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Divorce

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

In developed countries, divorce rates have increased markedly during the twentieth century. Among the states in which divorce has become commonplace are the United States, Japan, Korea and members of the European Union. In U.S, Canada, the United Kingdom and other some other developed Commonwealth countries, this boom in divorce developed in the last half of the twentieth century. In addition, acceptance of the single-parent family has resulted in many women deciding to have children outside marriage as there is little remaining social stigma attached to unwed mothers. The subject of divorce as a social phenomenon is an important research topic in sociology.

Some researchers argue that divorce rate does not always reflect actual interactions among people; that is, some countries may show a low divorce rate because, in such countries, people rarely get married in the first place.

The term between divorce and remarriage varies depending on the country and the gender of the divorcee. In some countries, women need to wait longer than men before remarrying to avoid confusion about paternity. Children born after divorce may or may not be recognized as children of their father depending on the period between divorce and birth. In most common law jurisdictions there is a presumption that the child born during the marriage is the father's child, however this presumption can be overcome by identifying the putative father and bringing a paternity or affiliation proceeding. If the child was conceived before the divorce but born afterward this is the kind of grey area that jurists enjoy litigating. If a man accepts the child as his own he may be declared the father by estoppel as the parens patrie power of the court would rather the child have a male role model responsible for child support and other parental obligations rather than have the child grow up in a monoparental family.

A man who has been divorced is a divorcé; a divorced woman is a divorcée (from French).

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History of divorce

Divorce in some jurisdictions is a relatively recent phenomenon. In Canada there was no divorce law until the 1960s. Before that the only way to get divorced was to apply to the Canadian Senate where a special committee would undertake an investigation of a request for a divorce and if they found that the request had merit, the marriage would be dissolved by an Act of Parliament.

Great Britain

Prior to 1670 a marriage could only be ended by the Church courts if it could be shown to have never existed in the first place, either through inability to consent (e.g. insanity) or by want of capacity to marry (e.g. precontract, consanguinity, the two parties were related by a previous marriage). A marriage could also be ended if one of the parties were impotent or frigid when the marriage was contracted. It was also possible to get a legal separation from the church known as divorce a mensa et thoro (from board and hearth). Grounds for the separation included adultery, cruelty and heresy, and it meant that any offspring were not rendered illegitimate. However neither spouse could remarry until the other had died.

In the 1530s, Henry VIII decided that he wished to divorce his first wife, Catherine of Aragon, on the grounds of affinity; he argued that, since Catherine was his brother Arthur's widow, the marriage had never really existed. Catherine claimed that her marriage to Arthur had never been properly consummated. In 1533 Thomas Cranmer was appointed Archbishop of Canterbury and he declared that Henry's marriage to Catherine was void, effectively bastardizing their daughter Mary (later Mary I). In 1536 Cranmer similarly declared Henry's marriage to Anne Boleyn void, most probably due to Henry's pervious relationship with Anne's sister Mary Boleyn. Cranmer tried to reform the Church of England's Canon law so that it allowed divorce for adultery, cruelty, and desertion, but these changes were not implemented.

Following Lord Roos's divorce on the grounds of adultery in 1670, the procedure for divorce in English law went as follows: first the husband brought an action for "criminal conversation" to establish the adultery, then he obtained a divorce a mensa et thoro from the church and then finally he petitioned the House of Lords to grant the divorce.

In 1853 a Royal Commission made recommendations on how to improve the procedure of getting a divorce. In 1857 the Court for Divorce and Matrimonial Causes, based in London, was established, taking over the divorce duties of the church courts. Men could obtain divorce for adultery, but women had to prove cruelty or desertion, in addition of their husband's adultery. In 1923 women were allowed to use the same grounds for divorce as men. In 1969, after much debate, matrimonial breakdown became grounds for divorce.

Religious/cultural attitudes to divorce

Many countries in Europe, such as France prohibited divorce as it was not condoned by the Catholic church. Sometimes citizens would have to travel to other jurisdictions to obtain a divorce.

David Instone-Brewer has an extensive website at www.instone-brewer.com which discusses marriage and divorce from 1st century context.

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Social and psychological issues

Women are generally the financial victims of divorce due to the lack of equal pay for equal work in many countries and the fact that many women give up employment after marriage to bring up children. They are often left with the burden of looking after the children after the divorce while having to find work in low-paid jobs. Child support collection is a major problem as many fathers do not accept that they have an obligation towards their children. Many national and local governments provide some kind of welfare system for divorced mothers and their children. See single mother for details. Recognition of the problems faced by fathers and other relatives is given by self-help groups such as Families Need Fathers .

Causes of divorce

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

One cause considered, while not conclusive, arises from studies[1] described in Kristen O'Hara's book Sex as Nature Intended It. The book explains that relationships, which rely on strong levels of intimacy, may fail in part due to the physical effects of circumcision on sexual intercourse. Described in detail by Ronald Goldman's work [2], divorce rates in various nations are compared and strongly linked to male circumcision rates just 25 years prior. O'Hara's book describes that, in the case of circumcised intercourse, levels of satisfaction may fall over the years of marriage. This effect may have been known as early as the 12th century, as described by the philosopher Moses Maimonides. Among other factors, this factor may contribute to some couples divorcing due to loss of sexual fulfillment in one or both spouses.

effects on children
women's shelters etc.
human rights issues

United States

Under the laws of all of the states of the United States (excepting New York) a divorce is now called dissolution of marriage.

This change in nomenclature was concomitant with the trend of most states to depart from the more restrictive fault-based divorce to the more liberal no-fault divorce standard.

A number of states have discarded fault-based grounds for divorce, however all 50 states do offer some form of no-fault divorce.

  • Fault-Based Divorce

The procedural and substantive specifics of pleading vary among jurisdictions. Examples of fault-based grounds include: adultery, attempted murder, desertion, habitual drunkenness, infection of one’s spouse with venereal disease, insanity, impotency, mental cruelty, physical cruelty, and use of addictive drugs.

  • No-Fault Divorce

Again, the specifics vary among the several states. As a general statement however, a no-fault divorce occurs when neither the wife nor the husband is to blame for the breakdown of the marriage. Common bases for no-fault divorce are incompatibility, irreconcilable differences, and irretrievable breakdown of the marriage. In some jurisdictions, where the parties have lived separately for a statutoraly determined amount of time with the intent of permanent separation, this can constitute no-fault grounds.


Part and parcel to divorce are:

financial settlements
children's issues.
pre-nuptial agreements.

Canada

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

The Canada Divorce Act recognizes three grounds for divorce: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming. [3] 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. [4] 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.

Japan

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

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

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

The non-profit organization Children's Rights Network of Japan provides additional information in English about divorce in Japan, along with translations of Japanese family court laws and Japanese legal forms.

United Kingdom

In the UK, divorce is administered by the Lord Chancellor's Department, with the involvement of the DFES. Relevant laws are:

Global issues

Where people from different countries get married, and one or both then choose to reside in another country, the procedures for divorce can become significantly more complicated. Although most countries make divorce possible, the form of settlement or agreement following divorce may be very different depending on where the divorce takes place. In some countries there may be a bias towards the man regarding property settlements, and in others there may be a bias towards the woman, both concerning property, and also custody of any children. One or both parties may seek to divorce in a country which has jurisdiction over them. Normally there will be a residence requirement in the country in which the divorce takes place. Some of the more important aspects of divorce law involve the provisions for any children involved in the marriage, and problems may arise due to abduction of children by one parent, or restriction of access rights to children.

Statistics

In the United States, it is often quoted that "50% of marriages end in divorce," however we must closely examine the actual statistics to understand the actual divorce rate. According to the National Center for Health Statistics (part of the Center for Disease Control), in 2001 the per capita marriage rate was 7.8 marriages in 1,000 people (0.78%).[5] This means that for every 1,000 people living in the US, in 7.8 marriages were performed during the year 2001, or 15.6 individuals got married.[6] The divorce rate was 4.0 divorces per 1,000 people (0.40%), or 8.0 out of every 1,000 people got divorces during 2001.[7]

A more accurate concluding statement to draw from this data would be "The divorce rate is half the marriage rate." The statement "50% of marriages end in divorce" would instead have to study a sample of marriages throughout their duration, that is, over a period of many years, and determine how many of the marriages actually performed ended in divorce (as compared to annulment or death of a spouse). These two statements would be equivalent if (1) marriage and divorce trends did not change over a time period equal to the length of a marriage (say, 50 years), and (2) all divorces were performed in the same country as their marriage. While the second statement is close enough to true, the first one is clearly not, as during the ten year period from 1991 to 2001 the divorce rate decreased from 0.47% to the above stated 0.40%.[8]

See also

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