Divorce or
dissolution of
marriage is the final termination of a
marriage, canceling the legal duties and
responsibilities of marriage and dissolving the
bonds of matrimony between married
persons. In most countries, divorce requires the sanction of a
judge or other authority in a legal process.
In western countries, a divorce does not declare a marriage null
and void, as in an
annulment, but divorce
cancels the marital status of the parties. Where
monogamy is law, this allows each 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.
The legal process for divorce may also involve issues of
spousal support,
child
custody,
child support,
distribution of property and
division of debt, though these matters are usually only ancillary
or consequential to the dissolution of the marriage.
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.
In most jurisdictions, a divorce must be certified by a
court of law to become effective. The terms of
the divorce are usually determined by the court, though they may
take into account
prenuptial
agreements or
postnuptial
agreements, or simply ratify terms that the spouses may have
agreed to privately. In the absence of agreement, a contested
divorce may be stressful to the spouses and lead to expensive
litigation. Less adversarial approaches
to divorce settlements have recently emerged, such as
mediation and
collaborative divorce, which negotiate
mutually acceptable resolution to conflicts.
In some other
countries, like Portugal
, when the
spouses agree to divorce and to the terms of the divorce, it can be
certified by a non judiciary administrative entity, where also can
be served an Electronic Divorce
since March 2008. The effect of a divorce is that both
parties are free to marry again. (see
bigamy)
In cases involving children, governments have a pressing interest
in ensuring that disputes between parents do not spill over into
the family courts. One way of doing this is through the
encouragement of a
parenting plan.
In the
United
States
, many states now require parents to file a parenting plan when they legally separate or
divorce. In some states, divorcing parents are required to
take parenting classes and file their completion certificate with
the court.
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
, 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 behavior of the
parties when dividing property, debts, evaluating custody, and
support.
Laws vary as to the waiting period before a divorce is effective.
Also, residency requirements vary. However, issues of division of
property are typically determined by the law of the jurisdiction in
which the property is located.
No-fault divorce
Under a
no-fault divorce system,
the dissolution of a marriage does not require an allegation or
proof of fault of either party.
The application can be made by either party or by both parties
jointly.
The same holds true for Canada and Germany.
Forty-nine states of the United States have adopted no-fault
divorce laws, with grounds for divorce including incompatibility,
irreconcilable differences, and irremediable breakdown of the
marriage.
At-fault divorce
Prior to 1975, countries which permitted divorces also required
proof by one party that the other party had committed an act
incompatible to the marriage. This was termed "grounds" for divorce
(popularly called "fault") and was the only way to terminate a
marriage. Most jurisdictions around the world still require such
proof of fault.
In the United States, only New York
state still requires fault for a
divorce.
Fault-based divorces can be contested and may involve allegations
of
collusion of the parties, or
condonation,
connivance, or
provocation by the other party.
Contested fault divorces can be expensive, and not usually
practical as eventually most divorces are granted. Comparative
rectitude is a doctrine used to determine which spouse is more at
fault when both spouses are guilty of breaches.
Summary divorce
A summary (or simple) divorce, available in some jurisdictions, is
used when spouses meet certain eligibility requirements, or can
agree on key issues beforehand.
Key factors:
- Short marriage (less than 5 years)
- No children (or, in some states, they have resolved custody and
set child support payments)
- Minimal or no real property (no mortgage)
- Marital property is under a threshold (around $35,000 not
including vehicles)
- Each spouse's personal property is under a threshold (typically
the same as marital property)
Uncontested divorce
It is estimated that upwards of 95% of divorces in the US are
"uncontested," because the two parties are able to come to an
agreement (either with or without lawyers/mediators/collaborative
counsel) about the property, children and support issues. When the
parties can agree and present the court with a fair and equitable
agreement, approval of the divorce is almost guaranteed. If the two
parties cannot come to an agreement, they may ask the court to
decide how to split property and deal with the custody of their
children. Though this may be necessary, the courts would prefer
parties come to an agreement prior to entering court.
Where the issues are not complex and the parties are cooperative, a
settlement often can be directly negotiated between them. In the
majority of cases, forms are acquired from their respective state
websites and a filing fee is paid to the state.. Most US states
charge between $175 and $350 for a simple divorce filing.
Collaborative divorce and mediated
divorce are considered uncontested divorces.
Collaborative divorce
Collaborative divorce is
becoming a popular method for divorcing couples to come to
agreement on divorce issues. In a
collaborative divorce, the parties
negotiate an agreed resolution with the assistance of
attorneys who are trained in the collaborative
divorce process and in mediation, and often with the assistance of
a neutral financial specialist and/or divorce coach(es). The
parties are empowered to make their own decisions based on their
own needs and interests, but with complete information and full
professional support. Once the collaborative divorce starts, the
lawyers are disqualified from representing the parties in a
contested legal proceeding, should the
collaborative law process end prematurely.
Most attorneys who practice collaborative divorce claim that it can
be substantially less expensive than other divorce methods (regular
divorce or mediation). However, should the parties not reach any
agreements, any documents or information exchanged during the
collaborative process 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.
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
without attorneys. Divorce mediators may be attorneys who have
experience in divorce cases. Divorce mediation can be significantly
less expensive than litigation. The adherence rate to mediated
agreements is much higher than that of adherence to court
orders.
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.
A number of factors may contribute to divorce but many are often
poorly cited. The overall divorce rate is in decline in the US, but
so is the marriage rate. A 1995 study found a wide range of
unassociated factors including frequency of sex, wealth, race and
religious commitment
Among factors that are believed to be associated with a higher
divorce rate were cohabitation prior to marriage, and infrequent
church attendance.
United Kingdom
The number of divorces granted in the UK in 1961 was 27,000. This
doubled to 56,000 by 1969, and doubled to 125,000 divorces by 1972.
The number in 2002 was 160,000. The increase in divorces has been
largely attributed to the introduction of the Divorce Reform Act of
1969.
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.
Europe
In 2000, Belgium had the highest divorce rate at 2.9 per 1,000
people, and Italy and the Republic of Ireland the lowest rate at
0.7.
One study estimated that legal reforms accounted for about 20
percent of the increase in divorce rates in Europe between 1960 and
2002.
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).
South Asia
India and Sri Lanka are the two countries that have the lowest
divorce rates, around one and one and a half per cent 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
In
contrast to the Western world where
divorce was relatively uncommon until modern times, divorce was a
common occurrence in at least two pre-modern societies: Japan and the
Muslim world.
Mesopotamia
Divorce existed in
antiquity, dating
at least back to ancient
Mesopotamia.
Greco-Roman culture
The
ancient
Athenians
liberally
allowed divorce, but the person requesting divorce had to submit
the request to a magistrate, and the
magistrate could determine whether the reasons given were
sufficient.
Divorce was rare in early Roman culture but as their
empire grew in power and authority
Roman civil law embraced the maxim,
“matrimonia debent esse libera” ("marriages ought to be free"), and
either husband or wife could renounce the marriage at will. Though
civil authority rarely intervened in divorces, social and familial
taboos guaranteed that divorce occurred only after serious
circumspection.
Japan
In 19th century Japan, at least one in eight marriages ended in
divorce.
India
In India, Divorce and remarriage are legal.
Islam
In
Islamic law and
marital jurisprudence, divorce
is accepted and referred to as
talaq.
In the
medieval Islamic world and
the
Ottoman Empire, the rate of
divorce was higher than it is today in the modern
Middle East, which now has generally low rates
of divorce.
In 15th century Egypt
, Al-Sakhawi recorded the marital history of 500
women, the largest sample on marriage in the Middle Ages, and found that at least a third of
all women in the Mamluk Sultanate
of Egypt and Syria
married more
than once, with many marrying three or more times.
According
to Al-Sakhawi, as many as three out of ten marriages in 15th
century Cairo
ended in
divorce. In the early 20th century, some villages in
western Java
and the
Malay peninsula had divorce rates as
high as 70%.
See also
References
- Divorce Forms by State (US)
- http://www.cdc.gov/nchs/nvss/mardiv_tables.htm Divorce and
Marriage rates 2007
- http://www.cdc.gov/nchs/data/series/sr_23/sr23_022.pdf 1995 US
Divorce Analysis
- [
http://eclkc.ohs.acf.hhs.gov/hslc/Family%20and%20Community%20Partnerships/Self-Sufficiency/Healthy%20Marriage/Head%20Start%20March%20Newsletter.pdf]
- [1]
- http://www.statistics.gov.uk/cci/nugget.asp?id=170
- *"Talak". Encyclopaedia of Islam
External material
Hardcopy
External links
Top topics
Wikis
Quiz
Facts
Map
Misc
Search