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Divorce (or the dissolution of marriage) is the final termination of a marital union, cancelling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties. In most countries divorce 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.

In most Western countries, a divorce does not declare a marriage null and void, as in an annulment, but it does cancel the married status of the parties. Where monogamy is law, this allows each former partner to marry another. Where polygyny is legal, divorce allows the woman to marry another. 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. From 1971 to 1996, four European countries legalised divorce: Spain, Italy, Portugal and the Republic of Ireland.[1]

Contents

Western law

In some Western 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; facts which almost always have considerable weight in fault proceedings.

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, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non-judiciary administrative entity. In Portugal, this option has been available by "electronic divorce" since March 2008. The effect of a divorce is that both parties are free to marry again (in contrast to bigamy).

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. Japan 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 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 divorce system, the dissolution of a marriage does not require an allegation or proof of fault of either party.

The application can be made by either party or by both parties jointly.

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, no-fault divorce is now available in all 50 states and the District of Columbia--New York, 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.

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.[2]

Key factors:

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.[3] Most US states charge between $175 and $350 for a simple divorce filing.[4][5][6] Collaborative divorce and mediated divorce are considered uncontested divorces. In the United States, many state court systems are experiencing an increasing proportion of self-representation without of a lawyer (i.e. pro se) in divorce cases.[7] 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, in Florida from 66% in 1999 to 73% in 2001.[7] Urban courts in California report that approximately 80% of the new divorce filings are filed pro se.[8]

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 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 can later be used in further legal proceedings, as the collaborative process is not a confidential proceedings absent some binding agreement that say it is confidential. Furthermore, there are no set enforceable time lines for completion of a divorce using collaborative divorce.

Electronic divorce

Electronic divorce is a means that allows two persons married under certain jurisdictions, such as Portugal, to file an electronic request for 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.[9][10][11][12][13][14]

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 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 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.

Statistics

United States

In 2008, 46% of all marriages involve a remarriage for one or both spouses. It is estimated that 40% of all marriages have ended in divorce as of 2008.[15] On average, first marriages that end in divorce last about eight years.[16] 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.[16] The median time between divorce and a second marriage was about three and a half years.[16]

The overall divorce rate is in decline in the U.S., but so is the marriage rate.[17] A 1995 study found a wide range of unassociated factors including frequency of sex, wealth, race, and religious commitment.[18] The latter finding is contradicted by a study[19] by the Barna Group,[20] which found that a higher divorce rate was associated with infrequent church attendance.

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.[21]

While cohabitation has been shown to be associated with higher divorce rates, a study indicates that divorce-prone couples tend to first cohabit, and a number do not go on to get married, leading the researchers to conclude that without cohabitation, the divorce rate would be higher.[22]

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.[23] 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.[24]

The National Center for Health Statistics reports that from 1975 to 1988 in the US, 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.[25] 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 without a hearing (either with or without lawyers/mediators/collaborative counsel) about the property, children and support issues.

Europe

One study estimated that legal reforms accounted for about 20% of the increase in divorce rates in Europe between 1960 and 2002.[26]

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 of the married population. This is the lowest divorce rate recorded since 1981.[27]

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.[28]

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 2008, the number of divorces totaled 251,000, and the divorce rate was 1.99 (per 1,000 population).[29]

South Asia

India and Sri Lanka are the two countries that have the lowest divorce rates, around one and one and a half percent respectively. In this part of Asia divorce is still very rare, although it is more common in South East Asia. In India, for example, arranged marriage is still fairly prominent although not as common as it once was. Divorce is not deemed as acceptable as it is in other cultures and therefore many either make a concerted effort to work through relationship problems or remain in unhappy marriages.

History

Henry VIII of England is known for breaking with the Roman catholic church partly in order to obtain a divorce.

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

Medieval Europe

After the fall of the Roman Empire, familial life was regulated more by ecclesiastical authority than civil authority. By the ninth or tenth century, the divorce rate had been greatly reduced under the influence of the Christian Church,[30] which considered marriage a sacrament instituted by God and Christ indissoluble by mere human action.[31]

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.[32] 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.” [33][34][35] 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.” [36] Since husband and wife became one person upon marriage, that oneness could only be annulled if the parties improperly entered into the marriage initially.

Secularization in Europe and United States

Marriage later came to be considered a civil contract, 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,[37] 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."[38] 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.”[39]

Japan

In the Edo Period (1603–1868), under the influence of male chauvinism, 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.[40][41] In 19th century Japan, at least one in eight marriages ended in divorce.

India

In India, divorce and remarriage are legal; divorce can be applied only after one year of marriage. Divorce rates in India are amongst the lowest in the world. 11 marriages out of 1,000 marriages ended up in divorce. The divorce rate is lower in the villages; higher in urban areas. In last decade divorce rates in India’s urban sphere has been increasing at a much higher rate.

Islam

In Islamic law and marital jurisprudence, divorce is accepted and referred to as talaq.[42] 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 some forms of Islam. Talaq (conflict) deals with the relationship between religious and secular systems for terminating the marriage in the Conflict of Laws.

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.[43] 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.[44] In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.[43]

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.[45]

The main causes in 2004 were:

According to this survey, men engaged in extra-marital affairs in 75% of cases; women in 25%. In cases of family strain, women's families were the primary source of strain in 78%, compared to 22% of men's families. Emotional and physical abuse were more evenly split, with women affected in 60% and men in 40% of cases. In 70% of workaholism-related divorces it was men who were the cause, and 30% women. The 2004 survey found that 93% of divorce cases were petitioned by women, 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.[24]

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 marriage 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 administrate 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.[46] 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 Judiasm 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.[47]

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.[48] 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%.

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.[45]

Some jurisdictions give unequal rights to men and women when filing for divorce.

For couples subject 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 (s) and cannot marry non-mamzerim.[47]

See also

Law:

Historical:

References

  1. ↑ The Long Run Effects of Legalizing Divorce on Children.
  2. ↑ By admin, on May 26th, 2010% (2010-05-26). "Summary Dissolution". Divorce Law CA. http://divorcelawca.com/category/summary-dissolution. Retrieved 2010-06-11. 
  3. ↑ "Divorce Forms by State (US)". Divorcedocuments.com. http://www.divorcedocuments.com/state-divorce-forms. Retrieved 2010-06-11. 
  4. ↑ "Court Fees and Fee Waiver". http://www.courts.alaska.gov/shcstart.htm. 
  5. ↑ "Divorce in Oregon". http://www.osbar.org/public/pamphlets/divorce.html. 
  6. ↑ "Getting divorce in Utah". http://www.utcourts.gov/howto/divorce/#cost. 
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  8. ↑ Instant Divorce Official Website. Retrieved April 26, 2008.
  9. ↑ About the Electronic Divorce. Retrieved April 26, 2008.
  10. ↑ Electronic Divorce legislation. Retrieved April 26, 2008.
  11. ↑ EU Directive on a Community framework for electronic signatures. Retrieved April 26, 2008.
  12. ↑ Electronic Divorce news. Retrieved April 26, 2008.
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  15. ↑ 16.0 16.1 16.2 "Census Bureau Reports". http://www.census.gov/newsroom/releases/archives/marital_status_living_arrangements/cb07-131.html. 
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  17. ↑ "Vital and Health Statistics; Series 23, No. 22 (July 2002)" (PDF). http://www.cdc.gov/nchs/data/series/sr_23/sr23_022.pdf. Retrieved 2010-06-11. 
  18. ↑ "New Statistics on Church Attendance and Avoidance". Barna Group. 2008-03-03. http://www.barna.org/barna-update/article/18-congregations/45-new-statistics-on-church-attendance-and-avoidance. 
  19. ↑ "The Barna Group - About Barna Group". Barna.org. http://www.barna.org/about. Retrieved 2010-06-11. 
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  22. ↑ Luscombe, Belinda (24 May 2010). "Divorcing by the Numbers". New York, New York: Time. p. 47. http://www.time.com/time/magazine/article/0,9171,1989124,00.html. 
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  24. ↑ "Advance Report of Final Divorce Statistics, 1988" (PDF). Monthly Vital Statistice Report 39 (12 (supplement 2)). 1991-05-21. http://www.cdc.gov/nchs/data/mvsr/supp/mv39_12s2.pdf. 
  25. ↑ "The Effect of Divorce Laws on Divorce Rates in Europe". http://ideas.repec.org/p/iza/izadps/dp2023.html. 
  26. ↑ "National Statistics Online - Divorces". Statistics.gov.uk. http://www.statistics.gov.uk/cci/nugget.asp?id=170. Retrieved 2010-06-11. 
  27. ↑ "Divorce Statistics AUSTRALIA - Marriage and Divorce Research and Statistics". Mydivorce.com.au. 2009-03-01. http://www.mydivorce.com.au/divorceadvice/divorce-statistics-australia.htm. Retrieved 2010-06-11. 
  28. ↑ "Statistical Handbook of Japan: Chapter 2 - Population". http://www.stat.go.jp/english/data/handbook/c02cont.htm#cha2_4. 
  29. ↑ Kent's Commentaries on American Law, p. 96 (14th ed. 1896))
  30. ↑ Canons of the Council of Trent, Twenty-fourth Session. "Session the Twenty-Fourth". London: Dolman. 1848. pp. 192–232. http://history.hanover.edu/texts/trent/ct24.html. Retrieved 2006-09-18. 
  31. ↑ Kent's Commentaries on American Law, p. 125, n. 1 (14th ed. 1896).
  32. ↑ W. Blackstone, Commentaries on the Laws of England, 428 (Legal Classics Library spec. ed. 1984).
  33. ↑ Kent's Commentaries on American Law, p. 1225, n. 1.
  34. ↑ E.Coke, Institutes of the Laws of England, 235 (Legal Classics Library spec. ed. 1985).
  35. ↑ Blackstone, Commentaries on the Laws of England, p. 435 (Legal Classics Library spec. ed. 1984.
  36. ↑ Blackstone, Commentaries on the Laws of England, p. 429.
  37. ↑ Kent's Commentaries on American Law, p. 401.
  38. ↑ Kent's Commentaries on American Law, p. 147.
  39. ↑ http://web-japan.org/tokyo/know/marriage/mar.html Web Japan
  40. ↑ "Japan Times[http://www1.mhlw.go.jp/toukei/rikon_8/repo1.html mhlw". Search.japantimes.co.jp. 2004-06-19. http://search.japantimes.co.jp/cgi-bin/nn20040619f1.html. Retrieved 2010-06-11. 
  41. ↑ *"Talak".Encyclopaedia of Islam
  42. ↑ 43.0 43.1 Rapoport, Yossef (2005). Marriage, Money and Divorce in Medieval Islamic Society. Cambridge University Press. p. 2. ISBN 052184715X 
  43. ↑ Rapoport, Yossef (2005). Marriage, Money and Divorce in Medieval Islamic Society. Cambridge University Press. pp. 5–6. ISBN 052184715X 
  44. ↑ 45.0 45.1 [1]
  45. ↑ An Islamic Perspective on Divorce, May 1999.
  46. ↑ 47.0 47.1 "Under Israel's Divorce Laws, Men Get The Final Word". 2010-04-07. http://www.npr.org/templates/transcript/transcript.php?storyId=125673859. Retrieved 2010-05-24. 
  47. ↑ Brinig, Margaret; Douglas W. Allen (2000). "These Boots Are Made for Walking: Why Most Divorce Filers are Women". American Law and Economics Review 2 (1): 126–129. 

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