level, the Special Marriage ActSpecial Marriage Act, 1954
The main reason behind passing the Special Marriage Act, 1954 was to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party...
was passed in 1954, and the Hindu Marriage Act
Hindu Marriage Act
The Hindu Marriage Act was established in 1955 as part of the Hindu Code Bills. Three other important acts were also created during this time and they include the Hindu Succession Act , the Hindu Minority and Guardianship Act , and the Hindu Adoptions and Maintenance Act...
, in 1955 which legally permitted divorce to Hindus and other communities who chose to marry under these acts. Divorce can be sought by husband or wife on certain grounds, including: adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, and leprosy. Divorce is also legal based on mutual consent of both the spouses, which can be filed after at least one year of separated living. Mutual consent divorce can not be appealed against, and the law mandates a minimum period of six months (from the time divorce is applied for) for divorce to be granted.
Official figures of divorce rates are not available, but it has been estimated that 1 of 100 or another figure 11 of 1,000 marriages in India end up in divorce.
Various communities are governed by specific marital legislation, distinct to Hindu Marriage Act, and consequently have their own divorce laws:
- The Parsi Marriage and Divorce Act, 1936
- The Dissolution of Muslim Marriage act, 1939
- The Foreign Marriage Act, 1969
An amendment to the marriage laws to allow divorce based on "irretrievable breakdown of marriage" (as alleged by one of the spouses) is currently under consideration in India. In June 2010, the Union Cabinet of India approved the Marriage Laws (Amendment) Bill 2010, which, if cleared by Parliament, would establish "irretrievable breakdown" as a new ground for divorce.
Islam
In Islamic lawSharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
and marital jurisprudence
Islamic marital jurisprudence
In Islamic law , marriage is a legal bond and social contract between a man and a woman. Islam commends marriage, with the age of marriage being whenever the individuals feel ready, financially and emotionally...
, divorce is accepted and referred to as talaq
Talaq (Nikah)
In Islam there are separate rules for divorce for men and women under the terms of Islamic law . When a man has initiated a divorce the procedure is called . When a woman has initiated a divorce it is called khula ....
. Khula
Khula
Khula is the right of a woman in Islam to seek a divorce or separation from her husband. More accurately, it is merely the right of a wife to seek a release from the marriage bond, similar to the Get in Judaic law, but unlike the latter where the husband has unilateral right to refuse, a Muslim...
is the right of a woman in Islam to divorce or separate from her husband. The triple talaq is a mechanism for divorce which exists in Sunni sect of Islam while rejected by the Shia sect. Talaq (conflict) deals with the relationship between religious and secular systems for terminating the marriage in the conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
.
According to Yossef Rapoport, in the 15th century, the rate of divorce was higher than it is today in the modern Middle East
Middle East
The Middle East is a region that encompasses Western Asia and Northern Africa. It is often used as a synonym for Near East, in opposition to Far East...
, which now has generally low rates of divorce. In 15th century Egypt
Egypt
Egypt , officially the Arab Republic of Egypt, Arabic: , is a country mainly in North Africa, with the Sinai Peninsula forming a land bridge in Southwest Asia. Egypt is thus a transcontinental country, and a major power in Africa, the Mediterranean Basin, the Middle East and the Muslim world...
, Al-Sakhawi
Al-Sakhawi
Shams al-Din Muhammad ibn `Abd al-Rahman al-Sakhawi was a reputable Shafi'i Muslim hadith scholar and historian who was born in Cairo. "Al-Sakhawi" refers to the village of Sakha in Egypt, where his relatives belonged. He was a prolific writer that excelled in the knowledge of hadith, tafsir,...
recorded the marital history of 500 women
Women in Islam
The study of women in Islam investigates the role of women within the religion of Islam. The complex relationship between women and Islam is defined by Islamic texts, the history and culture of the Muslim world...
, the largest sample
Sampling (statistics)
In statistics and survey methodology, sampling is concerned with the selection of a subset of individuals from within a population to estimate characteristics of the whole population....
on marriage in the Middle Ages
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
, and found that at least a third of all women in the Mamluk Sultanate
Mamluk Sultanate (Cairo)
The Mamluk Sultanate of Egypt was the final independent Egyptian state prior to the establishment of the Muhammad Ali Dynasty in 1805. It lasted from the overthrow of the Ayyubid Dynasty until the Ottoman conquest of Egypt in 1517. The sultanate's ruling caste was composed of Mamluks, Arabised...
of Egypt and Syria
Syria
Syria , officially the Syrian Arab Republic , is a country in Western Asia, bordering Lebanon and the Mediterranean Sea to the West, Turkey to the north, Iraq to the east, Jordan to the south, and Israel to the southwest....
married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo
Cairo
Cairo , is the capital of Egypt and the largest city in the Arab world and Africa, and the 16th largest metropolitan area in the world. Nicknamed "The City of a Thousand Minarets" for its preponderance of Islamic architecture, Cairo has long been a centre of the region's political and cultural life...
ended in divorce. In the early 20th century, some villages in western Java
Java
Java is an island of Indonesia. With a population of 135 million , it is the world's most populous island, and one of the most densely populated regions in the world. It is home to 60% of Indonesia's population. The Indonesian capital city, Jakarta, is in west Java...
and the Malay peninsula
Malay Peninsula
The Malay Peninsula or Thai-Malay Peninsula is a peninsula in Southeast Asia. The land mass runs approximately north-south and, at its terminus, is the southern-most point of the Asian mainland...
had divorce rates as high as 70%.
Causes of divorce
An annual study in the UK by management consultants Grant Thornton, estimates the main proximal causes of divorce based on surveys of matrimonial lawyers.The main causes in 2004 were:
- AdulteryAdulteryAdultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...
; Extramarital sexExtramarital sexExtramarital sex occurs when a married person engages in sexual activity with someone other than his or her marriage partner.Where extramarital sexual relations breach a sexual norm it may also be referred to as adultery, fornication, philandery, or infidelity...
; InfidelityInfidelityIn many intimate relationships in many cultures there is usually an express or implied expectation of exclusivity, especially in sexual matters. Infidelity most commonly refers to a breach of the expectation of sexual exclusivity.Infidelity can occur in relation to physical intimacy and/or...
- 27% - Domestic violenceDomestic violenceDomestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence , is broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, or cohabitation...
- 17% - Midlife crisisMidlife Crisis"Midlife Crisis" is a song by the American rock band Faith No More. It was released on May 26, 1992 as the first single from their fourth album, Angel Dust...
- 13% - AddictionAddictionHistorically, addiction has been defined as physical and psychological dependence on psychoactive substances which cross the blood-brain barrier once ingested, temporarily altering the chemical milieu of the brain.Addiction can also be viewed as a continued involvement with a substance or activity...
s, e.g. alcoholismAlcoholismAlcoholism is a broad term for problems with alcohol, and is generally used to mean compulsive and uncontrolled consumption of alcoholic beverages, usually to the detriment of the drinker's health, personal relationships, and social standing...
and gambling - 6% - WorkaholismWorkaholicA workaholic is a person who is addicted to work.The term generally implies that the person enjoys their work; it can also imply that they simply feel compelled to do it...
- 6%
According to this survey, husbands engaged in extramarital affairs in 75% of cases; wives in 25%. In cases of family strain, wives' families were the primary source of strain in 78%, compared to 22% of husbands' families. Emotional and physical abuse were more evenly split, with wives affected in 60% and husbands in 40% of cases. In 70% of workaholism-related divorces it was husbands who were the cause, and in 30%, wives. The 2004 survey found that 93% of divorce cases were petitioned by wives, very few of which were contested. 53% of divorces were of marriages that had lasted 10 to 15 years, with 40% ending after 5 to 10 years. The first 5 years are relatively divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce.
The age at which a person gets married is also believed to influence the likelihood of divorce; delaying marriage may provide more opportunity or experience in choosing a compatible partner.
Religion and divorce
In some countries (commonly in Europe and North America), the government defines and administers marriages and divorces. While ceremonies may be performed by religious officials on behalf of the state, a civil marriageCivil marriage
Civil marriage is marriage performed by a government official and not a religious organization.-History:Every country maintaining a population registry of its residents keeps track of marital status, and most countries believe that it is their responsibility to register married couples. Most...
and thus civil divorce (without the involvement of a religion) is also possible. Due to differing standards and procedures, a couple can be legally unmarried, married, or divorced by the state's definition, but have a different status as defined by a religious order. Other countries use religious law to administer marriages and divorces, eliminating this distinction. In these cases, religious officials are generally responsible for interpretation and implementation.
Islam
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
allows divorce, and it can be initiated by either the husband or the wife
Khula
Khula is the right of a woman in Islam to seek a divorce or separation from her husband. More accurately, it is merely the right of a wife to seek a release from the marriage bond, similar to the Get in Judaic law, but unlike the latter where the husband has unilateral right to refuse, a Muslim...
. However, the initiations are subject to certain conditions and waiting periods, which are meant to force the initiating party to reconsider.
Dharmic religions do not allow divorce. Christian views of divorce
Christian views of divorce
Christian views on divorce find their basis both in biblical sources dating to the giving of the law to Moses and political developments in the Christian world long after standardization of the Bible. According to the synoptic Gospels, Jesus emphasized the permanence of marriage, but also its...
vary, with Catholic teaching allowing only annulment
Annulment
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...
, but most other denominations discouraging but allowing divorce. Jewish views of divorce differ, with Reform Judaism considering civil divorces adequate. Conservative and Orthodox Judaism require that the husband grant his wife a divorce in the form of a get
Get (divorce document)
A is a divorce document, which according to Jewish Law, must be presented by a husband to his wife to effect their divorce. The essential text of the is quite short: "You are hereby permitted to all men," i.e., the wife is no longer a married woman, and the laws of adultery no longer apply...
.
Several countries use sharia
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
(Islamic law) to administrate marriages and divorces. Marriage in Israel
Marriage in Israel
Marriages in Israel can only be performed under the auspices of the religious community to which couples belong. Matrimonial law is based on the Millet or confessional community system employed in the Ottoman Empire, which was not modified during the British Mandate and remains in force in the...
is administered separately by each religious community (Jews, Christians, Muslims, and Druze), and there is no provision for interfaith marriages other than marrying in another country. For Jews, marriage and divorce are administered by Orthodox rabbis. Partners can file for divorce either in rabbinical court or Israeli civil court to have the household divided.
The Philippines
Philippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
doesn't allow divorce because of this issue. As the Catholicism
Catholicism
Catholicism is a broad term for the body of the Catholic faith, its theologies and doctrines, its liturgical, ethical, spiritual, and behavioral characteristics, as well as a religious people as a whole....
is the majority religion there, Catholic organizations such as the CBCP
Catholic Bishops' Conference of the Philippines
The Catholic Bishops' Conference of the Philippines is the official organization of the Catholic episcopacy in the Philippines. Archbishop Jose S. Palma of Cebu is the current president while Archbishop Socrates B. Villegas of Lingayen-Dagupan is the current Vice President. The CBCP has 99 active...
opposes the divorce to be in effect.
Gender and divorce
According to a study published in the American Law and Economics Review, women currently file slightly more than two-thirds of divorce cases in the United States.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. Evidence is given that among college-educated couples, the percentages of divorces initiated by women is approximately 90%.
A study has found that White female-Black male and White female-Asian male marriages are more prone to divorce than White-White pairings. Conversely, unions between White males and non-White females (and between Hispanics and non-Hispanic persons) have similar or lower risks of divorce than White-White marriages.
Regarding divorce settlements, according to the 2004 Grant Thornton survey in the UK, women obtained a better or considerably better settlement than men in 60% of cases. In 30% of cases the assets were split 50-50, and in only 10% of cases did men achieve better settlements (down from 24% the previous year). The report concluded that the percentage of shared residence
Shared residency in English law
Shared residence, or joint residence, refers to the situation where the child of parents who have divorced or separated reside with each parent at different times, and each parent has equal status in law. In English family law s8 Children Act 1989 defines a residence order as one "...settling the...
orders would need to increase in order for more equitable financial divisions to become the norm.
Some jurisdictions give unequal rights to men and women when filing for divorce.
For couples to Conservative or Orthodox Jewish law (which by Israeli civil law
Marriage in Israel
Marriages in Israel can only be performed under the auspices of the religious community to which couples belong. Matrimonial law is based on the Millet or confessional community system employed in the Ottoman Empire, which was not modified during the British Mandate and remains in force in the...
includes all Jews in Israel), the husband must grant his wife a divorce through a document called a get
Get (divorce document)
A is a divorce document, which according to Jewish Law, must be presented by a husband to his wife to effect their divorce. The essential text of the is quite short: "You are hereby permitted to all men," i.e., the wife is no longer a married woman, and the laws of adultery no longer apply...
. If the man refuses, the woman can appeal to a court or the community to pressure the husband. A woman whose husband refuses to grant the get or who is missing is called an agunah
Agunah
Agunah ; literally 'anchored or chained') is a halachic term for a Jewish woman who is "chained" to her marriage. The classic case of this, is a man who has left on a journey, and has not returned, or has gone into battle and is MIA...
, is still married, and therefore cannot remarry. Under Orthodox law, children of an extramarital affair involving a married Jewish woman are considered mamzerim (illegitimate
Legitimacy (law)
At common law, legitimacy is the status of a child who is born to parents who are legally married to one another; and of a child who is born shortly after the parents' divorce. In canon and in civil law, the offspring of putative marriages have been considered legitimate children...
) and cannot marry non-mamzerim.
See also
- AlimonyAlimonyAlimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
- AnnulmentAnnulmentAnnulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...
- Child supportChild supportIn family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
- Divorce of same-sex couples—legal aspects, divorce rates
- Divorce partyDivorce partyA divorce party is a way to have a ceremony that celebrates the end of a marriage or civil union. Types of divorce parties vary greatly, and can involve either one or both members of the separating couple...
- Dysfunctional familyDysfunctional familyA dysfunctional family is a family in which conflict, misbehavior, and often abuse on the part of individual members occur continually and regularly, leading other members to accommodate such actions. Children sometimes grow up in such families with the understanding that such an arrangement is...
- Family lawFamily lawFamily law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
- Emancipation of minorsEmancipation of minorsAn emancipated minor is a minor who is allowed to conduct a business or any other occupation on their own behalf or for their own account outside the influence of a parent or guardian. The minor will then have full contractual capacity to conclude contract with regard to the business. Whether...
- Fear of commitmentFear of commitmentFear of commitment in much popular literature refers to avoidance of long-term partnership and/or marriage but the problem is often much more pervasive, affecting school, work, and home life as well....
- Grey divorceGrey divorceGrey divorce is a term referring to the demographic trend of an increasing divorce rate for older couples in long-lasting marriages...
- Implications of divorceImplications of divorce- Medical and psychological implications :Recent 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...
- List of largest divorce settlements
- Men's rightsMen's rightsMen's rights is an umbrella term, encompassing the political rights, entitlements, and freedoms given or denied to males within a nation or culture....
- Relationship counselingRelationship counselingRelationship counseling is the process of counseling the parties of a relationship in an effort to recognize and to better manage or reconcile troublesome differences and repeating patterns of distress...
- Relationship educationRelationship EducationRelationship education presents and promotes the principles and practices of premarital education, relationship resources, relationship restoration, relationship maintenance, and research-based marriage preparation.-History:...
- Single-parent
Law:
- Law and divorce around the worldLaw and divorce around the worldThis article is a general overview of divorce laws around the world. Every nation in the world except the Philippines and the Vatican City allow some form of divorce.- Muslim societies :...
- Legal separationLegal separationLegal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally binding consent decree...
- Primary physical custodyPrimary physical custodyPrimary physical custody is a term that is often used in child custody orders to denote the parent with whom a child spends or lives the great majority of time with...
Historical:
- Wife selling (Chinese custom)
- Wife selling (English custom)
Further reading
- Alford, William P.William P. AlfordWilliam P. Alford is a US legal scholar. He is currently Henry L. Stimson Professor of Law and Vice Dean for the Graduate Program and International Legal Studies at Harvard Law School...
, "Have You Eaten, Have You Divorced? Debating the Meaning of Freedom in Marriage in China", in Realms of Freedom in Modern China (William C. Kirby ed., Stanford University Press, 2004).
External links
- Eurostat - Statistics Explained - Marriage and divorce statistics
- Divorce rates across countries by EurostatEurostatEurostat is a Directorate-General of the European Commission located in Luxembourg. Its main responsibilities are to provide the European Union with statistical information at European level and to promote the integration of statistical methods across the Member States of the European Union,...