DIVORCE AROUND THE WORLD PART I

This article is a general overview of divorce laws around the world.

Every nation except the Philippines and the Vatican City allows legal divorce. In the Philippines, while divorce is against public policy and is prohibited by law, the Family Code provides for certain grounds to annul a marriage or declare it as null and void. In Malta, divorce is not part of the legal system. However, by virtue of Article 33 of the Marriage Act (Chap. 255 – Laws of Malta) an interested party may register a foreign divorce at the Annotations Section of the Public Registry, provided that the decision was delivered by the competent court of the country in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen. When such a divorce is registered, the parties are free to remarry.

In practical terms, by legal separation, the spouses although remaining married, their obligation to cohabit seizes. Spouses who intend to separate legally have two options: they may opt for a consensual separation (by agreement of both parties with the approval of the family Court) or for a contentious separation (where the separation is contested between the parties and the Court decides on all issues involved and in particular with regard to the responsibility for the breakdown of the marriage).

Malta is planning to legalize divorce in the year 2010.
Muslim societies

In the Muslim world, legislation concerning divorce varies from country to country. Different Muslim scholars can have slightly differing interpretations of divorce in Islam, (e.g. concerning triple talaq).

No-fault divorce is allowed in Muslim societies, although normally only with the consent of the husband. A wife seeking divorce is normally required to give one of several specific justifications (see below).

If the man seeks divorce or was divorced, he has to cover the expenses of his ex-wife feeding his child and expenses of the child until the child is two years old (that is if the child is under two years old). The child is still the child of the couple despite the divorce.

If it is the wife who seeks divorce, she must go to a court. She must provide evidence of ill treatment, inability to sustain her financially, sexual impotence on the part of the husband, her dislike of his looks, etc. The husband may be given time to fix the problem, but if he fails, the appointed judge will divorce the couple if the couple still wish to be divorced.[2]

See also: Talaq in Conflict of Laws, At-Talaq and Triple talaq.

Brazil

In Brazil, divorce was forbidden until 1977.

Since January 2007[3], Brazilian couples can request a divorce at a notary’s office when there is a consensus; the couples have been separated for more than a year and have no underage or special-needs children. The divorcees need only present their national IDs, marriage certificate and pay a small fee to initiate the process, which is completed in two or three weeks.

Canada

Canada did not have a federal divorce law until 1968. Before that time, the process for getting a divorce varied from province to province. In Newfoundland and Quebec, it was necessary to get a private Act of Parliament in order to end a marriage. Most other provinces incorporated the English Matrimonial Causes Act of 1857 which allowed a husband to get a divorce on the grounds of his wife’s adultery and a wife to get one only if she established that her husband committed any of a list of particular sexual behaviours but not simply adultery. Some provinces had legislation allowing either spouse to get a divorce on the basis of adultery.

The federal Divorce Act of 1968 standardized the law of divorce across Canada and introduced the no-fault concept of permanent marriage breakdown as a ground for divorce as well as fault based grounds including adultery, cruelty and desertion. [4]

In Canada, while civil and political rights are in the jurisdiction of the provinces, the Constitution of Canada specifically made marriage and divorce the realm of the federal government. Essentially this means that Canada’s divorce law is uniform throughout Canada, even in Quebec, that differs from the other provinces in its use of the civil law as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo-Canadian provinces.

The Canada Divorce Act recognizes divorce only on the ground of breakdown of the marriage. Breakdown can only be established if one of three grounds hold: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming.[5] The one-year period of separation starts from the time at least one spouse intends to live separate and apart from the other and acts on it. A couple does not need a court order to be separated, since there is no such thing as a “legal separation” in Canada.[6] A couple can even be considered to be “separated” even if they are living in the same dwelling. Either spouse can apply for a divorce in the province in which either the husband or wife has lived for at least one year.

On September 13, 2004, the Ontario Court of Appeal declared a portion of the Divorce Act also unconstitutional for excluding same-sex marriages, which at the time of the decision were recognized in three provinces and one territory. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce.[7]

England and Wales

A divorce in England and Wales is only possible for marriages of more than one year and when the marriage has irretrievably broken down. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted ‘nisi’, i.e. (unless cause is later shown), before it is made ‘absolute’. Relevant laws are:

* Matrimonial Causes Act 1973, which sets out the basis for divorce (part i) and how the courts deal with financial issues, known as ancillary relief (part ii)
o Cruelty has been made irrelevant. See Gollins v Gollins [1964] A.C. 644
* Family Law Act 1996
* Children Act 1989
* Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991
* Marriage Act 1949
* Marriage Act 1994

Here is a rough outline of the undefended divorce procedure from start to finish:

1. Filing of Divorce Petition & if necessary Statement of Arrangements for the Children
2. Documents issued by Court and posted to the Respondent
3. Respondent returns Acknowledgement of Service to the Court (if he/she does not you will need to consider Bailiff Service, Deemed Service or other options)
4. Petitioner completes Affidavit in Support of Petition and Request for directions
5. A Judge will then consider all the divorce papers and if he/she is satisfied issue a Certificate of Entitlement to a Decree and Section 41 Certificate (confirming he/she is content with arrangements for any children)
6. Decree Nisi is granted
7. Six weeks later the application can be made by the Petitioner for the Decree Absolute.

From beginning to end, if everything goes smoothly and Court permitting, it takes around 6 months.

If there are any outstanding financial issues between the parties, most solicitors would advise resolving these by way of a ‘Clean Break’ Court order prior to obtaining the Decree Absolute.

There is only one ‘ground’ for divorce under English law. That is that the marriage has irretrievably broken down.

There are however five ‘facts’ that may constitute this ground. They are:

1. Adultery
* often now considered the ‘nice’ divorce.
* respondents admitting to adultery will not be penalised financially or otherwise.
2. Unreasonable behaviour
* the petition must contain a series of allegations against the respondent that the Judge considers serious enough that the petitioner cannot be expected to live with the respondent.
3. Two years separation by consent
* both parties must consent
* the parties must have lived separate lives for at least two years prior to the presentation of the petition
* this can occur if the parties live in the same household, but the petitioner would need to make clear in the petition such matters as they ate separately, etc.
4. Two years desertion
5. Five years separation