Divorce

History

In Antiquity

In ancient Greece, the divorce exists in various forms according to the quoted . With Athens, it can be obtained by mutual assent or on the initiative of the one of the couple. When he is asked by the husband, he takes the form of a Répudiation: it is enough for the husband to return his wife of the marital home, without it being to him need to be justified. In practice, the Dot constitutes a powerful brake: when the marriage east dissolves, the woman recovers her dowry - except in the event of Adultère - with an interest of 18%. On its side, this one has the right to require the divorce, but via its legal guardian (father, brother or any other male relative): the request, duly justified, is then lodged with the Archonte which examines it and chooses to take action pursuant or not to him. The ill treatments constitute a valid reason for separation, but not the Infidélité of the husband. It seems that it was rather badly seen for a woman to ask the divorce: Euripide thus makes say to its Médée: “the divorce tarnishes the reputation of a woman, and it cannot, it, to repudiate its spouse. ” The marriage having for goal to perpetuate the male line, the children remain under the guard of their father after the divorce. With the hellenistic time, the divorce is more formalized: legal documents take note of the divorce and the consequences determine some. The most important provision relates to the dowry, restored with the ex-wife. This one is entitled however never to any leaves the goods the household.

At the Roman , the divorce was practiced. At the beginning, the right to divorce was reserved to the men, but very quickly the women obtain this right. The marriage which was initially a Rituel religious and social désacralise as the remainder of the Roman company. It was codified in the right. At the end of the Empire, the divorce becomes hardly formal, because for reasons of simplification, the marriage is compared to a Contrat. Single people remaining however disadvantaged by the law (tax…).

With the Middle Ages

To the beginning of the the Middle Ages, the marriage is not devoted and the written contracts fall in disuse. The marriage only makes it possible to seal alliances. He is thus regarded as normal being able to break the marriage.

Some cruel laws envisage as follows:

the Repudiation of the woman by the husband, with many possible cases;
the repudiation of the husband by the woman, more restrictive;
divorce by consent.

The Église is hardly favorable to the divorce and regards the marriage as insoluble. However, the rules on the matter appear especially in decisions of the Concile S private individuals, which approach often only particular cases and bring contradictory answers.

For a long time, two doctrines are opposed.

One tends to consider that the marriage can be broken in no case, position resting in particular on holy Augustin.
the other reserve divorce with the case of adultery on behalf of the wife. She is based on two sentences of the Évangile according to Matthieu, in particular this one: “Any man who repudiates his wife, except the case of prostitution , exposes it to adultery” (MT, V, 32).

It is the thesis of the absolute insolubility which carries it thereafter, becoming even only defended at the 12th century.

The Church tends to reinforce the character crowned of the marriage, like its corollary, insolubility.

Thus, in 805, it makes compulsory the passage in front of a priest. However, a few years later, the presence of only laic witnesses is accepted. In 1215, at the time of the IVe council of Lateran, the marriage becomes a Sacrement. Insolubility is the subject of pontifical texts included in the Décrétale S of Gregoire IX.

As from this time, the insolubility of the marriage is regarded as absolute until death of the husbands. The Church admits only the judicial separation (sometimes called divortium ), which prohibits a new marriage.

In 1563, the Catholic church confirms the statute of sacrament to the marriage, to counter the Protestant Churches which they authorize the divorce. In France, the royal capacity and the courts confirm this position.

At the end of the Old Mode, philosophers like Voltaire, in particular in his philosophical Dictionary , Montesquieu, are favorable to the divorce.

Divorce in France since the Revolution

Revolution and Empire

The September 20th 1792, a law allowing both united to break the marriage is created. The divorce can be marked by mutual Consentement, for “mutual incompatibility or of character” or for ascribable causes with one of the husbands (preceding the “divorce for fault”).

The divorce becomes a simple procedure then, without judge, who does not oblige the husbands to justify their request. The divorce can be proclaimed without any reason.

However, a petition for divorce by mutual assent was allowed only at the end of one minimum two years of common life; undoubtedly time to make the share of the things. Moreover, except in certain cases, a time is necessary between the request and the delivery of the divorce; during this time, a kind of court of family endeavors to reconcile the husbands.

This law is criticized by the conservatives for his too great liberalism; they denounce its abuses and the anarchy which it would cause. In 1804, the Civil code French reconsiders the preceding reform. The divorce by consent is preserved, but under so restrictive conditions which it falls in disuse (authorization of the parents, five appearances before the president of the court, prohibition of remarriage in the three years following the divorce…). Only the divorce for fault remains applied.

Restoration with the Second Empire

The May 8th 1816, the divorce is again removed by the law Bonald. He is regarded as a “revolutionary poison”. The royalty wants “to return to the marriage all its dignity in the interest of the religion, manners, monarchy and the family”. None the following modes plans to restore it.

However, the re-establishment of the divorce will be one of the first claims of the defenders of the women's rights like Flora Tristan.

Starting from 1876, the deputy Alfred Naquet deposits successively three private bills tending to restore the divorce for fault. It fails.

IIIe Republic

The July 27th 1884, Alfred Naquet succeeds in making accept a law (which bears its name) on the divorce. The divorce is again authorized but only in the event of precise faults (Adultère, judgment with an afflictive and defamatory sorrow, excess, maltreatment and Injure S low registers).

In the following years, other laws intervene to modify these provisions:

In 1886, a law contributes to simplify the procedure.
In 1893, another law gives to the divorced woman full capacity.
the December 15th 1904 is promulgated a law authorizing the marriage of the adulterous wife with her accomplice. The same law modifies the fate of the hybrid children: their legitimation seems easier, but some fear a kind of bigamy which would make it possible to the father to have legitimate children born from several women.
the June 6th 1908, a law makes it possible to make compulsory for the judge the request for conversion of judicial separation into divorce presented by one of the two husbands three years after the judgment.

The mutual assent not being admitted, two husbands which would not require that to separate by amicable agreement are obliged to be written one with the other, generally under the dictation of their lawyers, the letters of insults which one will be able to then produce in front of the courts! This situation absurdity involves sharp tensions within the couple, and will be worth some happenings justice astonishing (the divorces for fault of Sacha Guitry, comprising letters of mutual insults where one easily recognizes the spirit of the playwright on a side like other). The faulty spouse must sometimes pour damages in accordance with article 266 of the Civil code French.

Mode of Vichy

The Régime of Vichy is unfavorable to the divorce. The law of the April 2nd 1941 prevents the married couples since less than 3 years divorcing. It also makes incentive with the divorce by a third an offense.

IVe Republic

The ordinance n°59-274 of February 4th, 1959 relating to the marriage contracted by the people of local civil statute in Algeria, followed by a decree on enforcement of a law of September 17th, 1959 published with the J.O.R.F. of September 19th, 1959, specifies the modes of enforcement of the civil code marriage divorce in the “Departments of Algeria”.

The marriage can be dissolved (except in the event of death) returned only by decision of the courts by the cadi or it Justice of the Peace. A judgment of divorce is obligatory. What amounts prohibiting the divorce by Talâq.

The acts noting the repudiations occurred before this date were to be transcribed on the registers of civil statue. The production of an extract of the transcription of the act of repudiation proves the dissolution of the marriage.

Contemporary time

July 11th 1975, Valery Giscard d'Estaing promulgates the law 75-617. It is a deep reform of the divorce. It retains three causes of divorce, given in article 229 of the civil code:

mutual assent, itself with two alternatives:

joint request (gracious) Article 231;
request formulated by a husband and accepted by the other (contentious) Article 233;

rupture of the common life (dispute), admissible request at the end of seven years only of separation;
fault (Article 242) (contentious), in the process of disappearance.

The divorce for fault can be marked when one of the husbands is condemned to a defamatory sorrow (although in all logic it is never the sorrow which is defamatory, but well the crime which justified the judgment).

With the promulgation of the new penal code, the mention of the defamatory sorrows was replaced by a reference to the criminal sorrows (at least ten years of prison).

Substantive law

In France

Current legislation

Law 2004-439 of May 26th, 2004 aims at simplifying the divorce procedures. It also corrected certain errors of the law of 1975. The objective was to alleviate the relations between the husbands who resort to the divorce, while maintaining the character legal of the divorce, as opposed to what certain lawyers and members of Parliament would have wished. From now on, new article 229 of the civil code recognizes four cases of divorce:

divorce by consent (Article 230);
divorce by acceptance of the principle of the rupture of the marriage (Article 233);
divorce by final deterioration of the marital bond (Article 237);
divorce for fault (Article 242).

This law supports the conciliation between the husbands in front of the judge and gives more capacities to this one. The divorce by consent is from now on faster before, since only one interview of conciliation is from now on necessary, against two. In the same way, in the event of separation in fact, the divorce can be more quickly marked, since at the end of two years of rupture of the common life, the divorce can be required for final deterioration of the marital bond, against six years with the old law.

The judge can in particular put forward to the husbands a measure of Médiation and, after having collected their agreement, designate a family mediator to proceed to it; to enjoin the husbands to meet a family Mediator which will inform them on the object and unfolding of the mediation.

Towards a progressive disappearance of the divorce for fault ?

The divorce for fault does not have any more interest for large world since 1974, date from which the tendency was to entrust the residence of the child to the mother independently of any question of “fault”. The Alimony does not depend owing to the fact that there is fault or not (since it is to the children that it is intended), and community divides it either. The only thing which makes the difference between the “faulty” spouse and the other would be under these conditions the payment of the expenses of lawsuit: a trifle compared to the other expenses of the divorce, i.e. nearly 5000 euros on average, all ancillary costs including those of rehousing). This is why it had been planned to remove the divorce for fault. This last was however preserved by the law of 2004, to take account of the cases of marital violence in particular.

A reason which preserves at the divorce for fault all its strength in the courts, is that the question of the compensatory Prestation remains related to the faulty character or not divorce: except in certain precise cases, the husband with the exclusive wrongs whose the divorce is marked cannot claim for the benefit of such a service.

The passion character or violent one of certain separations is such as it is not rare that the husbands, even without drawing some from notable advantage in the pecuniary plan, wish to see recognizing in justice the wrongs of the other having led to the rupture of the couple.

The legal terms employed in the divorce are sometimes badly included/understood the justiciable ones: even when the divorce is marked with the wrongs of the relative who becomes guard, it is the other relative who is condemned (it is the term sometimes used in the statements of the judgments) to pour the pension. This terminology, which points out expressions used in criminal justice, harms sometimes the amicable settlement of the divorce.

It should indeed be understood that the maintenance obligation of the parents towards their children, which justifies the payment of this pension, is independent of the faults having led to the divorce.

Divorce and religion

The marriage having a dimension crowned in the majority of the religions, the rupture of this bond (divorce) is a question whose religions are strongly worried.

To choose to marry religieusement gives a spiritual dimension to the ceremony. At the time of the celebration of the marriage, the husbands solemnly promise in front of God to like and remain faithful during the whole life. But here is, with the wire of time, the love is exhausted, the couple beats wing, the husbands note that they were mistaken and they consider separation. In the majority of the religions the not-consumption of the marriage is a cause of cancellation of the marriage. The consumption is defined as the sexual relation between the husbands.

Judaism

The Judaïsme admits the Répudiation and the divorce, but seeks, when that is possible, to limit the practice of it.

The divorce is exclusively given by the husband. It can however make it only if his wife is agreeing. It cannot, to in no case, do it under the constraint or the influence.

In certain quite precise and verifiable cases by, at least, two witnesses in front of the qualified Rabbinical Court (Beth DIN), the divorce is even an obligation. However, all the witnesses are not acceptable. Indeed, they must have a reputation as well as a practice of the Judaism irreproachable. All holding them and the outcomes of the case are studied with meticulousness.

Christianity

The Church Catholique regards the marriage as insoluble, except by death. This position was strongly recalled at the time of the Concile of Thirty.

One speaks sometimes about Annulation of the marriage , but the Canon law (right of the Roman Catholic church) makes mention only “recognition of nullity of the sacrament of marriage”.

The catholic marriage is thus never cancelled, it is noted null. It can be declared null owing to lack of assent, immaturity, because of a prevention, but also for not-consumption.

The other Christian confessions generally are not also opposed to the divorce, even if the orthodoxe position is very close to that of the catholic confession.

Islam

Islam knows the repudiation of the women by the men but also, if the requirements are filled, the divorce required by the femme.
The Mariage in the Moslem tradition is not more than the divorce seen like the rupture of a sacrament, but the marriage is seen there like a contract concluded between two agreeing people. For the Sunnite S contairement with the Chiite S which them practice the Mut `has, this contract must necessarily have like objective, at the time of its conclusion, to last in an indefinite way. The divorce, if it is a possible thing, should occur only as a last resort. So that a divorce is permanent it is enough to repudiate his wife (publicly for the Shiite S, three times for the Sunnite S). The tradition accepts that a man who divorces his wife can the reépouser 3 times if he repudiates it only once each time (its intention alone counts). With the third repudiation, it cannot any more the réépouser except if it remarie with another (with which it must consume the marriage) and which it divorces it. The divorce for the temporary marriages is final and single.

The men as the women have the possibility of divorcing in Islam. However, only the husband can use the formula of the divorce.

Divorce by Talâqq

The rules for Talâqq vary among different the Madhhab. The Shiite S and Sunnite S do not observe indeed the same rules. However the step is the same one, it is the husband who with the responsibility of pronounce the formulas.

It should be added to that the husband must pay the Douaire with the woman with whom it Marie (that has nothing to do with the Dot that in certain companies of passed and today, the father of the girl must pour with that which Marie with her daughter or must give to the couple). However, in the Arab countries, this douaire is high, enough high to dissuade the husband to repudiate his wife for a futile reason; it is besides one of the reasons for which it was instituted. In the event of abusive use, by the husband, of the right of divorce by the formula, the woman thus divorced can ask for the payment of a compensatory pension.

The term “Répudiation” does not have an equivalent in the Moslem tradition, because the word Talâq , which wants to say separation between the two husbands, requires the presence of the two parts in front of the judge who orders this divorce after the families of the grooms very undertook in order to reconcile them. Talâq is thus regarded as an ultimate recourse. Talâq imposes that one of the two members of the couple calls upon serious arguments which can justify a separation. Islam constrained step two husbands to remain plain all life, if this union is not viable any more.

This practice is banished many Moslem countries like the Turkey, the Tunisia the Algérie, the Iraq, the Iran, the Indonesia, the Pakistan, the Bangladesh then qui' it is still allowed in India.

The cancellation of the marriage

The cancellation of the marriage is recognized by Islam in the event of not-consumption. Still today, it happens that not-consumption must be justified. In Algeria, the woman must prove that it was desirable and thus her efforts so that the consumption of the marriage occurs. The cancellation of the marriage is still used in certain religious countries because it makes it possible the woman to break the bond of the marriage without losing its Dot.

Forms of divorce

If the woman cannot use the formula of the “talâq”, it however has the recourse to one of the three following possibilities:

It can use the formula of " Talâq" in one of the following situations:

- the " Tamliq" when it has the right to repudiate (this right can be consigned in the matrimonial contract or another contract);

- the " Takyiree" or right of option, when the husband does not want to divorce but entrusts to him the option to maintain or put an end to their married life;

- the " Tafwide" or the delegation. it is a procuration orally given or written by the husband with his wife to formulate Talâq.

Is it returns to him the Douaire (mahr) , that it had given him at the time of the marriage, and both put an end in their marital state;

Is it carries felt sorry for near the judge for a certain number of objections, and judges it, after examination of the file, pronounces the divorce.

In this last case, the husband cannot to it be opposed nor to appeal if it is recognized that it made wrong to his wife (Aggravated assault, abandonment of the hearth by the husband, refusal to provide the financial needs of the wife, sexual impotence, presence in the husband of a pushing back disease, etc)

One could indeed have supposed that husband and woman have recourse to the judgment of a court to be able to divorce. And in fact in Islam it is cases where the husband has, him also, recourse to the judge so that this one pronounces the divorce.

If Islam envisaged the divorce, it is because he intends to take account of the human nature: it can happen that the two people having founded a hearth appear, at the end of some time of common life, incompetents to live together. The possibility of divorcing is then regarded as the least of two evils.

On the other hand, there exists on another side the divorce become necessary (even morally): it is that to which one has recourse when the couple do not mean themselves any more and that the commission of reconciliation envisaged by Coran recommends separation.

Indeed, the Coran recommends that even in the event of serious and prolonged disagreement, one has recourse not directly to the formula of the divorce but at a commission which will try the reconciliation.

It acts with this intention that the judge indicates a commission made up of a person of the family of the woman and another of the family of the husband. This commission will aim to try the reconciliation between the two husbands: if it appears to them that this one is impossible or vain, they can pronounce the divorce.

The judge can name two people or only one, it can name people connected or not with the husbands, the named people must on the matter know about the rules of Islam.

A divorce is permanent only after three repudiations. Therefore, after having divorced, not only the two ex-husbands can remake their life each one on his side (by marrying each one with which it wants), but they can also, if they wish it, become again husband by contracting a new marriage together.

However, this rule of being able refonder the same hearth applies only when one or two divorces was marked. Starting from the third divorce pronounced between two husbands, these two precise ex-husbands cannot contract marriage any more together, except if the ex-wife had remariée herself with another man and had then divorced him also: at this time, it will be able remarier with that which was in the past her husband.

Even in the event of need for the recourse to the divorce, one should thus give one divorce: it is interdict to pronounce the three divorces of a blow. This is explained by the fact why only one marked divorce keeps open the possibility for these two ex-husbands of remarier. On the other hand, to pronounce of a blow the three divorces makes impossible this wisdom - except after remarriage and divorce, which is very little probable -, that is prohibited.

Divorce and sociology

If the statistics are not always precise, it is estimated, in France, that a marriage on three ends in a divorce, the proportion tending to approach one on two for the big cities

The Social sciences, whose Sociology, are interested in the phenomenon of the divorce. The sociologists will try to include/understand and explain the social causes of the divorce like locating this phenomenon in time and the space which it occupies. For example, they will be interested in the rise of the rate of divorce in the Western companies since the years 1960 and will try to include/understand why this phenomenon underwent a rise if marked, and why in such culture given. They will also seek to identify determining factors, in order to explain the phenomenon of the divorce.

Famous divorces

1809 : Napoleon i and Joséphine de Beauharnais
1989: Andréas Papandréou and Margaret Papandréou
1990: the president Argentin Carlos Menem and Zulema Yoma of Menem
1996: the South African president Nelson Mandela and Winnie Mandela
2007: Nicolas Sarkozy and Cécilia Sarkozy

References

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