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Divorce or dissolution of marriage is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the marital status of being single. A divorce does not declare a marriage null and void, as in an annulment, but rather declares that a fully consummated marriage is irretrievably broken and that it should be dissolved, allowing the parties to marry other individuals.
Divorce laws vary considerably around the world.
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Divorce or dissolution of marriage is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the marital status of being single. A divorce does not declare a marriage null and void, as in an annulment, but rather declares that a fully consummated marriage is irretrievably broken and that it should be dissolved, allowing the parties to marry other individuals.
Divorce laws vary considerably around the world. Divorce is not permitted in some countries, such as in Malta and in the Philippines, though an annulment is permitted.
The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt, though these matters are usually only ancillary or consequential to the dissolution of the marriage.
In some jurisdictions divorce does not require a party to claim fault of their partner that leads to the breakdown of marriage. But even in jurisdictions which have adopted the "no fault" principle in divorce proceedings, a court may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support.
In most jurisdictions, a divorce must be certified by a court of law to become effective. The terms of the divorce are usually determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses may have agreed to privately. In the absence of agreement, a contested divorce may be stressful to the spouses and lead to expensive litigation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts. In some other countries, like Portugal, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non judiciary administrative entity, where also can be served an Electronic Divorce since March 2008. The effect of a divorce is that both parties are free to marry again. (see bigamy)
In cases involving children, governments have a pressing interest in ensuring that disputes between parents do not spill over into the family courts. One way of doing this is through the encouragement of a parenting plan. In the United States, all states now require parents to file a parenting plan when they legally separate or divorce.
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, Canada, and Scandinavia. Japan , France, and Italy retain a lower divorce rate, and it has decreased recently.
Types of divorce
Though divorce laws vary between jurisdiction, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, 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 divorce system the dissolution of a marriage does not require an allegation or proof of fault of either party. No-fault divorce has been in operation in Australia since 1975. In Australia the only ground for divorce is separation (or "deemed separation") for 12 months. The application can be made by either party or by both parties jointly.
Forty-nine states of the United States have adopted no-fault divorce laws, with grounds for divorce including incompatibility, irreconcilable differences, and irremediable breakdown of the marriage.
In the United Kingdom, to obtain a no-fault divorce the parties must have been separated for 2 years if both parties agree, and 5 years if one party does not agree.
At-fault divorce
Prior to 1975, countries which permitted divorces 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, only New York state still requires fault for a divorce.
Fault-based divorces can be contested and may involve allegations of collusion of the parties, or condonation, connivance, 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.
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 (under 5 years)
- No children (or, in some states, they have resolved custody and set child support payments)
- Minimal or no real property (no mortgage)
- Marital property is under a threshold (around $35,000 not including vehicles)
- Each spouse's personal property is under a threshold (typically the same as marital property)
Uncontested divorce
It is estimated that upwards of 95% of divorces in the US 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, deal with the custody of their children.
Collaborative divorce
Collaborative divorce is becoming a popular method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support. Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be substantially less expensive than other divorce methods (regular divorce or mediation). However, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot later be used in further legal proceedings, as the collaborative process is confidential proceedings. Furthermore, there are no set enforceable time lines for completion of a divorce using collaborative divorce.
Mediated divorce
Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the husband and wife 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 the party's attorneys or 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 without attorneys. Divorce mediators may be attorneys who have experience in divorce cases. Divorce mediation can be significantly less expensive than litigation. . The adherence rate to mediated agreements is much higher than that of adherence to court orders.
History
In contrast to the Western world where divorce was relatively uncommon until modern times, divorce was a common occurrence in at least two pre-modern societies: Japan and the Muslim world.
Mesopotamia
Divorce existed in antiquity, dating at least back to ancient Mesopotamia.
Greco-Roman culture
The ancient Athenians liberally allowed divorce, but the person requesting divorce had to submit the request to a magistrate, and the magistrate could determine whether the reasons given were sufficient.
Divorce was rare in early Roman culture but as their empire grew in power and authority Roman civil law embraced the maxim, “matrimonia debent esse libera” ("marriages ought to be free"), and either husband or wife could renounce the marriage at will. Though civil authority rarely intervened in divorces, social and familial taboos guaranteed that divorce occurred only after serious circumspection.
Japan
In 19th century Japan, at least one in eight marriages ended in divorce.
Islam
In Islamic law and marital jurisprudence, divorce is accepted and referred to as talaq. However, divorce is considered the most hated of all lawful things in the sight of Allah.
In the medieval Islamic world and the Ottoman Empire, 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%.
See also
Further reading
- Mathews, J. "Dating a Married Man: Memoirs from the "Other Women". 2008. ISBN 1440450048
- Gallagher, Maggie. "The Abolition of Marriage." Regnery Publishing, 1996. ISBN 0-89526-464-1.
- Haltzman, Scott. Secrets of Happily Married Men: Eight Ways to Win Your Wife's Heart Forever. John Wiley & Sons Inc., 2005 ISBN 0787979597.
- Lester, David. "Time-Series Versus Regional Correlates of Rates of Personal Violence." Death Studies 1993: 529-534.
- McLanahan, Sara and Gary Sandefur. Growing Up with a Single Parent; What Hurts, What Helps. Cambridge: Harvard University Press, 1994: 82.
- Mercer, Diana and Marsha Kline Pruett. Your Divorce Advisor: A Lawyer and Psychologist Guide You Through the Legal and Emotional Landscape of Divorce. Fireside, 2001. ISBN 0-684-87068-1 and ISBN 978-0684870687.
- Morowitz, Harold J. "Hiding in the Hammond Report." Hospital Practice August 1975; 39.
- Office for National Statistics (UK). Mortality Statistics: Childhood, Infant and Perinatal, Review of the Registrar General on Deaths in England and Wales, 2000, Series DH3 33, 2002.
- U.S. Bureau of the Census. Marriage and Divorce. General US survey information.
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