Divorce

Divorce or dissolution of marriage is the ending of a marriage before the death of either spouse.

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

Divorce is messed up!In many developed countries, divorce rates have increased markedly during the twentieth century. Among the states in which divorce has become commonplace are the United States, South Korea, and members of the European Union, with the exception of Malta and the Philippines (where all civil marriages are for life, because civil divorce is banned). In the USA, Canada, the United Kingdom, and some other developed Commonwealth countries, this boom in divorce developed in the last half of the twentieth century. In addition, acceptance of the single-parent family has resulted in many women deciding to have children outside marriage, as there is little remaining social stigma attached to unwed mothers in some societies. Japan retains a markedly lower divorce rate, though it has increased in recent years. The subject of divorce as a social phenomenon is an important research topic in sociology.

A divorce must be certified by a court of law, as a legal action is needed to dissolve the prior legal act of marriage. The terms of the divorce are also determined by the court, though they may take into account prenuptial agreements, or simply ratify terms that the spouses have agreed on privately. Often, however, the spouses disagree about the terms of the divorce, which can lead to stressful (and expensive) litigation. A less adversarial approach to divorce settlements has emerged in recent years, known as mediation, an attempt to negotiate mutually acceptable resolution to conflicts.

Statistics

The divorce rate is generally low among Muslims, in comparison to other religious groups. However, at least in some Muslim populations, that rate may be rising. For example: in 2004 in Singapore (which has an 18% Muslim population) many feared that the divorce rate among Muslims had risen too high: 9 out of every 1,000 marriages, a ratio 3 times higher than Malaysia, and 5 times higher than Indonesia.

In the United States, in 2005 there were 7.5 new marriages per 1,000 people, and 3.6 divorces per 1,000, a ratio which has existed for many individual years since the 1960s. As many statisticians have pointed out, it is very hard to count the divorce rate, since it is hard to determine if a couple who divorce and get back together in that same year should be considered a divorce, so there is in fact no predictive relationship between the two annual totals. Nonetheless, the claim that "half of all marriages end in divorce" became widely accepted in the US in the 1970s, on the basis of this statistic, and has remained conventional wisdom. Pollster Lewis Harris in his 1987 book "Inside America" wrote that "the idea that half of American marriages are doomed is one of the most specious pieces of statistical nonsense ever perpetuated in modern times."

To establish an actual divorce rate requires tracking and analyzing significant samples of actual marriages through decades, which is not an easy task. Recent US scholarship based on such longterm tracking, reported for example in the New York Times on April 19, 2005, has found that about 60% of all marriages that result in divorce do so in the first decade, and more than 80% do so within the first 20 years; that the percentage of all marriages that eventually end in divorce peaked in the United States at about 41% around 1980, and has been slowly declining ever since, standing by 2002 at around 31%; and that while in the 1960s and 1970s there was little difference among socioeconomic groups in divorce rates, diverging trends appeared starting around 1980 (e.g., the rate of divorce among college graduates had by 2002 dropped to near 20%, roughly half that of non-college graduates).

In the decades following introduction of no-fault divorce laws, there was an extraordinary increase in divorce rates, and more recent research has clarified that US divorce rates had been on a gentle increase since the 1890s (with a short-term decline during the Great Depression and a spike just after World War II). The long-term rate of increase steepened with the advent of no-fault divorce laws in the late 1960s; the gradual decline starting in the early 1980s has continued for a quarter-century thus far, though much of the divorce decline can be attributed to the increased social acceptability of co-habitation without the benefit of marriage.

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 US. There is some variation among states, and the numbers have also varied over time, with about 60% of filings by women in most of the 19th century, and over 70% by women in some states just after no-fault divorce was introduced, according to the paper. Evidence is given that among college-educated couples, the divorce filing rate by women approaches 90%.

States in the US handle billions of dollars in alimony and child support arrangements, which commonly result from divorces. (According to a 2003 US census report], 43.7% of custodial mothers and 56.2% of custodial fathers, are divorced or separated.) A 2005 Census Bureau Report found that in 2002, $40 billion had been paid in support arrangements by 7.8 million payers, 84% of whom were men. States also collected federal incentives to collect support payments, with a potential incentive pool of up to $454 million in fiscal 2004.

History

Divorce existed in antiquity, dating at least back to ancient Mesopotamia. The ancient Athenians liberally allowed divorce, but the person requesting divorce had to submit the request to a magistrate, and the magistrate could determine the reasons given were insufficient. Although liberally granted in ancient Athens, divorce was rare in early Roman culture. As the Roman Empire grew in power and authority, however, Roman civil law embraced the maxim, “matrimonia debent esse libera” ("marriages ought 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 6th century. After the fall of the empire, familial life was regulated more by ecclesiastical authority than civil authority. By the 9th or 10th century of the Christian era, the frequency of divorce had been greatly curtailed by the influence of the Christian church. ( 2 Kent's Commentaries on American Law, p. 96 (14th ed. 1896)). The Christian church considered marriage a sacrament instituted by God and Christ indissoluble by mere human action. Canons of the Council of Trent, Twenty-fourth Session.

Although divorce, as known today, was generally prohibited after the 10th century, actions allowing the separation of husband and wife and annulment of the 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 did not terminate. 2 Kent's Commentaries on American Law, p. 125, n. 1 (14th ed. 1896). Because the marriage did not end, the husband had a continuing duty to support his wife (alimony). From the earliest years of the Christian age until the 18th century, annulment was the only means by which a marriage could be dissolved, and the circumstances under which annulment was proper was solely within the province of ecclesiastical courts. The common-law courts had no power over marriage since it was a status granted by the Church. The grounds for annulment were determined only by Church authority. Annulment was known as “divorce a vinculo matrimonii,” or “divorce from all the bonds of marriage,” 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.” 1 W. Blackstone, Commentaries on the Laws of England, 428 (Legal Classics Library spec. ed. 1984); 2 Kent's Commentaries on American Law, p. 1225, n. 1; 1 E.Coke, Institutes of the Laws of England, 235 (Legal Classics Library spec. ed. 1985). 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.” (Blackstone, Commentaries on the Laws of England, p. 435 (Legal Classics Library spec. ed. 1984). Since husband and wife became one person upon marriage, that oneness could only be dissolved if the parties improperly entered into the marriage initially.

Marriage later came to be considered a civil contract, and civil authorities gradually asserted their power to decree divorce. Since no precedents existed defining the circumstances under which marriage could be dissolved, civil authorities heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. Although the common-law courts gradually assumed the power to dissolve marriages, divorce was considered contrary to public policy, and the courts strictly construed those circumstances under which they would grant a divorce. Blackstone, Commentaries on the Laws of England, p. 429.

Because marriage could not be terminated except in the most extreme circumstances, common-law courts refused the grant of 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." Kent's Commentaries on American Law, p. 401. 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.” Kent's Commentaries on American Law, p. 147.

Canada

Divorce was not recognized in Canada until the 1960s. Before that time, the only way to get divorced was to apply to the Canadian Senate where a special committee would undertake an investigation of a request for a divorce and if they found that the request had merit, the marriage would be dissolved by a private bill. Divorce (in Civil Jurisprudence) Article in the 1908 Catholic Encyclopedia.

Causes

An annual study in the UK by management consultants Grant Thornton estimates the main causes of divorce based on surveys of matrimonial lawyers.

The main causes in 2004 (2003) were:

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

According to this survey, men engaged in extra-marital affairs in 75% (55%) of cases; women in 25% (45%). 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.

Regarding divorce settlements, as defined by this survey women obtained a better or considerably better settlement than men in 60% of cases. In 30% of cases the assets were split 50-50, and in only 10% of cases did men achieve better settlements (down from 24% the previous year). The 2004 report concluded that campaigns like that of Fathers 4 Justice must succeed in increasing the percentage of shared residence orders, in order for more equitable financial divisions to become the norm.

To prevent jurisdiction shopping you can only now bring proceedings in England and Wales if you are habitually resident there or have retained domicile in England and Wales. This applies to the whole of the EU. Therefore if you live in France but were married in England, you should bring the proceedings in France.

Who initiates divorce?

The National Center for Health Statistics reports that from 1975 to 1988, in families with children present, wives file for divorce in approximately 2/3 of the cases each year. In 1975, 71.4% of the cases were filed by women, and in 1988, 65% were filed by women.

In their study titled "Child Custody Policies and Divorce Rates in the US," Kuhn and Guidubaldi find it reasonable to conclude that women anticipate advantages to being single, rather than remaining married. ^{, cited by} When women anticipate a clear gender bias in the courts regarding custody, they expect to be the primary residential parent for the children and the resulting financial child support, maintaining the marital residence, receiving half of all marital property, and gaining total freedom to establish new social relationships. These are seductive enticements to divorce, rather than to remain married. In their detailed analysis of divorce rates, Khun and Guidubaldi conclude the evidence suggest that acceptance of joint physical custody may reduce divorce. States whose family law policies, statutes, or judicial practice encourage joint custody have shown a greater decline in their divorce rates than those that favor sole custody.

21st Century divorce

Until the advent of online commerce most divorces were handled by Solicitors; however, a number of online divorce services have been operating for many years, cutting the costs of divorce. Online divorce could account for about 1 in 5 of all divorces filed in England and Wales, if statistics are to be believed.

There are now internet-based divorce services all over the world, the majority being in English-speaking countries such as the UK, USA, and the Commonwealth.

Religious/cultural attitudes

Many countries in Europe, such as France, once prohibited divorce, as it is not condoned by the Catholic church. Sometimes citizens travelled to other jurisdictions to obtain a divorce.

In Islam, divorce is allowed, though discouraged. A commonly mentioned Islamic ruling is that divorce is the least liked of all permissible acts. Islam considers marriage to be a legal contract; and the act of obtaining a divorce is essentially the act of legally dissolving the contract. According to Shariah (Islamic Law), there is a required waiting period before a divorce is considered valid. After three divorces, the man and the women are not allowed to remarry, unless under specific circumstances.

Judaism recognized the concept of "no-fault" divorce thousands of years ago. Judaism has always accepted divorce as a fact of life (for example, see Deuteronomy chapters 22 and 24), albeit an unfortunate one. (However, Jesus and the school of Shammai did not agree with the prevailing Rabbinic position.) Judaism generally maintains that it is better for a couple to divorce than to remain together in a state of constant bitterness and strife. Also see the article Jewish Attitude Toward Divorce. and Get in the Conflict of Laws.

Within Christianity, divorce has become almost commonplace, and the interpretation of the Holy Scripture on divorce widely varies among Christian denominations. However, the first 400 years of the Early Church, the church maintained a unanimous voice opposing divorce.

Bible commentary on divorce comes primarily from the gospels of Matthew, Mark and Paul. Although Jesus touched on the subject of divorce in three of the Gospels, Paul gives a rather extensive treatment of the subject in his First Epistle to the Corinthians chapter 7: "Let not the wife depart from her husband...let not the husband put away his wife" (1 Corinthians 7:10-11), but he also includes the Pauline privilege. He again alludes to his position on divorce in his Epistle to the Romans, albeit an allegory, when he states "For the woman which hath an husband is bound by the law to her husband so long as he liveth...So then if, while her husband liveth, she be married to another man, she shall be called an adulteress" (Romans 7:2-3).

Dharmic religions do not have a concept of divorce. However, the Hindu Marriage Act, 1955 applicable to Hindus, Buddhists, Sikhs, and Jains in India does have provisions for divorce under some circumstances.

See also

• Christian view of marriage
• Divorce (in Moral Theology) Catholic Encyclopedia article.
• Father's Rights
• Child Custody
• Parental Alienation

Emotional implications

Divorce is often one of the most traumatic periods in a person's life. Separation and Divorce is often associated with heart wrenching emotions, unspeakable saddness, depression, anxiety and much more. In the US, Divorce is often adversarial and the spouse is often and unnecessarily treated like the enemy by the other spouse.

Divorce Complaints, especially when complicated by child custody are often laden with unfounded exaggerations of facts and false accusations that go on a person’s Public Record with no accountability.

Divorce courts and Family Law judges are often overwhelmed with the enormous number of divorce cases that the absolute majority of divorce cases never go to trial and the divorcing couple is typically pressured by the judge and attorneys to reach some settlement as close to equitable distribution as possible.

Financial implications

Divorce leads to the creation of two households rather than one, with consequent increased costs. All parties suffer these effects. As more women are awarded child custody, many of the roles and difficulties described below may be reversed, although men who are awarded custody have historically been less likely to be awarded child support or alimony.

There are significant societal costs to divorce. By any measure or study, a significant percentage of societal ills are over-represented by individuals who have not been reared by both biological parents. This is true of all juvenile delinquency and the adult prison population, as well as measures of school drop-outs and unemployment. The rate of unmarried teen pregnancy is the highest among young women who have not been living with both biological parents. These facts are often not discussed openly or discussed in professional papers, as it does appear to diminish the valiant and successful efforts of many single parents, whether that has been initiated by divorce or widow(er)hood.

Women often financially suffer as a result of divorce due to lower earning potential in many countries, and to their greater historical role in rearing children, and there may be some relationship between these two factors. They more often obtain exclusive custody of children after the divorce, reducing their ability to pursue high-paying employment. Child support collection can be quite difficult: some fathers feel that they only have an obligation towards their children and not their mother (who may have initiated an unwanted divorce), some may not want to meet their obligation towards their children, and others, while intending to meet their obligation may not be able to fulfill it. Many national and local governments provide some kind of welfare system for divorced mothers and their children. See also single parent. Public family support for male headed households, in the absence of a disability, are far less common. It is important to note that divorce is the number one contributor to bankruptcy in the United States.

Men are also often victims of divorce, both financially and in other ways. Court-ordered alimony and child support can be beggaring, often pegged to large percentages of the higher-earning spouse's income. Such obligations can make it impossible for paying spouses to remarry, and if they do remarry, the law often puts the payor's prior obligations before his and his new family's needs. Groups such as Families Need Fathers claim that non-custodial spouses (more often men) are often blocked from access to their children.

Currently in the United States, federal law makes non-payment of child support a felony, whereas refusal to honor court-ordered visitation decisions is not, and seldom results in any punishment or compulsion to change. Additionally the Bradley Amendment revoked due process for support-paying parents, removing the ability of judges to reduce child support obligations in cases of unemployment, state statutes of limitations, bankruptcy, incapacitation or other extremity.

In the United States, a spouse who resides in a community property state and lacks a prenuptial agreement can be at a disadvantage if he or she earns more than the other spouse. In these states, the property is split 50/50 regardless of who earned the money. This is true even if the poorer spouse has committed adultery or initiates the divorce. On the other hand, less tangible assets such as putting a spouse through school or providing a good home are difficult to value in dollars, and a spouse whose contributions are less tangible can also be disadvantaged.

Most states in the US are not community property states, but several large and populous ones such as California, along with a few smaller ones, are. Some states instead impose a standard of "equitable" rather than equal division, attempting to address the many complexities involved in separating out years of financial sharing. In such states judges have greater power to balance various contributions to the marriage.

Another significant financial implication of divorce is the actual cost of the divorce itself. Attorneys fees are often an extreme hardship at a time when the divorcing couple begins to incur expenses far in excess of half of the budget incurred during the marriage.

A prenuptial agreement before marriage can reduce conflict over financial division should a divorce be undertaken later, although courts can overturn these agreements as too severely imbalanced, signed under duress, or violating the best interests of the children.

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. All the studies to date suffer from an inherent methodological weakness which researchers have not yet found a solution to: establishing the relevant baseline for comparisons. By definition, all divorces are of unhappy couples; meanwhile, those who do not divorce are some mix of happy couples and of unhappy ones who stayed married. Comparisons of life outcomes or well-being along the simple divorced/not divorced axis will therefore always show poorer outcomes for the group which is composed entirely of unhappy couples, demonstrating simply that being part of a happy couple is better than being part of an unhappy one.

Any list of formal sociological articles on aftereffects of divorce would quickly become obsolete, but among the more accessible books are works by Wallerstein (reports long-term negative effects of divorce on children) and Mavis Hetherington (reports that not all kids fare so badly, and that divorce can actually help children living in high-conflict homes such as those with domestic violence).

Recent longtitudinal studies have reported that some divorced people are no happier after divorce. University of Chicago sociologist Linda Waite analyzed the relationships between marriage, divorce and happiness using the National Survey of Family and Households. She reported that unhappily married adults who had divorced were no happier than those who had stayed married. Some studies report that cohabitation before marriage is correlated with an increased divorce rate.

Attempts to assess the impact of divorce on children are inherently compromised by the same methodological problem as with adults: establishing the relevant baseline for comparisons. By definition, virtually all children of divorce are from unhappy families; meanwhile, children whose parents never divorced are from some mix of happy families and unhappy ones (parents who stayed married despite an unhappy marital relationship). Comparisons of life outcomes or well-being along the simple divorced/not divorced axis naturally always show poorer outcomes for the group that is composed entirely of children of unhappy families, demonstrating simply that being the child of happy parents is better than being the child of unhappy ones. The actual question of interest is whether being a child of unhappy parents who divorce is better or worse than being a child of unhappy parents who do not divorce. Establishing data for that comparison would require being able to identify with reasonable certainty the subset of nondivorced parents who are nonetheless deeply unhappy with each other, something no researcher has found a way to do at a meaningful scale.

From work that has been done along the flawed axis described above, it was until recently generally assumed that children's difficulties with divorce, while common, were short-lived. However, recent authors have argued that a major cost to children comes long after: when they attempt to form stable marriages themselves. There is extensive and heated debate over just how much harm, just how many children are harmed to what extent, what factors mediate the harm, and so on. Mavis Hetherington (a University of Virginia professor) reports that 70% of children coming from divorced families consider divorce an adequate answer to marital problems (even if children are present), compared to only 40% of children from non-divorced families.

Children of divorced parents (those entirely from unhappy families) are reported to have a higher chance of behavioral problems than those of non-divorced parents (a mix of happy and unhappy families). Studies have also reported the former to be more likely to suffer abuse than children in intact families, and to have a greater chance of living in poverty. A 2002 article in Clinical child and Family Psychology Review discusses a variety of health consequences for children of the unhappy couples that do divorce. Constance Ahron, who has published books suggesting there may be positive effects for children, interviewed ninety-eight divorced families' children for We're Still Family: What Grown Children Have to Say About Their Parents' Divorce. Since by definition all children of divorced parents had lived in unhappy homes, they unsurprisingly reported numerous unhappy experiences. Numerous subjects said things like "I saw some of the things my parents did and know not to do that in my marriage and see the way they treated each other and know not to do that to my spouse and my children. I know [the divorce] has made me more committed to my husband and my children." Ahron's method of asking adult children of divorce how they feel about it also has the well-known weaknesses of "self-report" studies.

Researchers have reported that in cases of extremely high conflict, divorce can be positive. An article in the Oklahoma Bar Journal defines "high conflict" in terms of ongoing litigation, anger and distress, verbal abuse, physical aggression or threats of physical aggression, difficulty in communicating about and cooperating in child care, or other court-determined factors. Various studies have claimed that people who have been in divorced families:

• have higher rates of alcoholism and other substance abuse compared to those who have never been divorced. Robert H. Coombs, Professor of Behavioral Sciences at UCLA, reviewed over 130 studies measuring how marital status affects personal well-being. They "attest that married people live longer and generally are more emotionally and physically healthy than the unmarried." Also, "studies consistently found more alcoholism and problem drinking among the unmarried than the married." The separated and divorced account for 70% of all chronic problem drinkers, and marrieds 15%.
• have higher rates of clinical depression. Family disruption and low socioeconomic status in early childhood increase the long-term risk for major depression.
• seek formal psychiatric care at higher rates. Studies vary, suggesting from 5 to 21 times the risk, and vary over whether men or women are more seriously affected.
• in the case of men, are more likely to commit suicide at some point in their lives, according to a study by Augustine Kposowa, a University of California at Riverside sociologist.

This study quantified earlier work that estimated an increased risk of 2.7 times for men. (cited in)

• have lower life expectancies overall.

Studies have also claimed positive correlations between divorce and rates of:

• stroke
• cancer. Married cancer patients are also more likely to recover than divorced ones.
• acute infectious diseases, parasitic diseases, respiratory illnesses, digestive illnesses, and severe injuries. See the article Black Men And Divorce: Implications For Culturally Competent Practice.

In support of these particular claims, that article cites the U.S. Bureau of the Census Population profile of the United States in 1991 and an article by S. L. Albrecht on Reactions and adjustments to divorce.

• heart problems. Some research suggests that childhood trauma, including parental divorce, can lead to much greater risk of heart attack in later life.

Combined with job stress, divorce led to a 69% increase of death rate among men with above average risk of heart disease. ^{Cited in, Cites as source}

• rheumatoid arthritis and osteoarthritis. A 2002 article in the Journal of Rheumatology shows a 30% increase in risk at any given age. A 2003 article in the Canadian Journal of Public Health finds that parental divorce leads to increased risk of arthritis for children later in life.
• sexually transmitted diseases. For example, in Uganda "Results from a baseline survey of HIV-1 infection in the cohort of over 4,000 adults (over 12 years old) showed a twofold increase in risk of infection in divorced or separated persons when compared with those who are married."

A study by Judith Wallerstein which reported some of these effects was at first criticized because the subjects were all drawn from an affluent section of California rather than a broader sample. This is a real issue. However, more recent studies have repeated her conclusions and sometimes shown that her sample group was actually better off than average; of course those studies also suffered from the same broader methodological flaw described here. Families with lower income and education levels did somewhat worse than more advantaged subjects in Wallerstein's study.

Legal aspects

Muslim societies

In the Muslim world, legislation concerning divorce varies from country to country. Different Muslim scholars can have slightly differing interpretations of divorce in Islam, (e.g. concerning triple talaq).

No-fault divorce is allowed in Muslim societies, although normally only with the consent of the husband. A wife seeking divorce is normally required to give one of several specific justifications (see below). Islam discourages divorce.

If the man seeks divorce or was divorced, he has to cover the expenses of his ex-wife feeding his child and expenses of the child until the child is two years old (that is if the child is under two years old). The child is still the child of the couple despite of the divorce.

If it is the wife who seeks divorce, she must go to a court. She must provide evidence of ill treatment, inability to sustain her financially, sexual impotence on the part of the husband, her dislike of his looks, etc. The husband may be given time to fix the problem, but if he fails, the appointed judge will divorce the couple if the couple still wish to be divorced.

See also: Talaq in Conflict of Laws, At-Talaq and Triple talaq.

Canada

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

The Canada Divorce Act recognizes divorce only on the ground of breakdown of the marriage. Breakdown can only be established if one of three grounds hold: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming. The one-year period of separation starts from the time at least one spouse intends to live separate and apart from the other and acts on it. A couple does not need a court order to be separated, since there is no such thing as a "legal separation" in Canada. A couple can even be considered to be "separated" even if they are living in the same dwelling. Either spouse can apply for a divorce in the province in which either the husband or wife has lived for at least one year.

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

England and Wales

Divorce is commenced by the issuing of a petition, which must be acknowledged by the other party. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted 'nisi', i.e. (unless cause is later shown), before it is made 'absolute'. Relevant laws are:

• Matrimonial Causes Act 1973, which sets out the basis for divorce (part i) and how the courts deal with financial issues, known as ancillary relief (part ii)
• Family Law Act 1996.[1]
• Children Act 1989.[2]
• The Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991. [3]
• Marriage Act 1949. [4]
• Marriage Act of 1994. [5]

France

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

Italy

Presumably due to the strong influence of the Roman Catholic Church, divorce was all but unobtainable in the Italian Republic and its predecessor states. The difficulty of ridding oneself of an unwanted spouse was a frequent a topic of drama and humor, reaching its apotheosis in the 1961 film Divorce, Italian Style. On December 1, 1970, the civil code of Italy was amended to permit the granting of divorces by the civil courts. Subsequent efforts at repealing the divorce statute by referendum were unsuccessful.

Japan

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

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

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

Japan Specific External links

• Legal Forms described here and English examples of how to fill them out.
• English versions of Japanese Family Law

Philippines

Philippine law, in general, does not provide for divorce inside the Philippines. Article 26 of the Family Code of the Philippines does provide that

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

This would seem to apply only if the spouse obtaining the foreign divorce is an alien. However, the Supreme Court of the Philippines declared in the case of RP vs. Orbecidio

[..] we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry.

Complications can arise, however. For example, if a legally married Filipino citizen obtains a divorce outside of the Philippines, that divorce would not be recognized inside the Philippines. If that person (now unmarried outside of the Philippines) then remarries outside of the Philippines, he or she could arguably be considered in the Philippines as having committed the crime of Bigamy under Philippine Laws].

Also, Article 15 of the Civil Code of the Philippines provides that

Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

This can lead to complications regarding distribution of conjugal property, inheritance rights, etc. ^{, etc.}

Republic of Ireland

The largely Catholic population of the Republic of Ireland has tended to be averse to divorce. Divorce was prohibited by the 1937 Constitution. In 1986, the electorate rejected the possibility of allowing divorce in a referendum. Subsequent to a 1995 referendum, the Fifteenth Amendment repealed the prohibition of divorce, despite Church opposition. The new regulations came into effect in 1997, making divorce possible under certain circumstances. In comparison to other countries, it is difficult to obtain a divorce in the Republic of Ireland.

A couple must be separated for at least four of the preceding five years before they can obtain a divorce. It is sometimes possible to be considered separated while living under the same roof.

Divorces obtained outside Ireland are recognised by the Republic only if the couple was living in that country; it is not therefore possible for a couple to travel abroad in order to obtain a divorce.

Scotland

About one third of marriages in Scotland end in divorce, on average after about thirteen years. Actions for divorce in Scotland may be brought in either the Sheriff Court or the Court of Session. In practice, it is only actions in which unusually large sums of money are in dispute, or with an international element, that are raised in the Court of Session. If, as is usual, there are no contentious issues, it is not necessary to employ a lawyer.

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

Financial consequences of divorce are dealt with by the Family Law (Scotland) Act 1985. This provides for a division of matrimonial property on divorce. Matrimonial property is generally all the property acquired by the spouses during the marriage but before their separation, as well as housing and furnishings acquired for use as a home before the marriage, but excludes property gifted or inherited. Either party to the marriage can apply to the court for an order under the 1985 Act. The court can make orders for the payment of a capital sum, the transfer of property, the payment of periodical sums, and other incidental orders. In making an order, the court is, under the Act, guided by the following principles:

1. The net value of the matrimonial property should be shared fairly, and the starting point is that it should be shared equally; but
2. fair account should be taken of economic advantage derived by either party from contributions by the other, and of economic disadvantage suffered by either party in the interests of the other party or of the family; and
3. The economic burden of caring for a child of the marriage under 16 years should be shared fairly between the parties (but child support is not normally awarded by the court, as this is in most cases a matter for the Child Support Agency).

The general approach of the Scottish courts is to settle financial issues by the award of a capital sum if at all possible, allowing for a ‘clean break’ settlement, but in some cases periodical allowances may be paid, usually for a limited period. Fault is not normally taken into account.

Decisions as to parental responsibilities, such as residence and contact orders, are dealt with under the Children (Scotland) Act 1995. The guiding principle is the best interests of the child, although the starting assumption is in practice that it is in a child’s best interests to maintain contact with the non-custodial parent.

United States

Divorce in the United States is a matter of state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. For example, federal welfare reform mandated the creation of child support guidelines in all 50 states in the 1980s. ERISA includes provisions for the division of qualified retirement accounts between divorcing spouses. The IRS established rules on the deductibility of alimony, and federal bankruptcy laws prohibit discharging in bankruptcy of alimony and child support obligations. COBRA allows a divorced spouse to obtain and maintain health insurance. The laws of the state(s) of residence at the time of divorce govern, not those of the location where the couple was married. All states recognize divorces granted by any other state. All states impose a minimum time of residence, Nevada currently being the shortest at 6 weeks.

Prior to the latter decades of the 20th century, a spouse seeking divorce had to show a cause such as cruelty, incurable mental illness, or adultery. Even in such cases, a divorce was barred in cases such as the suing spouse's procurement or connivance (contributing to the fault, such as by arranging for adultery), condonation (forgiving the fault either explicitly or by continuing to cohabit after knowing of it), or recrimination (the suing spouse also being guilty). By the 1960s, however, the use of collusive or deceptive practices to bypass the fault system had become ubiquitous, and there was widespread agreement that something had to change. The no-fault divorce "revolution" began in 1969 in California, and was completed in 1985 (the last holdout was South Dakota). However, New York does impose a mandatory separation period before a divorce can be granted.

Typically, a county court’s family division judges petitions for dissolution of marriages. [6] [7] The National Association of Women Lawyers was instrumental in convincing the American Bar Association to help create a Family Law section in many state courts, and pushed strongly for no-fault divorce law around 1960 (cf. Uniform Divorce Bill). In some states fault grounds remain, but all states except New York now provide other grounds as well, variously termed irreconcilable differences, irremediable breakdown, loss of affection, or similar. For such grounds no fault need be proven and little defense is possible. However, most states require some waiting period, typically a 1 to 2 year separation. Some have argued that the lack of means to contest a no-fault divorce makes a marriage contract the easiest of all contracts to dissolve, and in very recent years some have begun to favor moderate divorce reforms such as requiring mutual consent for no-fault divorce. However, no such laws have been passed as of this writing.

Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, alimony, and so on. States vary in the admissibility of such evidence for those decisions. In any case, a no-fault divorce can be arranged far more easily, although the terms of the divorce can be and often are contested with respect to child-related matters and finances. Ultimately most cases are settled by the parties before trial.

Mediation is a growing way of resolving divorce issues. It tends to be less adversarial (particularly important for any children ), allows the parties greater control and privacy, saves money, and generally achieves similar outcomes to the normal adversarial process. Also, courts will often approve a mediated settlement quickly. A new movement towards Collaborative Law, where both sides are represented by attorneys but commit to negotiating a settlement and refraining from litigation, is also gaining momentum. If the parties and their collaborative law attorneys fail to reach a settlement, the collaborative lawyers are replaced by new counsel on the theory that the first set of lawyers will try harder if they know they will be "fired" if the dispute has to be resolved by a judge. Relatively amicable approaches such as this may reduce the trauma of divorce for all parties. Most experts agree that these methods are not appropriate for all relationships, especially those that included physical or emotional abuse, or an imbalance of power and knowledge about the parties' finances, for example.

Hostile divorces, in contrast, can be expensive both financially and emotionally. Fault grounds can be unpleasant enough when true, and may sometimes be falsely alleged, as may anything else that an unethical spouse can think of. In the 1990s, heated debate arose over accusations of domestic violence and of child sexual abuse arising in the course of hostile divorces. Some found a rapid increase in such charges and in the percentage of them eventually that were found baseless; others found there to be no such problems. It is unlikely the truth will ever be fully known.

States vary in their rules for division of assets in a divorce. Some states are "community property" states, while others are "equitable distribution" states. "Community property" states start with the presumption that assets will be divided equally, whereas "equitable distribution" states presume fairness may dictate more or less than half of the assets will be awarded to one spouse or the other. Attempt is made to assure the welfare of any minor children generally through their 21st birthday. Thus, the spouse given custody (or the spouse with the greater share of residence time in the case of joint custody), may receive assets to compensate their greater child-care expenses. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Depending on the state, an equitable or equal division of assets is then sought.

Alimony, also known as 'maintenance' or 'spousal support' is still being granted in many cases, especially in longer term marriages. Connecticut, for instance grants alimony in over 25% of cases]. Alimony is also likely in cases where a spouse has remedial needs that must be met in order for the spouse to become fully employable, for example that one spouse gave up career opportunities or development in order to devote themselves to the family. Permanent alimony becomes likelier in marriages that exceed 12 years.

A decree of divorce will generally not be granted until all questions regarding child care and custody, division of property and assets, and ongoing financial support are resolved. Since the mid 1990s, a few states have enacted covenant marriage laws, which allow couples to voluntarily make a divorce more difficult for themselves to obtain than in the typical no-fault divorce action. For example, couples who choose to undertake a covenant marriage may be required to undergo counseling before a divorce can be granted, or to submit their conflicts to mediation. In states lacking such provisions, some couples sign contracts undertaking the same obligations.

In recent years, a few high-profile court cases have involved children "divorcing" their parents, or being legally declared emancipated minors. Perhaps the best known are those of actor Macaulay Culkin and Olympic gymnast Dominique Moceanu. However, these are not properly "divorce" cases, and different laws apply.

Divorces obtained by US couples in a different country or jurisdiction

Due to the complex divorce procedures required in many places, especially including many states of the United States, some people seek divorces from other jurisdictions that have easier and quicker processes. Most of these places are commonly referred to negatively as "divorce mills."

There are four main reasons that people look to another jurisdiction for a divorce:

• Many jurisdictions do not allow "irreconcilable differences" as a legal cause for divorce, and without it generally fault is required (oftentimes with strict legal requirements) or a separation agreement in force for a year, such as New York State, thus requiring one year from the time the legal separation went into effect unless fault can be proven (possible in some cases just by affadavit however, but the other spouse must not contest the charges otherwise an oftentimes lengthy contested divorce is required.)
• Many jurisdictions have complex and long residency requirements as well as paperwork.
• Many jurisdictions take a long time to issue a finalized divorce, anywhere from 3 months to a year or even several in unique circumstances.
• Finally, some people are simply out to get around the financial hardship of a divorce, and get a divorce from a jurisdiction that allows fast uncontested divorces that offer little or no spousal support to the defendant.

Legal fees are not a reason people commonly consider this, as the legal fees alone are equal to or more than in any of the states in the US.

Divorces granted by other countries are generally recognized by the United States as long as no person's rights were infringed upon. The most notable in this situation is the notion of "due process", which is required by the Constitution of the United States and thus is not flexible. This means that the spouse whom is the defendant in the case must be notified of the proceedings and be given a certain time frame to respond to the allegations and state their case. This is only the case in a contested divorce, as in an uncontested divorce both spouses agree to the terms and sign off on the divorce; although in almost any if not all of these jurisdiction only one spouse is required to physically visit the country. While a contested divorce where due process was not observed is likely to be ruled invalid by a court in the United States if challenged, it is not illegal, as matrimonial law is private law and not criminal law, and is valid by default unless or until it is challenged (usually in the state or country of residency of either spouse.)

Thus, getting a contested divorce in another country is not likely to achieve the goals of the spouse requesting it, and is possible to even create a larger problem than before. An uncontested divorce is likely to be upheld in a court of law however, regardless of the general validity of contested divorces from these jurisdictions. While a "quick" contested divorce is likely if challenged to be declared invalid, it is, by case law, not considered bigamy if you remarry as long as the obtainer believed the divorce to be valid.

There are 5 major jurisdictions people look towards for a divorce in another state or country:

• The State of Nevada
• Haiti
• Mexico
• The Dominican Republic
• Guam

Haiti, Mexico, and The Dominican Republic are fairly similar in this regard. These countries people typically go to get an overnight/long weekend divorce, or to get a quick and relatively painless contested divorce (which are not valid unless due process has been observed.)

The State of Nevada is commonly used for a few reasons. It only requires a 6-week stay to meet the residency requirements, the lowest in the United States. One easy way to demonstrate that you have met this requirement is by having another resident of Nevada simply sign an affidavit testifying to your residency there. Nevada allows for "irreconcilable differences" as a cause for divorce, the importance of which are mentioned above. Also, it has an extensive and straightforward system for marriage annulment, and attracts people who would prefer an annulment (which declares the marriage wasn't valid in the first place) than a divorce. One major reason this attracts people is it allows for an easy bypassing of the mandatory 50/50 split in community property states, most notably the adjoining State of California.

Guam had (and still has some) very attractive reasons for obtaining a divorce there. Guam is a territory of the United States. Because Guam is a territory of the United States, its courts are United States jurisdictional courts and the divorces it issues are valid in all of the states in the US. Prior to January 1, 2006, Guam allowed for an uncontested divorce without either spouse visiting the territory at all. After being charged as a "divorce mill", including by many in its own government, an agreement was made with the lawyers and other lobbyists who did not want to change the law to now require a 7-day stay in Guam (as opposed to the much longer ones proposed) to obtain a divorce. Guam allows for "irreconcilable differences" as a cause for divorce, and Guam is much quicker to award a finalized divorce than many US states, taking a few weeks at most. Before the law was changed, it was a very attractive alternative for many Americans, as it was also quite affordable. However, due to its location in Southeast Asia, a trip there would be very expensive and not a viable alternative for most Americans.

In the case of disputed custody, almost all lawyers would strongly advise you stay to the jurisdiction applicable to the dispute, i.e. the country or state of you or your spouse's residence. Even if not disputed, the spouse could later dispute it and potentially invalidate another jurisdiction's ruling.

Global issues

Where people from different countries get married, and one or both then choose to reside in another country, the procedures for divorce can become significantly more complicated. Although most countries make divorce possible, the form of settlement or agreement following divorce may be very different depending on where the divorce takes place. In some countries there may be a bias towards the man regarding property settlements, and in others there may be a bias towards the woman, both concerning property, and also custody of any children. One or both parties may seek to divorce in a country which has jurisdiction over them. Normally there will be a residence requirement in the country in which the divorce takes place. See also Divorces obtained by US couples in a different country or jurisdiction above for more information, as applicable globally. In the case of disputed custody, almost all lawyers would strongly advise you stay to the jurisdiction applicable to the dispute, i.e. the country or state of you or your spouse's residence. Even if not disputed, the spouse could later dispute it and potentially invalidate another jurisdiction's ruling.

Some of the more important aspects of divorce law involve the provisions for any children involved in the marriage, and problems may arise due to abduction of children by one parent, or restriction of contact rights to children. For the Conflict of Laws issues, see divorce (conflict).

See also

• relationship counseling
• List of people with multiple marriages
• List of songs about divorce
• Allegations of domestic violence
• Parental alienation and Parental alienation syndrome
• Annulment

References

Also:

• Amato, Paul R. and Alan Booth. A Generation at Risk: Growing Up in an Era of Family Upheaval. Harvard University Press, 1997. ISBN 0-674-29283-9 and ISBN 0-674-00398-5. Reviews and information at [8]
• Gallagher, Maggie. "The Abolition of Marriage." Regnery Publishing, 1996. ISBN 0895264641.
• 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.
• 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. [9]
• U.S. Department of Health and Human Services. Survey of Divorce [10] (link obsolete).

External links

• Child Support Collections- informaition on collecting child support after a divorce.
• CustodyIQ.com - Free child custody advice with hundreds of well-indexed and searchable articles about nearly every possible issue
• Support? A documentary that explores the fundamental flaws in Family Courts and Child Support System.
• CBC Digital Archives - Splitting Up: Canadians Get Divorced
• Divorce Resources for Parents
• Divorce Library - Dissolution of Marriage, Nullity, Legal Separation
• Understanding Separate and Community Property
• State Divorce Custody and Support Laws
• Divorce Reality and Parental Alienation
• Desertion Survivors - Support/Advice for Deserted Partners
• Divorce Prevention - Marriage Counseling
• Marriage and Divorce from a Christian Perspective
• Biblical Perspective on Divorce
• Divorce Advice Center an independent Divorce Resource
• Divorce Solicitors in the UK
• Popular DVD movies with Divorce as a main theme