DIVORCE part 1
by John Thomas Lowe
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).
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.