Grounds For Divorce Research Articles

Worshiping the Black Sun

Worshiping the Black Sun

Between Choice and Security: Irretrievable Breakdown of Marriage in India

The Upper House of the Indian Parliament has recently approved irretrievable breakdown of marriage as a ground for divorce under the Hindu and secular marriage laws. While the liberalization of divorce upholds individual choice, it has adverse consequences upon women in a society where marriage is the primary source of their economic security. This paper argues that the Bill does not adequately protect the economic interests of women upon divorce. It fails to recognize marriage as an economic partnership, but characterizes the wife as a ‘dependant’ of the husband, worthy of only discretionary ‘compensation’. The paper consists of three parts. The first part relates the four decade long debate on no-fault divorce in India and compares it to the models in California and the UK. It is found out that the discourse underlying the debate is founded on two contradictory premises: first, that a marriage is a voluntary union of two equally autonomous individuals. This is opposed to social realities in India, where marriage is not a voluntary union, and the autonomy of wives is greatly curbed. Second, that the ‘autonomous’ wives are still punished for abdicating on ‘wifely’ duties within the home, and viewed as ‘unequal dependents’ whose independent economic contribution to the family is ignored. The debate also neglects the compelling empirical evidence from other jurisdictions, narrating the drastic fall in economicstatus of wives exacerbated by no-fault divorce. The second part narrates the genderblind jurisprudence of the Supreme Court and High Courts which granted no-fault divorce without any legislative backing or any financial orders for the security of wives, thereby converting the debate on no-fault divorce to one solely on choice, and not on the security of wives. In the third part, the Marriage Laws (Amendment) Bill, 2013, which adopts the model of unrestrained judicial discretion to divide property between spouses, is specifically critiqued. It draws from the studies of Kirti Singh and Jaya Sagade to show that discretion in matrimonial litigation is normally exercised adverse to the interests of women. It concludes by stating that the interests of the Bill to uphold individual choice, and symbolically recognize marriage as a union of equals, would have been better served through a community of property regime, with equal division of marital property.

Should divorce be easier or harder?

Many countries have enacted legislation over the past few decades making divorce easier. Some countries have legalized divorce where it had previously been banned, and many have eased the conditions required for a divorce, such as allowing unilateral divorce (both spouses do not have to agree on the divorce). Divorce laws can regulate the grounds for divorce, division of property, child custody, and child support or maintenance payments. Reforms can have a range of social effects beyond increasing the divorce rate. They can influence female labor supply, marriage and fertility rates, child well-being, household saving, and even domestic violence and crime.

Toward a Culturally Cliterate Family Law

Sexual desire and sexual activity long have played central roles in family law, rationalizing its rules, informing its policies, and animating any number of calls for reform. Since the 1970s, gender equality has also become a salient value in family law - purporting to correct legally imposed double standards of the past. Yet, despite the conceptual centrality of sexual desire and sexual activity, family law says nothing explicit about sexual pleasure. And despite the salience of gender equality in contemporary family law, the field remains preoccupied with performances that produce heterosexual men's orgasms while ignoring or rejecting women's interest in orgasmic pleasure. As a result, family law today is marked by fundamental omissions and inconsistencies.This paper attempts to begin to fill the gap and to explore the incongruities. It builds on Susan E. Stiritz's Cultural Cliteracy: Exposing the Contexts of Women's Not Coming (published as a companion piece) and examines the relevance of Stiritz's analysis for family law. According to Stiritz, '[c]ultural cliteracy' denotes what an adequately educated person should know about the clitoris, which is that it is a culturally despised body part because it is an obdurate reminder of women's independence and power and supports women's liberation. Stiritz tracks the role of the and women's sexual pleasure through history, compares past and contemporary anatomical understandings of the clitoris, and then demonstrates through empirical studies, based on courses she has taught, how cultural cliteracy can empower women and bring new insights to the reading of women's texts. She calls for the integration of adequate understandings of the clitoris into a variety of different discourses, including law.In response, this paper focuses on family law as a promising site for integrating cultural cliteracy into legal discourse. Part I introduces the project and its challenges. Part II explores the central role of sex in family law, with emphasis on how family law seeks to channel sexual desire into monogamous marriage and how this effort to manage sexual activity plays out, given the pervasive silence about women's sexual pleasure. This analysis, in turn, exposes significant inconsistencies, challenging the coherence of family law’s own stated policies, including its simultaneous preference for monogamous marriage, acceptance of no-fault divorce, and commitment to gender equality. Part III turns to contrasting ways to make family law more culturally cliterate, specifically, allowing individuals to learn what they can from popular culture versus undertaking affirmative government efforts to promote such knowledge, through educational programs. Part III next looks beyond educational programs to suggest how respect for women's sexual pleasure might prompt rethinking several specific aspects of family law, including divorce grounds; civil actions for sexual harm; and the legal treatment of various supports, interventions, and protections that facilitate sexual pleasure, from sex toys to reproductive autonomy. Part IV concludes with a deeper look at the prospect of a culturally cliterate family law, including the fundamental paradoxes that it might pose.

Μανια as a ground for divorce in Novellae CXI and CXII of Leo the wise

In this work, I shell try to make clear what the term ????? stands for in Leo?s Novella CXI and in Novella CXII. Another important question is change in legal status of mentally ill wife or husband, and its consequences when it comes to division of property during and after divorce.

WIFE BATTERING FROM AN ISLAMIC PERSPECTIVE AND MALAYSIAN LEGAL PROVISIONS

Wife battering is a ground for divorce in the Malaysian Shariah Courts. Some husbands claim that it is their prerogative right to discipline their wives by corporal punishment based on their superficial understanding of the Qur’anic text 4:34 which seems to justify this argument. Some feminist organizations condemn this and allege that if physical assault is lawful in Islam, it leads to a woman’s persecution. This paper examines the issue of wife battering from both Islamic perspective and Malaysian legal provisions. It clarifies the misconception that exists regarding the above issue which is in fact, due to lack of understanding and prejudice against Islamic law.

DIVORCE REFORM AND FAMILY MEDIATION IN ENGLAND: AN OVERVIEW OF THE RELEVANT PROVISIONS OF THE FAMILY LAW ACT, 1996

The article focuses on the divorce reform in England. In 1996, the Family Law Act was passed by the Parliament in England, which is cited as the Family Law Act, 1996. Unfortunately, after it was passed, there were problems concerning its enforcement and the Government decided to postpone the enforcement of some parts of the Act. Generally, the suspension involves the law concerning the ground of divorce and mediation. Although the overall position of the Act remains uncertain, it is significant to examine it because of its strength in upholding the institution of the family. Under the Act, mediation is introduced as it has many advantages such as resolving disputes amicably and it can reduce backlog of cases in the court. It is hoped that the discussion in this article will benefit Malaysia and hopefully we may learn something from the divorce reform that took place in England. In Malaysia, the current Law Reform (Marriage and Divorce) Act 1976 has been enacted since 1976. Perhaps, we may introduce new family legislation governing non-Muslims and include mediation as an alternative means of resolving family disputes.

Child Support System of Australia

Child Support System of Australia

A Case Study of Vishnu Dutt Sharma V. Manju Sharma ((2009) 6 SCC 379): Need for Inclusion of Irretrievable Breakdown of Marriage

The recent judgment rendered by Supreme Court of India in the case of Vishnu Dutt Sharma v. Manju Sharma goes on to show that why there is a need to add irretrievable breakdown of marriage as a ground of divorce. This article will take a note on judgment in detail and make an argument for the inclusion of irretrievable break do of marriage as aground for divorce.At present various grounds of divorce are like desertion, cruelty, adultery recognized under law but not irretrievable breakdown of marriage. Although divorce by mutual consent is granted under sect 13 B of Hindu marriages act, 1955, but there are any problems in it. Mutual consent is not always forthcoming and in many cases, there is much of dilly - dallying by one or the other party. Sometimes anxious couple cannot avail of the remedy of divorce by mutual consent because one of the parties tries to bargain or put in the conditions which may b even against public policy. It has been noticed that where wife is keen to seek divorce her husband tries to harass her or dictate terms on her compelling her at times even to surrender her right to maintenance- paramount right under the law. This unhappy situation can be avoided if the law is changed with change in tune.

Ehebruch, Zanksucht, mangelhafte Haushaltsführung … Scheidungsgründe im Wandel der Zeit

From the Ehegesetz of 1938 to its reform in 1999, adultery, refusal of reproduction and other matrimonial offences counted as grounds for divorce. With the absolute grounds for divorce, i.e. adultery and the refusal of reproduction, there was no further test on their destructive effects, whereas with the remaining ones, which were known as relative grounds, there had to be a test on whether the offence in question had indeed harmed the marital union. Following the reform of 1999 (Eherechtsänderungsgesetz) only severe matrimonial offences remain as relative grounds for divorce. A matrimonial offence may be any given behaviour of a spouse which undermines the founda- tion of their marriage. Thus, not just unethical behaviour such as insults or physical assaults but also too close (though not sexual) contact with a person of the opposite sex may under certain circumstances constitute a ground for divorce. In the past few years the claim of ‘unloving behaviour’, which may refer to a great variety of practices, has increas- ingly been brought forward in courts. For the judges it is getting more and more difficult to establish which of those should be regarded as a severe offence.

Making Divorce Easier: The Role of No-Fault and Unilateral Revisited

The Anglo-Saxon literature regarding the positive relation between 'making divorce easier' and divorce rates has mainly focused on the introduction of no-fault and unilateral divorce grounds. This approach was mimicked to analyse the impact of more lenient divorce legislation in Europe. Using the case study of Belgium we demonstrate that both no-fault and unilateral might not be the ideal proxies for 'making divorce easier' and propose an alternative approach which does manage to capture the time-varying legislative environment.

Felon Collateral-Consequence Policies: An Old Tool with a New Name

“A jar retains for a long time the odour of the liquid it first contained, and loses it only with great difficulty….” (Erasmus, circa 1529) Long held beliefs of racial and ethnic inferiority do not go away over night or over generations. This “jar” is akin to a society in much the same way as the “odour” is to racial sentiment. The effect of the “odour” has been to uphold legislation and policies enacted during the height of racial prejudice in this country long after its effects have dissipated. As generations continue to uphold these methods, either knowingly or unknowingly, they continue to carry out the negative impact of these policies on its intended targets. Consequently, one cannot easily erase the racial and ethnic sentiment that pushed these methods of racial subordination into existence in the first place. Therefore, it is easy to understand why these methods of racial institutional subordination have persisted through time and continue to plague society The collateral consequences of a felony conviction are one such policy area that has existed through time, unaffected by major changes. Wheelock (2005) classifies felon collateral- consequences policies into four distinct categories: civic, service and aid, employment/occupational and other restrictions. Civic restrictions include the loss of voting rights, the right to serve on a jury, and the right to run for public office. Service and aid restrictions “prohibit ex-felons from receiving scholarships and grants, welfare, public housing, military benefits, and any other form of public assistance” (Wheelock 2005, 85). Employment and occupational restrictions consist of any restrictions that ban or disqualify ex-felons from holding certain governmental positions and occupational licenses. Other restrictions can consist of the loss of parental rights and the use of a felony conviction as grounds for divorce. Depending on how collateral consequences are classified a state can have anywhere between one and 140 collateral consequences of a felony conviction , thus documenting the vast amount of variation that exists between states. The goal of this work is to focus on what specific “odours” a state retains related to felon-collateral consequence policies. By examining these factors we can determine how they contribute to the number of felon collateral-consequence policies preserved by each state. The main question this works attempts to answer is, what role does race play in the preservation of felon collateral-consequence policies in today’s society? The findings revealed that out of all the factors examined, race-based factors accounted for state adoption of a higher number of collateral consequences.

Divorce and Remarriage of Orthodox Copts in Egypt: The 2008 State Council Ruling and the Amendment of the 1938 Personal Status Regulations

AbstractIn June 2008, the 1938 Personal Status Regulations for the Coptic Orthodox Church in Egypt were amended to limit the grounds for divorce to adultery and change of religion. This revision followed a ruling of the State Council requiring Pope Shenouda III, the head of the Coptic Orthodox Church, to grant a divorced Orthodox Copt a license to remarry. The amendments ended a long-standing conflict between the Egyptian national courts and the Coptic Orthodox Church regarding the effects of judicial divorce: prior to the revision, thousands of couples divorced before the courts were considered by the Church to be still married. However, by restricting the possibilities for Orthodox Copts to obtain a divorce, the 2008 amendments may lead to an increase in conversions to other religious faiths to escape application of the revised 1938 regulations. In this essay, I analyze the 2008 amendments, the State Council ruling, landmark decisions of the Court of Cassation, comments by legal scholars and articles in newspapers, in an effort to assess the current status of divorce and remarriage among Orthodox Copts in Egypt and the problems generated by the application of conflicts rules between non-Muslim personal status laws in case of inter-religious marriages. At the end of the essay, I mention developments that took place in June 2010 after the release of a new ruling by the State Council.

Communal identity, political Islam and family law: Copts and the debate over the grounds for dissolution of marriage in twentieth-century Egypt

This article follows the debate over the legal grounds for dissolution of marriage within the Egyptian Coptic Orthodox community during the twentieth century, situating this debate in broader religious, political, social and legal perspectives. In 1999, the Coptic Orthodox Patriarch Shenouda III (r. 1971–) promoted a new draft of unified personal status law for Christians, which considerably limited the grounds for dissolution of marriage. He justified the new draft by claiming that the grounds included in the 1938 Coptic Orthodox personal status code were not supported by Christian scriptures and were adopted by Coptic Orthodox lay leaders of the time, who were inspired by Islamic reformist legislation, to suit their desires and lust. I argue that the 1938 Code was not innovative and that it relied on medieval Coptic Orthodox legal treatises. Patriarch Shenouda's restrictive interpretation of the grounds for divorce was motivated by his desire to invigorate communal identity and cohesion in the face of the strengthening of political Islam in Egypt. More generally, this article demonstrates how legal means and policies are used in the contexts of intra-communal and inter-communal struggles.

Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858-1866

This article is a detailed analysis of nearly 10 years of records from the 1858 Divorce and Matrimonial Causes Court in England, the first unified family law court in the common law system. It contains a detailed analysis of the cases filed by nearly 2500 petitioners along a variety of axes, cause of action, grounds for divorce, success of divorce, child custody petitions, alimony petitions, property orders to name a few.

Ziba Mir Hosseini. « When a woman’s hurt becomes an injury: “hardship” as grounds for divorce in Iran ». Hawwa: Journal of Women of the Middle East and the Islamic World, Vol. 5, N° 1, 2007, pp. 111-126.

L’A. analyse la notion de difficultes et de souffrance de l’epouse comme concept de jurisprudence islamique justifiant un divorce. C’est grâce a cela que de nombreuses femmes obtiennent le divorce : la jurisprudence iranienne s’est en effet inspiree de ce concept pour faire de la souffrance une cause de divorce. La question que se pose l’A. est de savoir quand cette souffrance devient une blessure justifiant le divorce et qui en decide. Selon l’A., afin de suivre les evolutions sociales et re...

'Love Does Not Dominate; It Cultivates' - Modes of Contending with Abuse Against Spouses in Tort Law, Criminal Law and Family Law: A Proposal for a New-Old Model (Hebrew)

This article examines two models relating in different ways to issues of physical, sexual, and emotional abuse between spouses in various legal contexts (criminal law, tort law, and family law) – Jewish law and Israeli law. The two models find solutions, albeit only partial ones, to the problem, in the various legal fields, but their attitudes towards the issue are different. As a matter of fact, in Israeli tort law, there is no special tort of physical, sexual, or mental abuse within the family or in general. This does not mean that a tort action of a spouse against another spouse due to such abuse cannot be recognized, if the issue enters into the framework of one of the existing torts, but the response by these means is not sufficient. In Israeli criminal law, the situation is even worse: the Penal Code has no crime of physical, sexual, or mental abuse except towards a minor or defenseless person. The family law in Israel is a little more encouraging: while mental violence is recognized as a cause for an injunction and restraining order against the violent and abusive party, this is still in rarer and more exceptional cases than for physical or sexual abuse, for example, and other legislative arrangements also discriminate against it, as compared to physical or sexual abuse. Thus there arises a picture of a relatively problematic situation, under which Israeli law handles matters of abuse in a partial and unsatisfactory manner. Jewish Law has followed another and unique path on this matter, placing on the table the special problematicalness of physical and mental abuse that is so typical, unfortunately, of spousal relations. Firstly, Jewish Law emphasizes the duty of spouses to act respectfully towards one another and gave this duty operative-legal significance. Secondly, the Jewish Sages saw acts of violence against a spouse as particularly severe and thought that they justified strong legal policy substantively different from that taken in regular cases of abuse by one person of another (who is not his spouse). In very many cases, Jewish Law relates to the matter of physical violence, where most of the sources on the subject exist, draws conclusions from it, and creates a similar law with regards to mental abuse as well. This is particularly true in the case of civil-tort law and in the case of abuse as grounds for divorce. Jewish Law also uses, generally with great success, an effective societal-criminal punishment of excommunication and ostracism against one who hits his wife or mentally abuses her, while at the same time employing a long list of additional sanctions (such a financial penalties, prison, corporal punishment, etc). Therefore it seems that Jewish Law can serve as a more appropriate model on the fundamental level for handling this matter, obviously after changes adapting it to Israeli law. The model proposed at the end of the Article is an original model that attempts to utilize the advantages of the existing systems and to improve upon them. Under this model, intervention of the legislator is needed to create a special criminal offense of spousal abuse in the Penal Code and a particular tort of spousal abuse in the Civil Code (besides the possibility of ruling increased or punitive damages for such a tort due to its nature), in addition to making the test for granting a restraining order for mental abuse more flexible within family law. All this is an amendment to the existing Israeli law and influenced by Jewish Law. The model also proposes legislative amendments (a tort and crime of abuse, according to its types) and calls for the status of mental abuse to be equalized to that of physical and sexual abuse in the framework of restraining orders in family law as well.

Rules, Responsibility and Commitment to Children: The New Language of Morality in Family Law

Part One of this Article explores the meaning of morality by briefly reviewing a variety of attempts to explore the meaning of moral conduct. This Section draws on a variety of contemporary moral philosophers who have built on the classical tradition to develop a broader definition of moral behavior. This discussion provides a context for the current debate about the meaning of morality in family law and moral discourse in the no-fault era. Part One also reviews the historical debate about how law should strike a balance between promoting communitarian values and respecting autonomy and individual rights. The Article argues that the conflict underlying this debate may be overstated. All laws have moral implications, and decisions about law, made by citizens, legislators and policymakers, necessarily involve choices that privilege some values over others. Regulating family members is a particularly value-laden task. A tension will always exist between protecting individual freedom and privacy of family members and state intervention to further the common good. However, this tension does not require a retreat from the concept of rights within the family; rather, rights can be conceived in a way that furthers the moral vision of family law by using rights as a tool to ensure the protection of vulnerable members of the family. Part One concludes by noting that the hierarchy of values embodied in the moral vision of family law has changed over time. Sexual morality has become less important over time while protecting children has become central to the moral framework of family law. Part Two of the Article examines the traditional, fault-based moral discourse in the law governing grounds for divorce, alimony and child custody that prevailed in this country until the 1970's. It concludes that this approach has several significant drawbacks. First, the fault-era's emphasis on sexual practices and traditional gendered family roles reinforced patriarchy and tended to hurt custodial parents-primarily women-and children. Additionally, the fault-era's reliance on broad discretionary standards resulted in inadequate financial awards and dual standards for men and women. Further, because moral discourse in family law has been primarily focused on issues of sexual conduct in marriage, the fault-era moral vision excluded families created outside of marriage. Litigating issues of fault also exacted significant financial and emotional costs on families. Finally, the emphasis on regulating sexual conduct in the fault-era did little to promote the evolving moral goal of family law-protecting children. Part Three of the Article explores the ways in which some laws that developed in the no-fault era express morality in family law. Examining current laws governing divorce, marital property, child support and custody, the Article identifies ways in which both the language surrounding the debates about such laws and the laws themselves express values of equality, commitment and responsibility for family members, particularly dependent members. The Article notes that for the first time, the language of morality has expanded into two areas that were largely unregulated in the “fault” era-access to marriage and family violence. The Article concludes that these developments over the last thirty years represent a healthy trend toward an overall family policy that strengthens families and protects each family's weakest members. Nevertheless, more needs to be done to achieve a family policy that protects children. Finally, the Article identifies additional measures, both in traditional domestic law and in the broader policy arena, that must be accomplished to truly strengthen families, and most importantly, to protect children.

'So Hedge therefore, Who Join Forever': Understanding the Interrelation of No-fault Divorce and Premarital Contracts

This article explores the interrelation between the availability of no-fault divorce and the enforceability of premarital contracts, exemplified by American and German law. The traditional common law doctrines in the USA and - at least with regard to spousal support - the German civil code of 1900 were similarly hostile towards premarital contracts. In both legal systems divorce was fault based. Conventional wisdom tells us that no-fault divorce and the enforceability of premarital contracts emerged together out of a spirit of liberalization. Yet, by reconstructing the history of both legal institutions, one may observe a more subtle interrelation. The vast majority of jurisdictions in the USA responded to the availability of no-fault divorce with the enforceability of premarital contracts, which reveals a causal relationship. In the case of Germany, it was already in 1938 when the lawmaker introduced through the Ehegesetz (Statute on Marriage) ‘irretrievable breakdown of marriage’ as grounds for divorce, and at the same time legalized premarital contracts on permanent maintenance. From today's perspective, a functional understanding of the interrelation of both legal institutions seems to be the most promising. Family law, criminal law, and tort law are in retreat as protective mechanisms against risks of opportunistic behaviour and hold-ups that may arise through the availability of no-fault divorce. Premarital contracts on the financial consequences of divorce may be apt as an instrument to protect the interests of spouses against such risks. This finding provides a sound justification for contractual freedom in this field and shows that the availability of premarital contracts should be understood as a logical corollary of the availability of no-fault divorce.

Parental Divorce and Children's Adjustment.

This article reviews the research literature on links between parental divorce and children's short-term and long-term adjustment. First, I consider evidence regarding how divorce relates to children's externalizing behaviors, internalizing problems, academic achievement, and social relationships. Second, I examine timing of the divorce, demographic characteristics, children's adjustment prior to the divorce, and stigmatization as moderators of the links between divorce and children's adjustment. Third, I examine income, interparental conflict, parenting, and parents well-being as mediators of relations between divorce and children's adjustment. Fourth, I note the caveats and limitations of the research literature. Finally, I consider notable policies related to grounds for divorce, child support, and child custody in light of how they might affect children s adjustment to their parents divorce.