Divorce

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Divorce or dissolution of marriage is the ending of a marriage before the death of either spouse, 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 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, 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. Japan retains a markedly lower divorce rate, though it has increased in recent years. 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 rates do 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.

Typical initial parenting order in Illinois, reducing father to visitor with standard two days out of every fourteen
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Typical initial parenting order in Illinois, reducing father to visitor with standard two days out of every fourteen
Court order seizing property in an American divorce case
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Court order seizing property in an American divorce case
Court order garnishing a father's income
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Court order garnishing a father's income

The term between divorce and remarriage varies depending on the country and the sex 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, although recognition of maternity is usually automatic. In most common law jurisdictions there is a presumption that the child born during the marriage is the husband'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 may involve litigation. If a man accepts the child as his own, he can execute a paternity affidavit and may, in many jurisdictions, incur obligations towards the child.

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

A divorce is generally accomplished through 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 also emerged in recent years, known as family mediation, an attempt to negotiate mutually acceptable resolution to conflicts.

Contents

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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.

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Great Britain

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Scotland

In Scotland, until 1560, when papal authority was abolished by Act of Parliament, the law on marriage was the canon law. This did not recognise divorce. With the Reformation, the common law recognised divorce for adultery and, by statute in 1573, desertion was also recognised as a ground for divorce. Thereafter, until 1830, the law was judicially developed by the Commissary Court of Edinburgh. In 1830, jurisdiction in divorce actions passed to the Court of Session. The grounds, however, remained the same until the development of the concept of the matrimonial offence resulted, in the Divorce (Scotland) Act 1938, in the addition of cruelty, sodomy, and bestiality as grounds; the concept of no-fault divorce was introduced in the same Act with the addition of ‘incurable insanity’ as a ground.

Growing recognition that ‘fault’ was not necessarily at the root of marriage breakdown led to the passage of the Divorce (Scotland) Act 1976, which provided that ‘irretrievable breakdown’ was the sole ground of divorce; but, contradictorily, went on to provide that this could only be evidenced by one of five sets of facts: adultery, desertion, unreasonable behaviour, two years separation plus the defenders consent to divorce, or five years separation. The third of these came to be so generously interpreted by the courts as to form the most popular ground for divorce for a time. Subsequently, the Sheriff Court acquired a concurrent jurisdiction in divorce actions; and the introduction of ‘do-it-yourself’ divorce has led to a situation in which the vast majority of divorces in Scotland are uncontentious; the very few exceptions mostly being those in which there is financial argument.

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England and Wales

Legal recognition of divorce in England came long later. 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 was 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 his 1990 work on the subject, Road to Divorce: England 1530-1987, the late historian Lawrence Stone was one of the first to point out that the legal barriers to divorce were not an absolute bar against remarriage, since the short life expectancy of the time guaranteed that one spouse would certainly outlive the other (and would soon be free to marry again).

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 previous 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 to their husband's adultery. In 1923 women were allowed to use the same grounds for divorce as men. In 1969, after much debate, 'irretrievable breakdown', on the basis of one of five grounds became the test for divorce.

Alternatives to divorce are 'nullity' (see annulment) or 'judicial separation' which may be suitable where there is religious scruples against divorce.

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Causes of divorce

An annual study in the UK by management consultants Grant Thornton, estimates the main causes of divorce based on surveys of matrimonial lawyers (see [1]).

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.

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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.

In Islam divorce is allowed, although discouraged. Only the husband can decide to have a no-fault divorce. Under Sharia law, a husband may repeat a declaration of divorce three times. Also, for husbands, plural marriage is allowed under Sharia, but. In Sharia, the custody of the children would always go to the father (more on Islamic child custudy later).

Islam, unlike Christianity, considers marriage to be a legal contract; and the act of obtaining a divorce is essentially the act of legally dissolving the contract. If a man pronounces three divorces against a free woman, or two against a slave, he can lawfully wed neither of them again, unless they have been espoused by another, and this second husband dies, or divorces them.

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 (for example, the prophet Malachi states "'I hate divorce,' says the LORD God of Israel"). 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 [2].

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Divorce's financial implications

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

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 (these causes are not unrelated). They more often obtain custody of children after the divorce, reducing their ability to pursue well-paid employment. Child support collection is a major problem: some fathers do not accept that they have an obligation towards their children, while others accept such an obligation but cannot fulfill it. Many national and local governments provide some kind of welfare system for divorced mothers and their children. See single mother for details.

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. Additionally non-custodial spouses (more often men) are often blocked from access to their children. This damages the children as absence of fathers strongly decreases children's overall well-being (delinquency, mental health, stability of marriage in turn, etc). Groups such as Families Need Fathers fight this trend by working to promote healthy relationships between children and their non-custodial parents and other relatives.

Currently in the US, federal law makes non-payment of child support a felony, whereas refusal to honor court-ordered visitation decision 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. Some feel this gives inordinate power to custodial parents, at the expense of both their former spouses and their children.

In the USA, 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 USA are not community property states. However, some 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 state judges have greater power to balance various contributions to the marriage.

A prenuptial agreement before marriage can reduce conflict over financial division should a divorce be undertaken later, although courts sometimes overturn these agreements.


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Divorce's medical and psychological implications

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Until recently it was thought that divorce was almost always a positive experience for spouses. More recent longtitudinal studies have revealed that many divorced people are no happier after divorce (although some are). For example University of Chicago sociologist Linda Waite [Waite 2003] analyzes the relationships between marriage, divorce and happiness using the National Survey of Family and Households. Her research shows that unhappily married adults who had divorced were no happier than those who had stayed married. The 13 measures of well being include self-esteem, personal mastery, depression, purpose in life and alcohol drinks per day.

Until recently it was also thought that children's difficulties with divorce, while common, were short-lived. However, recent work has shown 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; however, even strong optimists such as Mavis Hetherington [Hetherington 2002] acknowledge that many (not all) children of divorce are substantially disadvantaged. However, Hetherington (a University of Virginia professor) also states 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. This suggests that divorce builds upon itself from one generation to the next. In addition, children from divorced families initiate sex earlier and are more likely to cohabit before marriage. Cohabitation before marriage is correlated with an 9% greater chance of getting a divorce [Bramlett 2001].

Children from divorced families have a higher chance of behavioral problems, are six times more likely to be abused (in their step families) than children in intact families, and have a greater chance of living in poverty [Fagan 2000]. Other social consequences of divorce are also known: "offspring of divorce were more likely to engage in criminal behavior, drug use, alcoholism and suicide than children of never-divorced children (A Divorce Free America p.4)."

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 [Ahron 2004]. 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." A primary claimed benefit of divorce for children is that they become more committed to avoiding divorce. However, children of divorce in fact divorce more often, so this putative effect provides no net benefit.

Ahron's method of asking adult children of divorce how they feel about it also has the well-known weakness of "self-report" studies. Researchers are unlikely to hear negative responses even from people who were harmed (people are unlikely to say "it destroyed me" or "I've never fully recovered" after years of adjusting to the fact of one's parents' divorce...).

In cases of extremely high conflict, divorce can be positive. An article in the Oklahoma Bar Journal [Bartlett 2004] 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. In marriages falling short of this standard, however, studies overwhelmingly find that divorce has serious costs for children's well-being.

Medical statistics show that all parties to a divorce are likely (although, of course, not certain) to suffer increased morbidity and mortality. See [Gallagher 1999] for additional statistics and references. For example, divorce:

  • doubles the partners' risks of alcoholism and other substance abuse. 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% [Coombs 1991].
  • greatly increases the partners' and children's risks of depression. "Family disruption and low socioeconomic status in early childhood increase the long-term risk for major depression" [Gilman 2003].
  • for men and women, leads to a several times higher rate of psychiatric care than married people. Studies vary, suggesting from 5 to 21 times the risk, and vary over whether men or women are more seriously affected [Marks 1998] and [Bloom 1979].
  • multiplies men's suicide risk, making them nearly 9.7 times likelier than women to commit suicide even after controlling for other risk factors, according to a study by Augustine Kposowa, a University of California at Riverside sociologist [Kposowa 2003]. This study quantified earlier work [Kposowa 2000] that estimated an increased risk of 2.7 times for men. Divorce is now the leading factor linked with suicide.
  • is the leading factor in child suicide and homicide rates [Lester 1993].
  • reduces sons' life expectancy by about 4 years, daughters' by somewhat less, and parents' as well [for example, see [Smock 1993], [US Bureau of the Census 1991], [Dickson 1993], [Arendell 1995], and [Amato 1991].

Divorce also greatly increases the chances for

  • stroke See [Engstrom 2004]: "Marital dissolution is followed by an increased incidence of stroke."
  • cancer. Married cancer patients are also more likely to recover than divorced ones [Goodwin 1987].
  • heart problems. Some research suggests that childhood trauma, including parental divorce, can lead to much greater risk of heart attack in later life. See [O'Rand 2005]. Combined with job stress, divorce led to a 69% increase of death rate among men with above average risk of heart disease [Reuters 2002].
  • rheumatoid arthritis and osteoarthritis. [Mili 2002] shows a 30% increase in risk at any given age. [Kopec 2003] 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." [Nabaitu 1994].

Many additional studies show health problems not only for children of divorce, but for children of single-parent families in general, or children of those single-parent families not caused by death of one parent. For example, the rate of Sudden Infant Death Syndrome was 3 times higher when the birth registery indicated both parents but they were unmarried, and 7 times higher when only the mother even appeared on the registry. [Office for National Statistics (UK) 2002].

Yale researcher Harold J. Morowitz [Morowitz 1975] comments that "being divorced and a nonsmoker is [only] slightly less dangerous than smoking a pack a day and staying married."

[Wallerstein 2000], which revealed 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 confirmed her findings, and sometimes shown that her sample group was actually better off than average. Perhaps unsurprisingly, families with lower income, education, etc., do somewhat worse than Wallerstein's more advantaged subjects.

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Legal aspects of divorce

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Muslim societies

No-fault divorce is allowed in Islam, though Islam discourages divorce.

If the man seeks divorce 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). After the second birthday the child returns to the father.

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 or sexual impotence on the part of the husband. The husband may be given time to fix the problem, but if he fails, the judge will divorce the couple. [3].

See also: At-Talaq and Triple talaq.

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United States

Divorce in the United States is a matter of state rather than federal law. 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. Some countries provide "divorce mills" by which couples or individuals can circumvent residency requirements, but states are not bound to recognize such divorces.

Prior to the latter decades of the 20th century, a spouse seeking divorce had to show a tangible 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).

Typically, a county court’s family division judges petitions for dissolution of marriages. [4] [5] 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 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 and cheaply.

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 [Hoffman 1999]. Relatively amicable approaches such as this may reduce the trauma of divorce for all parties.

Hostile divorces, in contrast, can be expensive and sometimes acrimonious. 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 1990's 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. Attempt is made to assure the welfare of any minor children, generally through their graduation from high school. 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 suport are resolved.

The decades following introduction of no-fault divorce laws saw an extraordinary increase in divorce rates and economic sequelae such as increased poverty rates for divorced women and their children, and increased morbidity and mortality of divorced men. Women were for some time nearly always awarded child custody, though there has seldom if ever been statutory support for this tradition. In recent years this pattern has decreased, as more men fight for legal rights of access to their children (fathers' rights) and for gender equity in this area. Nearly all states have since formed gender bias task forces, and many courts are working toward the ideal of total equality and fairness, says a State Task Force Report by the National Center for State Courts [6].

Since the mid 1990's 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.

Recent sociological studies have discovered a variety of long-term economic, social, physical, and mental health consequences of divorce, although the full extent of such effects remains hotly debated. Policymakers' attention to such studies is growing, but has not yet substantially influenced the US family law system. These apply to women, men, and children, though perhaps effects on children should be of most concern (in particualar cases, courts may appoint a "guardian ad litem" to represent children's interests). Any list of formal sociological articles on aftereffects of divorce would quickly become obsolete, but among the more accessible books are [Wallerstein 2000] (best known for discovering the long-term effects of divorce on children) and [Hetherington 2002] (perhaps best known for emphasizing 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).

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 (see BBC News June 23, 1999 [7]. However, these are not properly "divorce" cases, and different laws apply.

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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 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. [8] 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. [9] 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 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. [10]

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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%).

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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 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 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.
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Scotland

About one third of marriages in Scotland end in divorce, on average after about thirteen years (‘Family Formation and Dissolution). 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.

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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:

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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.

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Statistics

The divorce rate is low among Muslims compared to other groups; some think that the rate is slowly rising. For example: in 2004 in Singapore (which has an 18% Muslim minority) many feared that the divorce rate among Muslims had risen too high: 9 out of every 1000 marriages, a ratio three times higher than Malaysia and five times higher than Indonesia[11].

In the United States,in 2003 there were 7.5 marriages per 1000 people and 3.8 divorces per 1000 according to the U.S. Department of Health and Human Services. In other words, there were half as many divorces as marriages that year. Statistics like these are frequently interpreted to mean that half of all marriages end in divorce. That conclusion, strictly speaking, does not follow from those data, but other government surveys of marriages over time have found similar percentages of marriages ultimately ending in divorce. A study [Bramlett 2001] based on a 1995 survey, found that 43 percent of first marriages ended in separation or divorce within 15 years, with 1 in 3 ending within 10 years and 1 and 5 ending within 5 years.

According to [Brinig 2000], 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.

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 percent of custodial mothers and 56.2 percent 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. A media kit for the National Child Support Enforcement Association, a child support advocacy group, claims that 60,000 professionals work to administer and enforce child support arrangements.

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See also

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External Links:

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References cited

  • Ahron, Constance. We're Still Family: What Grown Children Have to Say About Their Parents' Divorce Harper Collins, 2004. ISBN 0060193050.
  • Albrecht, S. L. "Reactions and adjustments to divorce: differences in the experiences of males and females. Family Relations 29 (1980): 59-70.
  • Arendell, T. "Fathers and divorce." Thousand Oaks, Calif: Sage Publications, 1995.
  • Amato, P. R. and B. Keith. "Parental divorce and adult wellbeing: A meta-analysis." Journal of Marriage and Family 53 (1991): 43-58.
  • Bartlett, Barbara Ann. "Parenting Coordination: A New Tool for Assisting High-Conflict Families." Oklahoma Bar Journal February 13, 2004. [12]
  • Bloom, B. R., S. W. White, and S. J. Asher. "Marital Disruption as a Stressful Life Event." Divorce and Separation: Context, Causes and Consequences. New York: Basic Books, 1979.
  • Bramlett, Matthew D. and William D. Mosher. "First Marriage Dissolution, Divorce, and Remarriage: United States." CDC National Center for Health Statistics Advance Data May 31, 2001; 323. [13]
  • Brinig, Margaret and Douglas W. Allen. "These Boots Are Made for Walking: Why Most Divorce Filers are Women." American Law and Economics Review 2000; 2(1): 126-129)
  • Coombs, Robert H. "Marital Status and Personal Well-Being: A Literature Review." Family Relations 1991; 40: 97-102.
  • Dickson, L. "The future of marriage and family in black America." Journal of Black Studies 1993; 23: 472-491
  • Engstrom G., F. A. Khan, E. Zia, I. Jerntorp, H. Pessah-Rasmussen, B. Norrving, and L. Janzon. "Marital dissolution is followed by an increased incidence of stroke." Cerebrovascular Disease 2004; 18(4): 318-24. [14]
  • Fagan, Patrick F. and Robert E. Rector. "The Effects of Divorce in America." Backgrounder #1373. The Heritage Foundation, June 5, 2000. [15]
  • Gallagher, Maggie. "The Abolition of Marriage." Regnery Publishing, 1996. ISBN 0895264641.
  • Gilman, Stephen E., Ichiro Kawachi, Garrett M. Fitzmaurice, and Stephen L. Buka. "Family Disruption in Childhood and Risk of Adult Depression." American Journal of Psychiatry May 2003; 160: 939-946. [16]
  • Goodwin, James S., William C. Hunt, Charles R. Key and Jonathan M. Sarmet. "The Effect of Marital Status on Stage, Treatment, and Survival of Cancer Patients. Journal of the American Medical Association 1987; 258: 3125-3130.
  • Hetherington, E. Mavis and John Kelly. For Better or For Worse: Divorce Reconsidered. W. W. Norton & Company, 2002. ISBN 0393048624.
  • Hoffman, David A. and Karen Tosh. "Coaching From The Sidelines: Effective Advocacy In Divorce Mediation." Massachusetts Family Law Journal 1999; 85. [17]
  • Kopec, J. A. and E. C. Sayre. "Traumatic experiences in childhood and the risk of arthritis: A prospective cohort study." Canadian Journal of Public Health 2003; 95(5): 361-65.
  • Kposowa, Augustine. "Marital status and suicide in the National Longitudinal Mortality Study Augustine J Kposowa." Journal of Epidemiology and Community Health 2000; 54:254-261. [18]. Cited in Sara Yang, "Men more likely to commit suicide after divorce, study finds." cnn.com, March 15, 2000."[19]
  • Kposawa, Augustine. "Divorce and suicide risk." Journal of Epidemiology and Community Health [20] 2003; 57: 993.
  • Lawson, Erma Jean and Tanya L. Sharpe. "Black Men And Divorce: Implications For Culturally Competent Practice." Minority Health Today, July 1, 2000. [21]
  • Lester, David. "Time-Series Versus Regional Correlates of Rates of Personal Violence." Death Studies 1993: 529-534.
  • Marks, Nadine F. and James D. Lambert. "Marital Status Continuity and Change among Young and Midlife Adults: Longitudinal Effects on Psychological Well-being." Journal of Family Issues 1998; 19: 652-686.
  • Mili, F., C. G. Helmick, M. M. Zack. "Prevalence of Arthritis: Analysis of Data from the US Behavioral Risk Factor Surveillance System, 1996-99." Journal of Rheumatology 2002; 29: 1981-1989. [22]
  • Morowitz, Harold J. "Hiding in the Hammond Report." Hospital Practice August 1975; 39.
  • Nabaitu J., C. Bachengana and J. Seeley. "Marital instability in a rural population in south-west Uganda: implications for the spread of HIV-1 infection." Africa 1994; 64 (2): 243-51. [23]
  • 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.
  • O'Rand, Angela M. and Jenifer Hamil-Luker. "Processes of Cumulative Adversity: Childhood Disadvantage and Increased Risk of Heart Attack Across the Life Course." Journals of Gerontology Series B: Psychological Sciences and Social Sciences 2005; 60: S117-S124. [24]
  • Reuters online. Cited in "Stressful job, bad marriage ups man's death risk." Heart Center Online, February 12, 2002. [25] Cites as source, Archives of Internal Medicine 2002; 162: 309-315.
  • Smock, Pamela J. “The Economic Costs of Marital Disruption for Young Women over the Past Two Decades.” Demography 1993; 30: 353-371.
  • U.S. Bureau of the Census. Population profile of the United States: 1991. Current Population Reports, Special Studies, Series P-23, No. 173. Washington, DC: Government Printing Office, 1995.
  • U.S. Bureau of the Census. Marriage and Divorce. General US survey information. [26]
  • U.S. Department of Health and Human Services. Survey of Divorce [27] (link obsolete).
  • Waite, Linda J., Don Browning, William J. Doherty, Maggie Gallagher, Ye Luo, and Scott M. Stanley. "Does Divorce Make People Happy? Findings from a Study of Unhappy Marriages." 2003. [28]
  • Wallerstein, Judith S., Julia M. Lewis, and Sandra Blakeslee The Unexpected Legacy of Divorce: The 25 Year Landmark Study. Hyperion, 2000. ISBN 0786863943.
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Additional Articles and Writings

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Resources

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Forms

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Legal information

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Men's Rights and Divorce

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Religious Perspectives

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Specific Localities

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