Sermon on the Mount - Matthew 5:31-32 (Divorce)
31 "It has been said, 'Anyone who divorces his wife must give her a certificate of divorce.' 32But I tell you that anyone who divorces his wife, except for sexual immorality, makes her the victim of adultery, and anyone who marries a divorced woman commits adultery.
Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world. However, in most countries, divorce requires the sanction of a court or other authority in a legal process, which may involve the distribution of property, child custody, alimony (spousal support), child visitation/access, parenting time, child support, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person.
Divorce is different from annulment, which declares the marriage null and void, with legal separation or de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto (actual) separation (a process where the spouses informally stop cohabiting). Reasons for divorce vary, from sexual incompatibility or lack of independence for one or both spouses to a personality clash to infidelity.
The only countries that do not allow divorce are the Philippines and the Vatican City. In the Philippines, divorce for non-Muslim Filipinos is not legal unless the husband or wife is an undocumented immigrant and satisfies certain conditions. The Vatican City is a state ruled by the head of the Catholic Church, a religion that does not allow for divorce. Countries that have relatively recently legalized divorce are Italy (1970), Portugal (1975, although from 1910 to 1940, it was possible both for civil and religious marriage), Brazil (1977), Spain (1981), Argentina (1987), Paraguay (1991), Colombia (1991; from 1976 was allowed only for non-Catholics), Andorra (1995), Ireland (1996), Chile (2004) and Malta (2011).
Overview
Grounds for divorce vary widely from country to country. Marriage may be seen as a contract, a status, or a combination. Where it is seen as a contract, the refusal or inability of one spouse to perform the obligations stipulated in the contract may constitute a ground for divorce for the other spouse. In contrast, divorce is no fault in some countries (such as Sweden, Finland, Australia, and New Zealand), and divorce is no fault. This means it does not matter the reasons a party or parties want to separate. They can separate their free will without proving that someone is at fault for the divorce. Many jurisdictions offer the option of no-fault divorce and at-fault divorce. This is the case, for example, in many U.S. states.
Though divorce laws vary between jurisdictions, there are two basic approaches to divorce: fault based and no-fault-based. In some jurisdictions, one spouse may be forced to pay the attorney's fees of another spouse. However, even in some jurisdictions that do not require a party to claim their partner's fault, a court may still consider the parties' behavior when dividing property, debts, evaluating custody, shared care arrangements, and support.
Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, property division issues are typically determined by the law of the authority in which the property is located.
In Europe, divorce laws differ from country to country, reflecting differing legal and cultural traditions. In some countries, mainly (but not only) in some former communist countries, divorce can also be obtained only on one single general ground of "irretrievable breakdown of the marriage" (or a similar formulation). However, what constitutes such a "breakdown" of the marriage is interpreted very differently from jurisdiction to jurisdiction, ranging from very liberal interpretations (e.g., Netherlands) to quite restrictive ones (e.g., in Poland, there must be an "irretrievable and complete disintegration of matrimonial life," but there are many restrictions to granting a divorce). Separation constitutes a ground of divorce in some European countries (in Germany, e.g., a divorce is granted based on a 1-year separation if both spouses consent, or a 3-year separation if only one spouse consents).
Note that "separation" does not necessarily mean separate residences – in some jurisdictions, living in the same household but leading a separate life (e.g., eating, sleeping, socializing, etc. separately) is sufficient to constitute de facto separation; this is explicitly stated, e.g., in the family laws of Latvia or the Czech Republic.
Divorce laws are not static; they often change, reflecting evolving social norms of societies. In the 21st century, many European countries have made changes to their divorce laws, in particular by reducing the length of the necessary periods of separation, e.g., Scotland in 2006 (1 or 2 years from the previous 2 or 5 years); France in 2005 (2 years from the previous six years), Switzerland in 2005 (2 years from the previous four years), Greece in 2008 (two years from the previous four years). Some countries have completely overhauled their divorce laws, such as Spain in 2005 and Portugal in 2008. A new divorce law also came into force in September 2007 in Belgium, creating a new system that is primarily no-fault. Bulgaria also modified its divorce regulations in 2009. Also, in Italy, new laws came into force in 2014 and 2015 with significant changes in Italian law in the matter of divorce: apart from a shortening of the period of involuntary separation (6 months for uncontested divorces and one year for contested ones from the previous three years), are allowed other forms of getting a divorce – as an alternative to court proceedings, i.e., the negotiations with the participation of an advocate or agreement made before the registrar of Public Registry Office.
Austria, by contrast, is a European country where the divorce law remains conservative.
The liberalization of divorce laws is not without opposition, particularly in the United States. Indeed, in the U.S., specific conservative and religious organizations are lobbying for laws restricting divorce. In 2011, in the U.S., the Coalition for Divorce Reform was established, describing itself as an organization "dedicated to supporting efforts to reduce unnecessary divorce and promote healthy marriages."
The magisterium of the Roman Catholic Church founds the concept of marriage on natural moral law, elaborated by St. Thomas Aquinas, supplemented by the revealed Divine law. The Eastern Orthodox, the Doctor Angelicus, has been partially shared by the Eastern Orthodox Church throughout history.
Law
Types
Grounds for divorce differ from state to state in the U.S. Some states have no-fault divorce; some require a declaration of fault on the part of one partner or both; some allow either method in some jurisdictions. In some jurisdictions, the courts will seldom apply principles of fault. However, they might willingly hold a party liable for a breach of fiduciary duty to their spouse (for example, see Family Code Sections 720 and 1100 of the California Family Code).
In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect. The courts usually determine the terms of the divorce. However, they may take into account prenuptial agreements or post-nuptial agreements or ratify terms that the spouses may have agreed to privately (this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable). In the absence of an Agreement, a contested divorce may be stressful to the spouses.
In some other countries, when the spouses agree to divorce and the terms of the divorce, it can be certified by a non-judiciary administrative entity. The effect of a divorce is that both parties are free to marry again if a filing in an appellate court does not overturn the decision.
Contested divorce
Contested divorces mean that one of several issues must be heard by a judge at the trial level—this is more expensive, and the parties will have to pay for a lawyer's time and preparation. In such a divorce, the spouses cannot agree on issues such as child custody and division of marital assets. In such situations, the litigation process takes longer to conclude. The judge controls the outcome of the case. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate a mutually acceptable resolution to conflicts. This principle in the United States is called 'Alternative Dispute Resolution and has gained popularity.
At-fault divorce
Before the late 1960s, nearly all countries that permitted divorce required proof by one party that the other had committed an act incompatible with the marriage. This was termed "grounds" for divorce (popularly called "fault") and was the only way to terminate a marriage. No-fault divorce is available in all 50 states in the United States, as is the case with Australia, New Zealand, Canada, and other Western countries.
Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion of the parties (working together to get the divorce), condonation (approving the offense), connivance (tricking someone into committing an offense), or provocation by the other party. Contested fault divorces can be expensive and not usually practical as eventually; most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.
The grounds for a divorce that a party could raise and need to prove included 'desertion,' 'abandonment,' 'cruelty,' or 'adultery.' The requirement of proving a ground was revised (and withdrawn) by the terms of 'no-fault' statutes, which became popular in many Western countries in the late 1960s and early 1970s. In 'no-fault' jurisdictions, divorce can be obtained either on a simple allegation of 'irreconcilable differences,' 'irretrievable breakdown,' or 'incompatibility' concerning the marriage relationship or on the ground of de facto separation.
Summary
o A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet specific eligibility requirements or can agree on key issues beforehand.
o Key factors:
• The short duration of marriage (less than five years)
• Absence of children (or, in some jurisdictions, prior allocation of child custody and child-support direction and amount)
• Absence or minimal value of the real property at issue and any associated encumbrances such as mortgages
• Absence of agreed-as-marital property above a given value threshold (around $35,000, not including vehicles)
• Absence, concerning each spouse, of claims to the personal property above a given value threshold, typically the same as that for total marital property, with such claims including claims to the previous exclusive ownership of the property described by the other spouse as marital
o No-fault divorce
Most Western jurisdictions have a no-fault divorce system, which requires no allegation or proof of fault of either party. The barest of assertions suffice. For example, in countries that require "irretrievable breakdown," the mere assertion that the marriage has broken down will satisfy the judicial officer. In other jurisdictions requiring irreconcilable differences, the mere allegation that the marriage has been irreparable by these differences is enough for granting a divorce. Courts will not inquire into facts. A "yes" is enough, even if the other party vehemently says "no."
The application can be made by either party or by both parties jointly.
In jurisdictions adopting the 'no-fault' principle regarding whether to grant a divorce, some courts may still take into account the fault of the parties when determining some aspects of the content of the divorce decree, e.g., its terms for the division of property and debts and the absence, or amount, of spousal support. Provisions related to child custody are determined using a different fundamental standard: the child's or children's best interests; At the same time, some behaviors that may constitute marital fault (e.g., violence, cruelty, endangerment, neglect, or substance abuse) may also qualify as factors to be considered when determining child custody, they do so for the independent reason that they provide evidence as to what arrangement is in the child's or children's best interests in the future.
Uncontested divorce
It is estimated that over 95% of divorces in the U.S. are "uncontested" because the two parties can agree (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 agree, 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 prefer parties to agree before entering court.
Where the issues are not complex, and the parties are cooperative, a settlement often can be directly negotiated between them. In most cases, forms are acquired from their respective state websites, and a filing fee is paid to the state. Most U.S. states charge between $175 and $350 for a simple divorce filing. Collaborative divorce and mediated divorce are considered uncontested divorces.
In the United States, many state court systems are experiencing an increasing proportion of pro se (i.e., litigants represent themselves without a lawyer) in divorce cases. In San Diego, for example, the number of filings involving at least one self-representing litigant rose in 1992 to 77% in 2000, and in Florida, from 66% in 1999 to 73% in 2001. Urban courts in California report that approximately 80% of the new divorce filings are filed pro se.
Collaborative divorce
Collaborative divorce is a method for divorcing couples to agree on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with attorneys trained in the collaborative divorce process and mediation and often with the assistance of a neutral financial specialist or divorce coaches. 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 more cost-effective than other divorce methods, e.g., going to court.
Electronic divorce
Portugal, for example, allows two persons to file an electronic request for no-fault collaborative divorce in a non judiciary administrative entity. In specific cases, with no children, real property, alimony, or shared address, it can be completed within one hour.
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, a neutral attorney, or an attorney-mediator who can inform both parties of their legal rights but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all. Some mediation companies, such as Wevorce, also pair clients with counselors, financial planners, and other professionals to work through common mediation sticking points. Divorce mediators may be attorneys with experience in divorce cases or professional mediators who are not attorneys but have training in family court matters. Divorce mediation can be significantly less costly financially and emotionally than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders. An article in the Jerusalem Post by Hadassah Fidler explained that mediated divorces have become much more popular. Some countries (such as Israel) have instituted a new law requiring divorcing couples to consider mediation before applying to court.
Polygamy and divorce
Polygamy is a significant structural factor governing divorce in countries where this is permitted. Little-to-no analysis has been completed to explicitly explain the link between marital instability and polygamy, which leads to divorce. The frequency of divorce rises in polygamous marriages compared to monogamous relationships. Marriage differences in conjugal stability occur in polygamous unions by wife order. There are three main mechanisms through which polygamy affects divorce: economic restraint, sexual satisfaction, and childlessness. Many women escape economic restraint through divorcing their spouses when they are allowed to initiate a divorce.
Causes
An annual study in the U.K. by management consultants Grant Thornton estimates the leading proximal causes of divorce based on surveys of matrimonial lawyers.[50]
The leading causes in 2004 were:
• Adultery; Extramarital sex; Infidelity – 27%
• Domestic violence – 17%
• Midlife crisis – 13%
• Addictions, e.g., alcoholism and gambling – 6%
• Workaholism – 6%
• Other factors - 31%
According to this survey, husbands engaged in extramarital affairs in 75% of cases, and wives in 25%. In cases of family strain, wives' families were the primary source of strain in 78%, compared to 22% of husbands' families. Emotional and physical abuse were more evenly split, with wives affected in 60% and husbands in 40% of cases. In 70% of workaholism-related divorces, husbands were the cause, and in 30%, wives. The 2004 survey found that 93% of divorce cases were petitioned by wives, 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 five years are relatively divorce-free; if a marriage survives more than 20 years, it is unlikely to divorce.
Social scientists study the causes of divorce in terms of underlying factors that may perhaps motivate divorce. One of these factors is the age at which a person gets married; delaying marriage may provide more opportunity or experience in choosing a compatible partner. Wage, income, and sex ratios are other underlying factors that sociologists and economists have included in analyses.
The elevation of divorce rates among couples who cohabited before marriage is called the "cohabitation effect." Evidence suggests that although this correlation is partly due to two forms of selection (a) that persons whose moral or religious codes permit cohabitation are also more likely to consider divorce permitted by morality or religion and (b) that marriage based on low levels of commitment is more common among couples who cohabit than among couples who do not, such that the mean and median levels of commitment at the start of marriage are lower among cohabiting than among non-cohabiting couples), the cohabitation experience itself exerts at least some independent effect on the subsequent marital union.
In 2010, a study by Jay Teachman published in the Journal of Marriage and Family found that women who have cohabited or had premarital sex with men other than their husbands have an increased risk of divorce and that this effect is most vital for women who have cohabited with multiple men prior to marriage. To Teachman, the elevated risk of divorce is only experienced when the premarital partner(s) is someone other than the husband indicates that premarital sex and cohabitation are now a normal part of the courtship process in the United States. This study only considers data on women in the 1995 National Survey of Family Growth in the United States..
Divorce is sometimes caused by one of the partners finding the other unattractive. Recent studies show that the cohabitation effect on divorce varies across different cultures and periods. Another article published in the Journal of Marriage and Family found that premarital cohabitation increased the likelihood of subsequent divorce when cohabitation was uncommon in pre-reform China. However, this association disappeared when cohabitation became prevalent.
Effects
Some effects of divorce include academic, behavioral, and psychological problems. Although this may not always be true, studies suggest that children from divorced families are more likely to exhibit such behavioral issues than non-divorced families.
Effects on children
Psychological
Divorce is associated with diminished psychological well-being in children and adult offspring of divorced parents, including greater unhappiness, less satisfaction with life, a weaker sense of personal control, anxiety, depression, and greater use of mental health services. A preponderance of evidence indicates a causal effect between divorce and these outcomes.
A study in Sweden led by the Centre for Health Equity Studies (Chess) at Stockholm University/Karolinska Institutet, is published in the Journal of Epidemiology & Community Health found that children living with just one parent after divorce suffer from more problems such as headaches, stomach aches, feelings of tension and sadness than those whose parents share custody.
Children of divorced parents are also more likely to experience conflict in their marriages and are more likely to experience divorce themselves. They are also more likely to be involved in short-term cohabiting relationships, which often dissolve before marriage. Many studies show proof of intergenerational transmission of divorce, but this does not mean that having divorced parents will lead a child to divorce. Two key factors make this transmission of divorce more likely. First, inherited biological tendencies or genetic conditions may predispose a child to divorce and the "model of marriage" presented by the child's parents.
According to Nicholas Wall, former President of the Family Division of the English High Court, "People think that post-separation parenting is easy; it is exceedingly difficult, and as a rule of thumb, my experience is that the more intelligent the parent, the more determined the dispute. There is nothing worse for most children than for their parents to disparage each other. Parents do not realize the damage they do to their children by the battles they wage over them. Separating parents rarely behave reasonably, although they always believe that they are doing so and that the other party is behaving unreasonably."
Children involved in high-conflict divorce or custody cases can experience varying psychological distress due to conflict between their parents. Legal professionals recognize that alienating behaviors are common in child custody cases but are cautious about accepting the concept of parental alienation.
Research shows that children can be affected 2–4 years before the separation or divorce occurs. This can be due to parental conflict, the anticipation of a divorce, and decreased parental contact. Many couples believe that by separating or becoming legally divorced, they are helping their children, which will most likely be beneficial in situations of extreme parental conflict or abuse.
Exposure to marital conflict and instability often has negative consequences for children. Several mechanisms are likely to be responsible. First, observing overt conflict between parents is a direct stressor for children. Observational studies reveal that children react to inter-parental conflict with fear, anger, or the inhibition of normal behavior. Preschool children – who tend to be egocentric – may blame themselves for marital conflict, resulting in feelings of guilt and lowered self-esteem. The conflict between parents also tends to spill over and negatively affect the quality of parents' interactions with their children. Researchers found that the associations between marital conflict and children's externalizing and internalizing problems were primarily mediated by parents' use of harsh punishment and parent-child conflict. Furthermore, by modeling verbal or physical aggression, parents "teach" their children that disagreements are resolved through conflict rather than calm discussion. As a result, children may not learn the social skills (such as the ability to negotiate and reach compromises) necessary to form mutually rewarding relationships with peers.
Girls and boys deal with divorce differently. For instance, girls who initially show signs of adapting well later suffer from anxiety in romantic relationships with men. Studies also showed that girls who were separated from their fathers at a younger age tended to be angrier toward the situation as they aged. Anger and sadness were also common feelings in adolescents who had experienced parental divorce.
