Divorce

In some jurisdictions, the courts will seldom apply principles of fault, but might willingly hold a party liable for a breach of a fiduciary duty to his or her spouse (for example, see Family Code Sections 720 and 1100 of the California Family Code). Grounds for divorce differs from state to state in the U.S. Some states have no-fault divorce; some states require a declaration of fault on the part of one partner or both; some states allow either method.[32]

In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect. The terms of the divorce are usually determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or simply 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 absence of agreement, a contested divorce may be stressful to the spouses.

In some other countries, when the spouses agree to divorce and to 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 divorces mean that one of several issues are required to be heard by a judge at 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 are not able to agree on issues for instance child custody and division of marital assets. In such situations, the litigation process takes longer to conclude.[33] 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 mutually acceptable resolution to conflicts. This principle in the United States is called 'Alternative Dispute Resolution' and has gained popularity.

Before the late 1960s, nearly all countries that permitted divorce 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. In the United States, no-fault divorce is available in all 50 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), or 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.[34]

The grounds for a divorce which 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 break-down', or 'incompatibility' with respect to the marriage relationship, or on the ground of de facto separation.[35]

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 duration of marriage (less than five years)
• Absence of children (or, in some jurisdictions, prior allocation of child custody and of child-support direction and amount)
• Absence or minimal value of 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, with respect to each spouse, of claims to personal property above a given value threshold, typically the same as that for total marital property, with such claims including claims to exclusive previous ownership of property described by the other spouse as marital

Most Western jurisdictions have a no-fault divorce system, which requires no allegation or proof of fault of either party.[36] 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, that of the child's or children's best interests; while 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 going forward.

It is estimated that upwards of 95% of divorces in the U.S. are "uncontested",[37] 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 to 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.[38] Most U.S. states charge between $175 and $350 for a simple divorce filing.[39][40][41] 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.[42] In San Diego, for example, the number of divorce filings involving at least one self-representing litigant rose from 46% 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.[43]

Collaborative divorce is a method for divorcing couples to come to an 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 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 practise collaborative divorce claim that it can be more cost-effective than other divorce methods, e.g., going to court.[44] Expense, they say, has to be looked at under the headings of financial and emotional. Also, the experience of working collaboratively tends to improve communication between the parties, particularly when collaborative coaches are involved, and the possibility of going back to court post-separation or divorce is minimized. In the course of the collaboration, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot be used in court except by agreement between the parties.

Neither can any of the professional team retained in the course of the collaboration be brought to court. Essentially, they have the same protections as in mediation. There are two exceptions: 1) Any affidavit sworn in the course of the collaboration and vouching documentation attaching to same and 2) any interim agreement made and signed off in the course of the collaboration or correspondence relating thereto. The parties are in control of the time they are prepared to give their collaboration. Some people need a lot of time to complete, whereas others will reach solutions in a few meetings. Collaborative practitioners offer a tightly orchestrated model with meetings scheduled in advance every two weeks, and the range of items to be discussed apportioned in advance of signing up as well as the more open-ended process, the clients decide.

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 common address, can be completed within one hour.[45]

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.[46] Divorce mediators may be attorneys who have experience in divorce cases, or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters. Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.[47] An article in the Jerusalem Post by Hadassah Fidler explained that mediated divorces have become a lot more popular, to the extent that some countries (such as Israel) have instituted a new law which will require divorcing couples to consider mediation before applying to court.[48]

Research done at Northern Illinois University on Family and Child Studies suggests that divorce of couples experiencing high conflict can have a positive effect on families by reducing conflict in the home. There are, however, many instances when the parent–child relationship may suffer due to divorce. Financial support is many times lost when an adult goes through a divorce. The adult may be obligated to obtain additional work to maintain financial stability. In turn, this can lead to a negative relationship between the parent and child; the relationship may suffer due to lack of attention towards the child as well as minimal parental supervision[58]

Studies have also shown that parental skills decrease after a divorce occurs; however, this effect is only a temporary change. "A number of researchers have shown that a disequilibrium, including diminished parenting skills, occurs in the year following the divorce but that by two years after the divorce re-stabilization has occurred and parenting skills have improved".[59]

Some couples choose divorce even when one spouse's desire to remain married is greater than the other spouse's desire to obtain a divorce. In economics, this is known as the Zelder Paradox, and is more common with marriages that have produced children, and less common with childless couples.[60]

Research has also found that recent divorcees report significantly higher hostility levels after the divorce than before, and that this effect applies equally to both male and female divorcees.[61]

In an American Psychological Association study of parents' relocation after a divorce, researchers found that a move has a long-term effect on children. In the first study conducted amongst 2,000 college students on the effects of parental relocation relating to their children's well-being after divorce, researchers found major differences. In divorced families in which one parent moved, the students received less financial support from their parents compared with divorced families in which neither parent moved. These findings also imply other negative outcomes for these students, such as more distress related to the divorce and did not feel a sense of emotional support from their parents. Although the data suggests negative outcomes for these students whose parents relocate after divorce, there is insufficient research that can alone prove the overall well-being of the child[62] A newer study in the Journal of Family Psychology found that parents who move more than an hour away from their children after a divorce are much less well off than those parents who stayed in the same location[63]

Divorce is associated with diminished psychological well-being in children and adult offspring of divorced parents, including greater unhappiness, less satisfaction with life, weaker sense of personal control, anxiety, depression, and greater use of mental health services. A preponderance of evidence indicates that there is a causal effect between divorce and these outcomes.[64]

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.[65]

Children of divorced parents are also more likely to experience conflict in their own 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.[64] There are many studies that show proof of an intergenerational transmission of divorce, but this does not mean that having divorced parents will absolutely lead a child to divorce. There are two key factors that make this transmission of divorce more likely. First, inherited biological tendencies or genetic conditions may predispose a child to divorce as well as the "model of marriage" presented by the child's parents.[66]

According to Nicholas Wall, former President of the Family Division of the English High Court, "People think that post-separation parenting is easy – in fact, it is exceedingly difficult, and as a rule of thumb my experience is that the more intelligent the parent, the more intractable the dispute. There is nothing worse, for most children, than for their parents to denigrate each other. Parents simply 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."[67]

Children involved in high-conflict divorce or custody cases can experience varying forms of parental alienation, which courts often consider to be a form of child abuse. Specific examples of parental alienation include brainwashing the child to cease their relationship with the other parent, telling the child that the other parent does not love them, teaching the child to call another adult by a parental name in effort to replace the other parent, limiting communication between the child and the other parent, and limiting quality time between the child and the other parent. If evidence reveals that a parent is actively alienating the child from their other parent, their case for custody can be severely damaged.[68]

Research shows that children can be affected 2–4 years before the separation or divorce even occurs. This can be due to parental conflict and anticipation of a divorce, and decreased parental contact. Many couples believe that by separating, or becoming legally divorced that they are helping their children, and in situations of extreme parental conflict of abuse it most likely will be beneficial.[69]

Exposure to marital conflict and instability, most 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.[70] 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. 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 largely mediated by parents' use of harsh punishment and parent–child conflict. Furthermore, 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) that are necessary to form mutually rewarding relationships with peers.[71]

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 observed at common feeling in adolescents who had experienced parental divorce.[72]

Frequently, children who have experienced a divorce have lower academic achievement than children from non-divorced families[73] In a review of family and school factors related to adolescents' academic performance, it noted that a child from a divorced family is two times more likely to drop out of high school than a child from a non-divorced family. These children from divorced families may also be less likely to attend college, resulting in the discontinuation of their academic career.[74]

Many times academic problems are associated with those children from single-parent families. Studies have shown that this issue may be directly related to the economical influence of divorce. A divorce may result in the parent and children moving to an area with a higher poverty rate and a poor education system all due to the financial struggles of a single parent.[75]

Children of divorced parents also achieve lower levels of socioeconomic status, income, and wealth accumulation than children of continuously married parents. These outcomes are associated with lower educational achievement.[64]

Young men or women between the ages of 7 and 16 who had experienced the divorce of their parents were more likely than youths who had not experienced the divorce of their parents to leave home because of friction, to cohabit before marriage, and to parent a child before marriage.[76]

Divorce often leads to worsened academic achievement in children ages 7–12, the most heightened negative effect being reading test scores. These negative effects tend to persist, and even escalate after the divorce or separation occurs.[69]

Children of divorced or separated parents exhibit increased behavioral problems and the marital conflict that accompanies parents' divorce places the child's social competence at risk.[77]

Since the mid-1990s, the divorce rate has increased to over 50% among baby boomers. More and more seniors are staying single; an analysis of census data conducted at Bowling Green State University predicted that divorce numbers will continue to rise. Baby boomers that remain unmarried are five times more likely to live in poverty compared to those who are married. They are also three times as likely to receive food stamps, public assistance or disability payments.[78]

Sociologists believe that the rise in the number of older Americans who are not married is a result of factors such as longevity and economics. Women, especially, are becoming more and more financially independent which allows them to feel more secure with being alone, in addition to changing perceptions of being divorced or single. This has resulted in less pressure for baby boomers to marry or stay married.[78]

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 declined for six years straight. In 2010, the number of divorces totalled 251,000, and the divorce rate was 1.99 (per 1,000 population).[79]

The Hindu Marriage Act is an Act of the Parliament of India enacted in 1955. Three other important acts were also enacted as part of the Hindu Code Bills during this time: the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956), the Hindu Adoptions and Maintenance Act (1956). DIVORCE UNDER VARIOUS ACTS IN INDIA The Parsi Marriage and Divorce Act, 1936 The dissolution of Muslim Marriage act, 1939 The Parsi Marriage and Divorce Act, 1936 The Special Marriage Act, 1956 The Foreign Marriage Act, 1969 Dissolution of Muslim Marriages Act, 1939 The Dissolution of Marriage and Judicial separation (under the Indian Divorce Act, 1869)

Due to the existence of diverse religious faiths in India, the Indian Judiciary has implemented laws separately for couples belonging to different religious beliefs. Mutual consent divorce procedure[80] is relatively easier and fast while contested divorce procedure[81] takes longer and depends on the religions of the couples.

In 2015, there were 53,448 divorces, in which 33% for less than 5 years of marriage and 20.8% for 5–9 years of marriage. The figure represents a 17.1% decline in the number when divorce rate peaked in 2006.[82]

One study estimated that legal reforms accounted for about 20% of the increase in divorce rates in Europe between 1960 and 2002.[83]

In 2015, the ten places with the highest divorce rates in the UK are all beside the sea, with Blackpool in the top position.[84] The highest number of divorce applications are reportedly made on Divorce Day, which is always the first Monday of the new year.[85]

In 2012, on average, first marriages that end in divorce last about eight years.[86] Of the first marriages for women from 1955 to 1959, about 79% marked their 15th anniversary, compared with only 57% for women who married for the first time from 1985 to 1989.[86] The median time between divorce and a second marriage was about three and a half years.[86]

A 2011 study found a 1% increase in the unemployment rate correlated with a 1% decrease in the divorce rate,[87] presumably because more people were financially challenged to afford the legal proceedings.

In 2010, success in marriage has been associated with higher education and higher age. 81% of college graduates, over 26 years of age, who wed in the 1980s, were still married 20 years later. 65% of college graduates under 26, who married in the 1980s, were still married 20 years later. 49% of high school graduates under 26 years old, who married in the 1980s, were still married 20 years later.[88] 2.9% of adults age 35–39 without a college degree divorced in the year 2009, compared with 1.6% with a college education.[89] A population study found that in 2004 and 2008, liberal-voting states have lower rates of divorce than conservative-voting states, possibly because people in liberal states tend to wait longer before getting married.[51] An analysis of this study found it to be misleading due to sampling at an aggregate level. It revealed that when sampling the same data by individuals, Republican-leaning voters are less likely to have a divorce or extramarital affair than Democratic-leaning voters and independents.[90][91]

In 2008, based on studies by Jenifer L. Bratter and Rosalind B. King made publicly available on the Education Resources Information Center, unions between white males and non-white females (and between Hispanics and non-Hispanic persons) have similar or lower risks of divorce than white-white marriages, unions between white male-black female last longer than white-white pairings or white-Asian pairings. Conversely, white female-black male and white female-Asian male marriages are more prone to divorce than white-white pairings.[92]

In 2008, a study[93] by the Christian poll group the Barna Group,[94] reports that a higher divorce rate was associated with infrequent church attendance.

In 2001, marriages between people of different faiths were three times more likely to be divorced than those of the same faith. In a 1993 study, members of two mainline Protestant religions had a 20% chance of being divorced in 5 years; a Catholic and an Evangelical, a 33% chance; a Jew and a Christian, a 40% chance.[95]

In 2000, the divorce rate reached its peak at 40%; since then it has slowly declined, and by 2014 it had settled in at 32%.[96][97]

The National Center for Health Statistics reports that from 1975 to 1988 in the U.S., in families with children present, wives file for divorce in approximately two-thirds of cases. In 1975, 71.4% of the cases were filed by women, and in 1988, 65% were filed by women.[98] It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement without a hearing (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues.

A 1995 study found a wide range of factors correlating with the divorce rate including frequency of sex, wealth, race, and religious commitment.[99]

In 2016, based on https://www.budgetdirect.com.au/blog/marriage-and-divorce-statistics-australia.html the divorce percent was 0.2%[100]

In 2017, based on http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/3310.0Main%20Features42017%5B%5D the divorce percent was 5%[101]

Based on https://aifs.gov.au/facts-and-figures/marriage-and-divorce-rates the divorce percent is about 5%[102]

According to https://www.marieclaire.com.au/divorce-statistics-australia the divorce percentage is about 2%[103]

New Zealand

In 1992, there were 9,114 divorces, and the divorce rate (number of divorces per 1,000 existing marriages) was 11.9 or 1.19%.

In 2017, there were 8,001 divorces and the divorce rate (number of divorces per 1,000 existing marriages) was 8.4 or 0.84%.

Upon dissolution of a same-sex marriage, legal questions remain as to the rights of spouses to custody of the biological children of their spouses.[105] Unresolved legal questions abound in this area.[106]

Child custody policies include several guidelines that determine with whom the child lives following divorce, how time is divided in joint custody situations, and visitation rights. The most frequently applied custody guideline is the best interests of the child standard, which takes into account the parents' preferences, the child's preferences, the interactions between parents and children, children's adjustment, and all family members' mental and physical health.[107]

Roman married couple.

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. The Christian emperors Constantine and Theodosius restricted the grounds for divorce to grave cause, but this was relaxed by Justinian in the 6th century.

In post-classical Mali Laws on divorced women as well as their status were documented in the Timbuktu manuscripts.[116]

After the fall of the Roman Empire, familial life was regulated more by ecclesiastical authority than civil authority. The Catholic and Orthodox Church had, among others, a differing view of divorce.

The Orthodox Church recognized that there are rare occasions when it is better that couples do separate. For the Orthodox, to say that marriage is indissoluble means that it should not be broken, the violation of such a union, perceived as holy, being an offense resulting from either adultery or the prolonged absence of one of the partners. Thus, permitting remarriage is an act of compassion of the Church towards sinful man.[117]

Under the influence of the Catholic Church, the divorce rate had been greatly reduced by the 9th or 10th century,[118] which considered marriage a sacrament instituted by Jesus Christ and indissoluble by mere human action.[119]

Although divorce, as known today, was generally prohibited in Catholic lands after the 10th century, separation of husband and wife and the annulment of marriage were well-known. What is today referred to as "separate maintenance" (or "legal separation") was termed "divorce a mensa et thoro" ("divorce from bed-and-board"). The husband and wife physically separated and were forbidden to live or cohabit together, but their marital relationship did not fully terminate.[120] Civil courts had no power over marriage or divorce. The grounds for annulment were determined by a Catholic church authority and applied in ecclesiastical courts. Annulment was for canonical causes of impediment existing at the time of the marriage. "For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio."[121][122][123] The Catholic Church held that the sacrament of marriage produced one person from two, inseparable from each other: "By marriage, the husband and wife are one person in law: that is, the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything."[124] Since husband and wife became one person upon marriage, recognition of that oneness could be rescinded only on the grounds that the unity never existed to begin with, i.e., that the proclamation of marriage was erroneous and void from the start.

Henry VIII of England broke with the Catholic Church in order to obtain an annulment.

After the Reformation, marriage came to be considered a contract in the newly Protestant regions of Europe, and on that basis, civil authorities gradually asserted their power to decree a "divortium a vinculo matrimonii", or "divorce from all the bonds of marriage".

Since no precedents existed defining the circumstances under which marriage could be dissolved, civil courts heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce,[125] and considered divorce to be contrary to public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred vow to the "innocent spouse". If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage".[126]

Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment, adultery, or "extreme cruelty".[127] An exception to this trend was the Anglican Church, which maintained the doctrine of marital indissolubility.

During the English Civil War, the Puritans briefly passed a law that divested marriage of all sacrament, leaving it as a secular contract that could be broken. John Milton wrote four divorce tracts in 1643–1645 that argued for the legitimacy of divorce on grounds of spousal incompatibility. His ideas were ahead of their time; arguing for divorce at all, let alone a version of no-fault divorce, was extremely controversial and religious figures sought to ban his tracts.[128] In 1670 a precedent was first set with an Act of Parliament allowing Lord John Manners to divorce his wife, Lady Anne Pierrepont, and until the passage of the Matrimonial Causes Act 1857, divorce could only be obtained through a specific Act of Parliament.[129]

Joséphine, first wife of Napoleon, obtained the civil dissolution of her marriage under the Napoleonic Code of 1804.

The move towards secularisation and liberalisation was reinforced by the individualistic and secular ideals of the Enlightenment. The Enlightened absolutist, King Frederick II ("the Great") of Prussia decreed a new divorce law in 1752, in which marriage was declared to be a purely private concern, allowing divorce to be granted on the basis of mutual consent. This new attitude heavily influenced the law in neighbouring Austria under Emperor Joseph II, where it was applied to all non-Catholic Imperial subjects.[130] Divorce was legalised in France after the French revolution on a similar basis, although the legal order of the ancien regime was reinstated at the Bourbon restoration of 1816. The trend in Europe throughout the 19th century, was one of increased liberalisation; by the mid-19th century, divorce was generally granted by civil courts in the case of adultery.

Marilyn Monroe signing divorce papers with celebrity attorney Jerry Giesler.

In Britain, before 1857 wives were regarded as under the economic and legal protection of their husbands, and divorce was almost impossible. It required a very expensive private Act of Parliament costing perhaps £200, of the sort only the richest could possibly afford. It was very difficult to secure divorce on the grounds of adultery, desertion, or cruelty. The first key legislative victory came with the Matrimonial Causes Act 1857, which passed over the strenuous opposition of the highly traditional Church of England. The new law made divorce a civil affair of the courts, rather than a Church matter, with a new civil court in London handling all cases. The process was still quite expensive, at about £40, but now became feasible for the middle class. A woman who obtained a judicial separation took the status of a feme sole, with full control of her own civil rights. Additional amendments came in 1878, which allowed for separations handled by local justices of the peace. The Church of England blocked further reforms until the final breakthrough came with the Matrimonial Causes Act 1973.[131][132]

In Spain, the 1931 Constitution of the Second Spanish Republic for the first time recognised a right to divorce. The first law to regulate divorce was the Divorce Act of 1932, which passed the Republican Parliament despite the opposition of the Catholic Church and a coalition of the Agrarian Minority and Minority Basque-Navarre Catholic parties. The dictatorship of General Franco abolished the law. After the restoration of democracy, a new divorce law was passed in 1981, again over the opposition of the Catholic Church and part of the Christian Democrat party, then a part of the ruling Union of Democratic Center. During the first socialist government of Felipe González Márquez, the 1981 law was amended to expedite the process of separation and divorce of marriages, which was again opposed by the Church, which called it "express divorce".

In Italy, the first divorce law was introduced on 1 December 1970, despite the opposition of the Christian Democrats,[133] and entered into force on 18 December 1970. In the following years, the Christian Democrats, supported also by parties opposed to the law, promoted a recall referendum. In 1974, in a referendum, the majority of the population voted against a repeal of the divorce law. A feature of the 1970 divorce law was the long period of marital separation of five years required. This period was reduced to three in 1987 and to a year in 2015, in the case of judicial separation, and six months in the case of separation by mutual agreement.

Ireland and Malta approved divorce at referenda in 1995 and 2011 respectively.

Divorce rates increased markedly during the 20th century in developed countries, as social attitudes towards family and sex changed dramatically.[134] Divorce has become commonplace in some countries, including the United States,[135] Canada, Australia, Germany, New Zealand, Scandinavia, and the United Kingdom.[136]

In the Edo Period (1603–1868), husbands could divorce their wives by writing letters of divorce. Frequently, their relatives or marriage arrangers kept these letters and tried to restore the marriages. Wives could not divorce their husbands. Some wives were able to gain sanctuary in certain Shinto "divorce temples". After a wife had spent three years in a temple, her husband was required to divorce her.[137] In 19th century Japan, at least one in eight marriages ended in divorce.

There are four types of divorce in Japan: divorce by agreement in which the divorce is mutual; divorce by mediation, which happens in family court; divorce by decision of family court that takes place when a couple cannot complete a divorce through mediation; and divorce by judgment of a district court.[138]

On a national level, the Special Marriage Act, passed in 1954, is an inter-religious marriage law permitting Indian nationals to marry and divorce irrespective of their religion or faith. The Hindu Marriage Act, in 1955 which legally permitted divorce to Hindus and other communities who chose to marry under these acts. The Indian Divorce Act 1869[139] is the law relating to the divorce of person professing the Christian religion. Divorce can be sought by a husband or wife on grounds including adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, and leprosy.[140] Divorce is also available based on mutual consent of both the spouses, which can be filed after at least one year of separated living. Mutual consent divorce can not be appealed, and the law mandates a minimum period of six months (from the time divorce is applied for) for divorce to be granted.[141] Contested divorce is when one of the spouse is not willing to divorce the other spouse, under such condition the divorce is granted only on certain grounds according to the Hindu marriage act of 1955. While a Muslim husband can unilaterally bring an end to the marriage by pronouncing talaq,[142] Muslim women must go to court, claiming any of the grounds provided under the Dissolution of Muslim Marriage Act.[143]

In the first major family law reform in the last decade, the Supreme Court of India banned the Islamic practice of "Triple Talaq" (divorce by uttering of the "Talaq" word thrice by the husband). The landmark Supreme Court of India judgment was welcomed by women activists across India.[144]

Official figures of divorce rates are not available, but it has been estimated that 1 in 100 or another figure of 11 in 1,000 marriages in India end up in divorce.[145]

Various communities are governed by specific marital legislation, distinct to Hindu Marriage Act, and consequently have their own divorce laws:

• The Parsi Marriage and Divorce Act, 1936[146]
• The Dissolution of Muslim Marriage act, 1939[147]
• The Foreign Marriage Act, 1969[148]
• The Muslim Women (Protection of Rights on Divorce) Act, 1986[149]

An amendment to the marriage laws to allow divorce based on "irretrievable breakdown of marriage" (as alleged by one of the spouses) is under consideration in India.[150] In June 2010, the Union Cabinet of India approved the Marriage Laws (Amendment) Bill 2010, which, if cleared by Parliament, would establish "irretrievable breakdown" as a new ground for divorce.[151] Under the proposed amendment, the court before proceeding to the merits of the case must be satisfied by the evidences produced that parties have been living apart for a continuous period of not less than three years immediately preceding the presentation of the petition.[152]

Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are talaq (repudiation), khulʿ (mutual divorce), judicial divorce and oaths. The theory and practice of divorce in the Islamic world have varied according to time and place.[153] Historically, the rules of divorce were governed by sharia, as interpreted by traditional Islamic jurisprudence, and they differed depending on the legal school.[154] Historical practice sometimes diverged from legal theory.[154] In modern times, as personal status (family) laws were codified, they generally remained "within the orbit of Islamic law", but control over the norms of divorce shifted from traditional jurists to the state.[153]

Divorce as a means of terminating marriage is illegal for all Filipinos except Filipino Muslims. There is only civil annulment after a lengthy legal separation. The process is costly and long, and there are many legally married couples in extramarital relations, even without a divorce law.

Code of Muslim Personal Laws of the Philippines, known as Presidential Decree (PD) No. 1083, Title II- Marriage and Divorce, Chapter 3-Divorce allows for divorce recognized by the state. There are two sharia courts in the Philippine judicial system that hear these cases.

On July 27, 2010, Gabriela Women's Party filed in Congress House Bill No 1799, or the Divorce Bill of the Philippines, as one of many attempts to introduce pro-divorce legislation. Senator Pia Cayetano has filed a separate divorce bill in the Senate. During that time, the Philippines, along with Malta and the Vatican, are the three most conservative countries on the issue of divorce. The bill did not pass any level of legislation because of this.

In 2013, the divorce bill was refiled, however, did not pass any level of legislation as well.

In a latest attempt, the divorce bill was refiled again in 2017. On February 22, 2018, the House of Representatives committee on population and family relations approved a bill seeking to legalize divorce, the first time in Philippine history for such a measure to pass the committee level of legislation. The majority of the members of the House of Representatives (lower house of Congress), both majority and minority blocs, are in favor of divorce, however, divorce continues to be a divisive issue in the Senate (upper house of Congress), as stark opposition is present among male senators.[155][156]