Divorce

Divorce refers to the dissolution of a marriage, usually through a jurisdiction’s civil court system, although major religious traditions also prescribe procedures for divorce under religious law. The legal tradition and history of divorce dates back to ancient times and varies greatly by place and by era. Cultural and social influences shape how divorce is both practiced and regarded. Divorce also raises moral, gender, financial, and child-rearing issues. Divorce rates have fluctuated throughout modern history; in many Western countries during the second half of the twentieth century, high divorce rates occasionally triggered concern from observers worried about the long-term future of the institution of marriage. By the twenty-first century, divorce rates had begun declining in many Western countries as people cohabitated more often, approached marriage more thoughtfully, married later in life, and married for love as opposed to other obligations.

Brief History

One of the most notable divorces in British history was that of King Henry VIII, who, after the Pope refused to annul his first marriage to Catherine of Aragon, made himself the head of the Church of England and granted himself a divorce in 1552; he then married and later beheaded Anne Boleyn. The new Church of England officially opposed divorce and further restricted annulment requirements.

The earliest divorces in colonial North America are believed to have been in the Colony of Massachusetts Bay, which had a judicial divorce tribunal in 1629 and granted divorces on grounds of adultery, desertion, bigamy, and impotence. Southern colonies attempted to prevent divorce even when divorce legislation existed. After 1776, US divorce law was more permissive, with some states designated as divorce mills (e.g., Indiana, Utah, the Dakotas). Women were considered legal nonentities, which complicated property issues; this was later addressed by The Married Women’s Property Acts in 1848. By the mid-twentieth century, courts in many states began to overhaul divorce procedures. Law firms specializing in divorce appeared in large cities.

Between California in 1969 and New York in 2010, all fifty US states recognized no-fault divorce provisions, which, depending on the state, allow divorces between spouses who are incompatible, have irreconcilable differences, or find that the marriage is beyond repair. No-fault divorces do not require spouses to prove that the other spouse had breached their marital contract by committing cruelty, adultery, desertion, or any other wrongdoing. A number of states also enacted pure no-fault divorce laws, which prohibited spouses from filing for fault-divorces. Proponents of no-fault divorce asserted that it allowed more privacy for the divorcing couple, was less adversarial and easier on children, helped them avoid resorting to falsifying the grounds for divorce, and reduced the need to find a state or country that had fewer barriers to filing for divorce. Researchers found that in states where no-fault divorce was an option, there were decreases in domestic violence, husbands murdering wives, and married women dying by suicide. Opponents of the pure no-fault divorce laws argued that it increased divorce rates and domestic violence, and weakened traditional ideals of marriage.

British law changed to allow divorce on the grounds of adultery in 1857. In 1937, the legal grounds expanded to include drunkenness, insanity and desertion. Then in 1969, the Divorce Reform Act allowed couples a no-fault divorce after they had been separated for two years (or five years if only one person wanted a divorce). The 1996 legal case White v. White is notable for changing British divorce laws by upholding the value of a homemaker’s contributions to a couple’s collective wealth as such contributions were previously undervalued when making post-divorce financial settlements.

Overview

The twentieth century saw many countries around the world ease access to divorce. Several countries did not allow divorce until the late twentieth or early twenty-first centuries, including Italy (1970), Brazil (1977), Spain (1981), Argentina (1987), Ireland (1995—by referendum), Chile (2004) and Malta (2011—by referendum).

Christianity generally discourages divorce, which sometimes influences governments in Christian-majority countries to restrict the practice. In particular, predominantly Roman Catholic countries are often influenced by church doctrine, which does not allow divorce but only church sanctioned marriage annulments. In Ireland, for example, a bare majority chose to legalize divorce in 1995 (with new legislation in 1996). Advocates argued that legal divorce was healthier for the family and more honest than an annulment, whereby the church declares the marriage to have not existed. Voters against civil divorce (49%) argued that individuals could have their marriages dissolved without their consent and that fathers would abandon families. In Ireland a spouse may apply for a judicial separation after one year of proven marriage breakdown with another three years to proceed to divorce. In the Philippines, divorce remained illegal in 2024, except for the nation’s Muslim citizens (11%) or for citizens who divorce while abroad. The Philippines’ Indigenous peoples had divorce before Catholicism arrived in 1521; the country also briefly permitted divorce during US and Japanese colonial occupations. Filipinos can seek one of the on average 10,000 civil annulments granted per year on limited grounds (e.g., bigamy, psychological incapacitation), though seeking a civil annulment is costly.

Divorce predates Islam, and Islamic divorce was in some ways historically more favorable to women (e.g., not dividing a woman’s property) though it also typically prohibits women remarrying for three months. The divorce procedure depends on the timing, reasons, one’s school of thought (e.g., Hanafi, Hanbali, Maliki, and/or Shafi), and whether one is Sunni or Shiite. People seeking divorce must have reached maturity, have clear intentions, be mentally unimpaired, and be free from external pressure. The validity of the marriage contract, which can specify divorce procedure, may arise in an Islamic divorce context. Some US divorce courts have upheld such contracts when enacted legally and with informed consent. While divorce is permitted in Islam, it is not encouraged and is viewed as a last result with many religious Muslims seeking counseling or other interventions to avoid divorce.

In Judaism, divorce is documented in the Bible, specifically in Deuteronomy 24: 1–2. A Jewish bill of divorce is given from the husband to the wife, though both partners must consent, and is called a get. It is required for remarriage under religious law. Get is an Aramaic word and the tradition is to write the document in Aramaic in twelve lines (twelve is the numerical value of the Hebrew word for get). The document must be written from the perspective of the husband, who seeks to sever all ties, written specifically for the husband and wife who are using the document, and written and delivered from the husband to the wife in front of a beth din (a rabbinical court consisting of three rabbis) and two kosher witnesses who sign the get under the twelfth line. The couple must be sane and sober at the time of the divorce. The beth din will give both parties a certificate confirming their new marital status under Jewish law. It is seen as a mitzvah (moral deed) to remarry a divorced spouse under Jewish law.

The United States saw a spike in divorce rates in the late 1970s and early 1980s; this came amid several societal trends, including the women's liberation movement and easier access to divorce in many states. However, the twentieth century saw a gradual decline in divorce rates; between 1980 and 2007, divorce rates fell from 22.6 divorces per 1,000 marriages to 17.5 per 1,000. About 70 percent of marriages that began in the 1990s reached their fifteenth anniversary, up from about 65 percent of those that began in the previous two decades. Experts explained this decline in US divorce rates by noting that fewer people are marrying, instead opting to cohabitate, and that those who do marry do so later in life and for love. Experts also note that people have more access to birth control and are more accepted as single parents in US society, which leads to less pressure to enter into marriage. Divorce rates continued to decline throughout the 2010s; according to the US Census Bureau, the divorce rate reached a fifty-year low in 2019, at 14.9 divorces per 1,000 married individuals.

Despite legal and social reform, barriers to divorce remain for many communities. Data reflects that women and the working class, both in the United States and internationally, face more of the social and economic challenges of divorce. In many religious communities, divorce remains strongly discouraged. In the mid-2020s, some conservatives, including right-wing Christian nationalists, in the United States and Europe worked to overturn no-fault divorce laws. Senator J.D. Vance, the Republican vice-presidential candidate in 2024, called no-fault divorce "one of the great tricks that I think the sexual revolution pulled on the American populace," according to Alison Lefkovitz for Time magazine.

Bibliography

"A Brief History of Divorce: From Henry VIII to White v White." The Guardian, 18 Sept. 2009, www.theguardian.com/lifeandstyle/2009/sep/19/divorce-law-history. Accessed 30 Aug. 2022.

Foreman, Amanda. "The Heartbreaking History of Divorce." Smithsonian Magazine, Feb. 2014, www.smithsonianmag.com/history/heartbreaking-history-of-divorce-180949439/. Accessed 24 Sept. 2024.

Hardy, James. "The History of Divorce Law in the USA." History Cooperative, 21 June 2022, historycooperative.org/the-history-of-divorce-law-in-the-usa/. Accessed 24 Sept. 2024.

Holmquist, Kate. "Divorce Irish Style." The Irish Times, 17 Jan. 2015, www.irishtimes.com/life-and-style/divorce-irish-style-1.2068656. Accessed 24 Sept. 2024.

Holohan, Meghan. "Divorce Rates Are Lower, but So Are the Number of People Getting Married." Today, 3 Dec. 2014, www.today.com/health/divorce-rates-are-lower-so-are-marriage-rates-1D80332291. Accessed 24 Sept. 2024.

Hundley, Tom, and Santos, Ana P. "The Last Country in the World Where Divorce is Illegal." Foreign Policy, 19 Jan. 2015, foreignpolicy.com/2015/01/19/the-last-country-in-the-world-where-divorce-is-illegal-philippines-catholic-church/. Accessed 24 Sept. 2024.

Jaafar-Mohammad, Imani, and Charlie Lehmann. "Women’s Rights in Islam Regarding Marriage and Divorce." Journal of Law and Practice, vol. 4, article 3, 2011. Mitchell Hamline School of Law, open.mitchellhamline.edu/lawandpractice/vol4/iss1/3. Accessed 24 Sept. 2024.

"Jewish Divorce Basics: What Is a 'Get'?" Chabad.org, Chabad-Lubavitch Media Center, 1993–2024, www.chabad.org/library/article‗cdo/aid/557906/jewish/Jewish-Divorce-Basics-What-Is-a-Get.htm. Accessed 24 Sept. 2024.

Lefkovitz, Alison. "The Right Aims to Turn Back the Clock on American Divorce Law." Time, 23 July 2024, time.com/7000900/project-2025-divorce-law/. Accessed 24 Sept. 2024.

Miller, Claire Cain. "The Divorce Surge Is Over, but the Myth Lives On." The New York Times, 2 Dec. 2014, www.nytimes.com/2014/12/02/upshot/the-divorce-surge-is-over-but-the-myth-lives-on.html. Accessed 30 Aug. 2022.

"No-Fault Divorce." Cornell Law School Legal Information Institute, Sept. 2020, www.law.cornell.edu/wex/no-fault‗divorce. Accessed 24 Sept. 2024.

Wang, Wendy. "The U.S. Divorce Rate Has Hit a 50-Year Low." Institute for Family Studies, 10 Nov. 2020, ifstudies.org/blog/the-us-divorce-rate-has-hit-a-50-year-low. Accessed 24 Sept. 2024.

Willingham, A.J. "What Is No-Fault Divorce, and Why Do Some Conservatives Want to Get Rid of It?" CNN, 27 Nov. 2023, www.cnn.com/2023/11/27/us/no-fault-divorce-explained-history-wellness-cec/index.html. Accessed 24 Sept. 2024.