Divorce Court Research Articles

‘A perfect farce’: the practice of claiming damages for adultery in the late-Victorian divorce court

ABSTRACT For nearly three hundred years it was a British husband’s right to claim damages for the trespass of his wife. By the mid-nineteenth century the practice was considered morally questionable, yet still it entered the statute books under the Matrimonial Causes Act 1857 where it remained something of an embarrassment until 1969. Very few studies have considered what this meant in practice. This article offers a comprehensive examination of compensatory awards by analysing data from a sample of petitions filed with the divorce court between 1881 and 1900. It asks, who were the men who put a pecuniary value on their wife’s ‘ruin’ and considers why damages were more pertinent to middle-class petitioners than those above or beneath them. It explores the practical implications of how damages were calculated and applied and suggests reasons why juries frequently awarded lower sums than claimed. Finally, it considers the moral implications of a system that treated wives as chattel and continued to do so well into the twentieth century.

Brave New World? Care and Custody of Children at the Court for Divorce and Matrimonial Causes in Mid-Victorian England

Abstract This article considers the accessibility and impact of the mid-Victorian divorce court’s new custody powers, by tracing the children of those who petitioned the court within the first two years of the court’s establishment and contrasting this with court pleadings and orders. Focusing on the care of children by location as revealed by the census and other sources, this study then deals in more detail with individual cases to illustrate the experience of parties in divorce court processes for child custody. This study generates an original data set to find that, whereas the majority of resident female petitioners sought a custody order in the petition, only a minority ended up with an order. Three broad issues are addressed: the gendered nature of rights in respect of children on marital breakdown, the implications of legal remedies being accessed through male gatekeepers, and the exercise of discretion at the newly opened divorce court.

Dynamics of Couples in Divorce in Court

This research discusses the problems faced by a widow after divorce, including the negative view of their status from society and the changes experienced both personally and in the neighbourhood. The purpose of this study is to understand the cognitive, affective, and conative dynamics experienced by divorced couples. This study used a descriptive qualitative method and involved one husband informant and one wife informant. Data were collected through interviews, then analysed using data reduction, data presentation, and conclusion drawing techniques. The results showed that there were psychological changes in couples who experienced divorce in cognitive, affective, and conative aspects. In the cognitive aspect, changes can be seen from the disharmony of household relationships and the desire for a better life after divorce. Meanwhile, in the affective aspect, there are differences between couples who feel sad and happy in making the decision to divorce. However, the decision to divorce is not easy for them.

LEGAL GYMNASTICS: AN EVALUATION OF THE JUDGMENT IN Z v Z [2022] ZASCA 113

The South African Supreme Court of Appeal (SCA) recently considered an appeal (Z v Z [2022] ZASCA 113) against an order of the Eastern Cape Division of the High Court, Port Elizabeth (ECD). The ECD upheld a special plea and confirmed that a parent lacks locus standi in judicio to claim maintenance from the other parent, for and on behalf of adult dependent children, during divorce proceedings (Z v Z supra par 2). The SCA, however, reasoned that the obligations of a divorce court set out in section 6 of the Divorce Act (70 of 1970) (the Act) by implication made provision for a parent to apply on behalf of an adult child for maintenance. The SCA, accordingly, dismissed the special plea and the appeal was upheld with costs.The SCA judgment is noteworthy as several previous High Court judgments found that adult dependent children must pursue claims for maintenance against their parents in their own name. Interestingly, most courts of first instance have reasoned that adult dependent children should be before the court when applying for maintenance. However, the SCA did not share the same position. In its reasoning, the SCA emphasised convenience and stressed that all the matters relevant to the divorce, including maintenance of dependent children, should and could be disposed of at the hearing of the main action. The SCA confirmed that both parents have a duty to maintain their dependent children and that this duty, at times, persists after the child attains majority age. The SCA further commented that children, including adult children, should be removed from the conflict between the divorcing parents as far as possible. The SCA, therefore, held that the requirements of section 6 of the Act provide the basis for admitting a claim by a parent for maintenance for and on behalf of an adult dependent child. It is submitted that the reasoning of the SCA and the precedent created could undermine the ability of a court to make an order of parental support for adult dependent children, and may ultimately result in outcomes that do not effectively provide for the needs of the adult child. This case note evaluates the facts of the matter together with the reasoning of the High Court and the SCA. The previous judgments on parents representing their adult dependent children during divorce proceedings are then evaluated. The specific intent of the case note is to establish whether section 6 of the Act confers locus standi on a parent to apply for maintenance for and on behalf of their adult dependent children during divorce proceedings. The benefits and challenges of conferring locus standi on parents of adult children are also considered. The last relevant issue that is evaluated, and on which the courts did not have to adjudicate, relates to the termination of a parent’s duty to provide financial support for their adult children. This case note ultimately aims to establish what obligations and powers are inherent in the application of section 6 of the Act and what procedures may, therefore, be employed by a Divorce Court when an adult dependent child applies for parental support.

Utilising trusts in Swiss divorces?

Abstract What do trusts and divorces have in common? They are expensive. One might thus wonder why the two should be combined. Admittedly, establishing a trust is not a realistic option for most divorcing couples. For some (wealthy) spouses, however, a trust could provide a number of economic and other benefits worth considering. This article points out the benefits of using a trust in the context of a Swiss divorce and sets out the framework for its permissibility. For this, we assess the potential and constraints of Swiss marital and divorce agreements as well as the scope of review exercised by Swiss divorce courts.

Perkembangan Institusi Islam di Sarawak Sebelum Pembentukan Malaysia

From the rule of the Sultanate of Brunei to the colonialism of James Brooke in Sarawak shown the political and geographical landscape completely change. Historically James Brooke starts to intervene in Sarawak affairs. He starts conquered from Tanjung Datu to Batang Samarahan turned into a huge territory due to the requisition of James Brooke to hand over some areas under Brunei from Simanggang to the border region of Brunei. Brooke’s positioning until the Second World War caused the entire administration invaded by western colonialism in Sarawak. Based on original agreement between Brunei and Brooke Families, the later was to control the administration and economic development and must not interfere with the customs of the Malays and Islam, but in the end, colonialism is almost absolute. This includes Islamic law in the era of James Brooke which introduced Native Mohammedan Probate and Divorce Court. Thus, this article objectives to describe the development from the aspect of Islamic institutions and the sociology of the Islamic community in Sarawak. This article applies the historical method of Kuntowijoyo namely heuristics (collection of historical material), internal and external criticism, historical interpretation, and historiography. This article shows that the pressure of the British government after Sarawak was handed over by Vyner Brooke to the British did not tarnish the Islamic institutions that were established in Brooke’s time and after. However, the socio-Islamic society is influenced by western culture.

Book Review: Marriage Unbound: State Law, Power, and Inequality in Contemporary China by Ke Li and Decoupling: Gender Injustice in China’s Divorce Courts by Ethan Michelson

Book Review: <i>Marriage Unbound: State Law, Power, and Inequality in Contemporary China</i> by Ke Li and <i>Decoupling: Gender Injustice in China’s Divorce Courts</i> by Ethan Michelson

The influence of romantic dominance on attitudes toward divorce of selected college students in the Philippines

In 2022, Philippine Senator Robin Padilla filed a bill to legalize divorce in the country. The bill lists 11 grounds for the filing of divorce in court. The objective of this study was to explore the degree of acceptability of these proposed divorce grounds from the viewpoint of selected college students. Based on the bill, the Philippine Divorce Attitude Questionnaire (PDAQ), a researcher-made, 5-point Likert scale questionnaire was created. In addition, the Dominance Scale was used to determine the respondents’ attitudes toward dominating a romantic relationship. Furthermore, the study attempted to determine whether a connection exists between the respondents’ PDAQ scores and their dominance scale scores. 157 college students from a school in Cainta, Rizal, Philippines volunteered to take part in this study. The PDAQ yielded total weighted means that had verbal interpretations of agree, irrespective of sex or presence of a romantic partner. Based on the PDAQ scores, in general the respondents agree to the divorce grounds laid down by the aforementioned senate bill. With respect to dominance, the respondents’ total weighted mean for the subscale of authority found that the respondents were non-authoritative. As for the dominance subscale of disparagement, the respondents’ total weighted means found that the they were non-disparaging. However, for the dominance subscale of restrictiveness, the respondents’ total weighted means showed that they were restrictive irrespective of sex or presence of a romantic partner. Furthermore, an extremely statistically significant difference between the responses of those with and without a romantic partner with respect to Dominance Disparagement subscale scores was established. Pearson r was computed between the respondents’ PDAQ scores and their dominance subscale scores in authority, restrictiveness and disparagement. A significant moderate inverse relationship was found between the respondents’ PDAQ and Dominance Authority subscale scores. This implies that for the respondents of this study, as their Dominance Authority subscale scores increase, their PDAQ scores moderately decrease and vice versa. In addition, a significant low inverse relationship between the respondents’ PDAQ and their Dominance Disparagement subscale scores was also established. In turn, this implies that for the respondents of this study, as their Dominance Disparagement subscale scores increase, their PDAQ scores slightly decrease and vice versa.

‘An Exceedingly Painful Case’: The Aftermath of Divorce in Mid-Nineteenth Century England and Wales

Research into the Divorce and Matrimonial Causes Act 1857 has revealed surprising and unexpected findings, particularly surrounding the accessibility of the Divorce Courts, and the relatively slow uptake of English and Welsh couples who sought to legally dissolve their unions. The aftermath of this process – when the dust of the court room had settled and the litigation was (one way or another) complete – has received significantly less attention, with our knowledge of post-divorce life limited predominately to brief discussion of remarriage statistics. This article uses divorce petitions, census returns, probate records, newspaper reports, and parish records, to reconstruct five case studies to explore what happened to couples after their divorce petitions had been heard and a judgment made. Although in some cases divorce could represent a distinct end point in a relationship and the start of a new stage of the lifecycle, for others an appearance before the Divorce Court was a further step in a longer series of litigation, as well as an event that continued to exert influence on their socio-economic opportunities and prospects. These case studies reveal important new information about how individual understanding of the law influenced the decision-making processes of the men and women whose marriages had ended and indicate the wealth of research waiting to be carried out.

Problematic issues of divorce in court

The article examines the problematic issues of judicial divorce. Conflicting, contradictory, unresolved issues of legislative regulation of this procedure are identified, which were established on the basis of the analysis of court practice, in orderto improve the mechanism of divorce. Collisions of legal regulation of dissolution of marriage in court procedure are identified. The institution of marital reconciliation and its consequences for the divorce process between spouses are analyzed. Yes, it hasbeen determined that in practice, divorce in legal proceedings is very often used as a «circumvention» of divorce in the order of separate proceedings on the joint application of the spouses (due to clauses «d» and «o» of clause 3 of Article 3 of the Decree of the CMU «On State Duty» dated January 21, 1993), and the reconciliation procedure as prolonging the divorce process. The analysis of court practice proved that this mechanism does not contribute to the continuation of marital and family relations. Itwas concluded that, on the one hand, the legislator is interested in speedy consideration of such socially significant categories of cases as divorce, on the other hand, there are still gaps in the legislation that allow this process to be delayed. It is alsodetermined that Article 4 109 of the Family Code of Ukraine is conflicting, and the analysis of the norms of the Code of Civil Procedure, which establish and determine the procedural order of consideration of cases in courts, made it possible to conclude that the Code of Criminal Procedure does not establish special (shortened) terms for consideration of certain categories of cases in court, because in the aggregate, the terms consideration of the merits of the case in accordance with the legislation cannot guarantee a person who has applied to the court for the protection of his violated, disputed or unrecognized right of prompt resolution of the problem and contradict the norms of family legislation. The authors provided suggestions forimproving the national legislation and eliminating the above-mentioned conflicting norms.Based on the results of the analysis, the authors came to the following conclusions: 1) in order to encourage spouses to apply to a notary public with a statement on the conclusion of an agreement on alimony for a child, it is advisable to introducean exemption for parents from paying state duty when certifying such agreements by analogy with paragraph 3, Part 1, Article 5 of the Law on Court Fees, 2) by analyzing the judicial practice regarding granting spouses a period for reconciliation, it canbe concluded that, unfortunately, the institution of reconciliation does not lead to the expected results of preserving family relations, but contributes to prolonging divorce proceedings. Therefore, we propose to exclude Article 111 of the Family Code ofUkraine and Part 7 of Art. 240 of the Civil Procedure Code of Ukraine, 3) in order to eliminate the conflict between civil and family legislation, we propose to set out Part 4 of Article 109 of the Civil Procedure Code of Ukraine in the following wording: «the court considers the case of divorce within the time limits established by the Civil Procedure Code of Ukraine...».

FROM BANTU DIVORCE COURTS TO DIVORCE COURTS: A SUCCESSFUL EXERCISE IN LEGAL TRANSFORMATION

In order to establish Family Courts in South Africa, the Department of Justice and Constitutional Development established a Family Court Task Team in 1997. During September 1998 a Family Court Pilot Project was launched by the Department of Justice and Constitutional Development to serve as test sites for possible nation-wide implementation. This project flowed from the “Justice Vision2000” national strategy. The aim of the project was to make justice accessible to families in urban, rural and even isolated communities, by providing co-ordinated and integrated family services to all parties involved in family law disputes under one roof. The establishment of Family Courts was motivated by the following aims: to afford wide and specialized protection and help to the family as a fundamental unit in society, to bring about access to justice for all in family disputes, and to improve the quality andeffectiveness of service delivery in this area (Chaskalson Family Courts 4). With the formation of the Family Court Pilot Project, the vision of the project was defined as to establish a court structure which has its own identity, is accessible to the community, sensitive to the needs of the community, operating according to simple procedures, offering counselling and mediation support services and providing a quality service in a pleasant and user-friendly environment. With its formation, it was envisaged that each Family Court Centre will have two components, the support service and the litigation component. The family support service provides support to the family and encompasses alternative ways to resolve disputes without parties appearing in court, such as counseling and family group conferencing. The litigation component offers services ranging from maintenance, domestic violence, Children’s Court, deceased estates, Family Advocate services, divorces and a help desk. The Divorce Courts form an integral and important part of the FamilyCourt Pilot Project. These courts were originally instituted in 1929 to entertain divorce actions between black people. These so-called Black Divorce Courts were established under section 10 of the Black Administration Act (38 of 1927) and the Black Administration Amendment Act (9 of 1929).

Women and Parliamentary Divorce in England. From Wife-Sale to the Divorce Act of 1857

The essay is a study of divorce in England in the Modern Period, with particular reference to parliamentary divorce, established since the end of the 17th century. If husbands could get rid of undesired wives through wife-selling, private separation deeds, or separation a mensa et thoro awarded by the ecclesiastical courts, they were not permitted to remarry unless they got a private bill from Parliament. Parliament acted as a real court of justice and, being the procedure extremely long and expensive, parliamentary divorce was in fact a privilege reserved to members of the aristocracy in search of a heir. Only in 1857 the Divorce Act legalized divorce in the country through the establishment of the Court for Divorce and Matrimonial Causes.

Petitions to the Court for Divorce and Matrimonial Causes: A New Methodological Approach to the History of Divorce, 1857–1923

ABSTRACT Although the subject of divorce and the development of divorce legislation in nineteenth-century England and Wales have received some academic attention, much work remains to be done. Existing studies have examined either a small number of cases from a limited period of the newly formed Court for Divorce and Matrimonial Causes’ history; answered a specific question over a longer period; or conducted detailed micro-studies of individual and high-profile cases. None have examined the surviving petitions made to the court (held at The National Archives under J 77) holistically over an extended period. This article seeks to revive the field by suggesting a new interdisciplinary methodological approach that will combine historical and legal studies with digital humanities to offer the first panoptic view of J 77 petitions. Far from being dry legal documents, this article argues that they hold a wealth of rich detail about petitioners, respondents, co-respondents, witnesses, children, solicitors, barristers, clerks, and judges, and stand at an exciting intersection of several fields of enquiry. Adopting such an approach will generate important new insights about gender, class, property ownership, intimacy, religion, childhood, and sexuality in nineteenth and early twentieth century England and Wales.

PROSES PENGAJUAN GUGATAN CERAI PADA PENGADILAN AGAMA

Marriage is an inner and outer bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family based on God's commandments. However, in practice, in carrying out domestic life, small and large fights often occur, which results in disturbed happiness in the household, even divorce. Other reasons for divorce are infidelity, adultery, irreconcilable quarrels, persecution, not providing a living, jealousy, and in the KHI the reasons for divorce are added, the husband violates taklik talak and changes religion or apostasy. Based on Article 39 Paragraph (1) of the Marriage Law, divorce can only be carried out before a court session, after the court has failed to reconcile the husband and wife. However, many people, such as people in Suka Beras Village, Perbaungan District, Serdang Bedagai Regency, divorce only by saying the words divorce or writing it on stamped paper, not filing for divorce to the court, especially the religious court that applies to people of Islam. This is because many people do not understand the process of filing a divorce suit to the religious court, and assume divorce in Courts will require expensive fees, long administrative procedures, difficult trial procedures and so on, so the PKM team sees it necessary to carry out PKM in Suka Beras Village, Perbaungan District, Serdang Bedagai Regency, with the title Process for Filing Divorce Claims in Court Religion. The method of activity is carried out in the form of Legal Counseling. The results of this PKM are that the Suka Beras Village community understands the process of filing a divorce suit to the religious court, and the conclusion is that the Suka Beras Village community does not understand the Process for Filing Divorce Lawsuits at the Religious Courts, and does not understand the consequences law arising from divorce, and it is necessary to increase Legal Counseling with the same material.

Divorce Fact Detection Based on Internet User Behavior Using Hybrid Systems with Combination of Apriori Algorithm and K-Means Method

An ideal couple should sustain the family's ark till the end of their life without divorce. This study aims at seeking the association between divorce and internet behavior of searching negative keywords. The study observes four keywords, which are porn, sex, gay, and lesbian. We collected keyword usage data from google trend reports and obtained divorce court figures from the Religion Court of Padang. We used the apriori algorithm to reveal the association between divorce and internet behavior observing individual keyword searches and in groups. We used the K-Means algorithm in classifying negative word searches and divorce trial numbers from a group of existing data. We also investigate the combination of the apriori algorithm and the K-Means method to detect divorce facts and the behavior of internet users. The combined method has been successful in revealing the positive association between divorce facts and the behavior of internet users.

Management of issues relating to marriage, mental illness, and Indian legislation.

Management of issues relating to marriage, mental illness, and Indian legislation.

Regterlike herverdelingsdiskresie vir batedeling by egskeiding beleef ’n heropstanding ondanks grondwetlike bedeling téén arbitrêre ontneming sonder vergoeding

Regterlike herverdelingsdiskresie vir batedeling by egskeiding beleef ’n heropstanding ondanks grondwetlike bedeling téén arbitrêre ontneming sonder vergoeding

Regspraak: Oordrag van onroerende eiendom kragtens ’n egskeidingsbevel tóg ’n besmette vervreemding volgens die Insolvensiewet?

The Insolvency Act defines a disposition for purposes of the act and states that a voidable disposition does not include a disposition in compliance with an order of court. Section 29 of the act defines a voidable preference for this section as a debtor’s disposition of his property made not more than six months before the sequestration of his estate. A sequestration is defined with reference to a sequestration order, which means any order of court whereby an estate is sequestrated and includes a provisional order. In the Mercantile case the marriage of the respondent and his erstwhile wife was dissolved by a divorce order of the divorce court in January 2020. Incorporated into the court order is the settlement of the parties’ respective claims regarding their matrimonial property regime. The parties had been married with a classic antenuptial contract that excluded any community of property, community of profit and loss or any accrual sharing. Notwithstanding the fact that the judgment indicates otherwise, section 7(3) of the Divorce Act could not have applied in the light of the settlement agreement. This section is applicable only in the absence of any agreement between the parties regarding the division of their assets. Only where section 7(3) applies is the court granted a wide discretion to order that such assets, or such part of the assets, of the other party as the court may deem just, must be transferred to the first-mentioned party. The final settlement of the erstwhile couple’s property regime was consequently not as a result of the court’s exercising its statutory discretion but the result of the agreement sanctioned by the court’s order. In accordance with the agreed settlement, the husband was compelled by the court order to transfer a house in Gallo Manor registered in his name as immovable property to the erstwhile wife. This property was unburdened by any registered limited real security right such as a mortgage bond. The transfer was completed in March 2020 when the property was transferred into the woman’s name in accordance with the requirements of the Deeds Registries Act 47 of 1937. Mercantile Bank attained a provisional sequestration order against the respondent in October 2021 and apparently, according to Maier-Frawley J’s judgment, indicated its intention to rely on section 29 of the Insolvency Act to claim the reversal of the transfer of the immovable property as an alleged voidable disposition of a valuable asset from the estate of the respondent as debtor to the detriment of the claimant and other creditors. It is submitted that the six-month limit forms an unsurpassable hurdle and bars the application of section 29 in this matter. In addition, any reliance on eg section 31 of the Insolvency Act that refers to collusive dealings before sequestration without an equivalent six-month time bar will be barred by the explicit definition of a disposition in the act that excludes a disposition in compliance with an order of court. It may be doubted whether it is justified to waste additional costs and the time of the high court in light of the foregoing in this matter. Where the legal position is crystalized the court is left without a contrary discretion.

Peran Ibu Terhadap Pendidikan Anak dalam Novel Layangan Putus Perspektif Pendidikan Islam

The purpose of the study was to analyze the role of mothers in children’s education in the novel Layangan Putus from an Islamic education perspective. In the novel, Mother has five children: Amir, Arya, Alman, Abi, and Ahmad. Ahmad died when he was born to his mother. So child care focuses on their four children. In educating children, mothers experience a change in status from wife to widow. Education for children that were previously carried out with the father, according to the results of the divorce court decision, that custody rests with the mother. Therefore, researchers want to know the role of the mother in educating children from an Islamic education perspective. This type of research is library research. Data collection is done by doing repeated readings and documentation. Analysis of the data used is content and comparative analysis. The results showed that (1) the mother continued to practice her nature as an educator even though she worked as a veterinarian, and (2) the mother was responsible for faith education, moral education, physical education, academic education, mental education, and children’s social education.

APPLICATION OF CONTRA LEGEM IN JUDGE DECISIONS (Critical Study of Iddah Alimony Rights in Divorce Cases)

The subject of this study is based on article 149 letters (b) Compilation of Islamic law which reads: ex-husband must provide maintenance, maskan, and kiswah to ex-wife during the iddah, unless the ex-wife has been granted talaq bain or nusyuz and is not pregnant. There are two barriers for an ex-wife to earn a living during the period of iddah, namely because the wife is divorced ba'in and or because the ex-wife is nusyuz. In general, the wife filed for divorce in court because she could no longer stand her husband's treatment of her. As a result of the law, if the wife who filed for divorce sues the Court, then the panel of judges will issue a divorce. Unless the husband violates the talaq. In the context of the wife falling into the act of nusyuz, generally as a result of the treatment and conduct of the husband towards the wife. If this is returned to the sound of the law then it will be very felt the injustice received by the wife (ex-wife). This study seeks to find the answer from the formulation of the problem "Why is contra legem important for the judge in deciding the case (inconcritoplaintiff) divorce with the decision of talaq ba'in and or proven in court nusyus wife's arbitrary because of the husband treatment of his wife? Materials and data are obtained by methods library research, the nature of the research is normative research. The goal to be achieved is to provide an alternative solution in providing justice and legal protection to women (ex-wives) who do not get iddah alimony because of filing a lawsuit or nusyus with a theory approach contra legem. Positive law in practice is not sufficiently able to accommodate the legal facts revealed in the Court, in another narrative it can be said that positive law always lags behind social reality. So in the legal system in Indonesia, the judge's ijtihad to deviate and or find the law is accommodated by the principle of Contra legemin order to provide justice and benefits to the community seeking justice, the judge needs to do contra legem.Keywords: Contra Legem; Iddah Livelihood; Divorce Lawsuit; Judge's Decision