Divorce in Islam

In Islamic law and marital jurisprudence, divorce is accepted and referred to as talaq.^[3] However, divorce is considered the most hated of all lawful things in the sight of Allah.^[4]

In the medieval Islamic world and the Ottoman Empire, the rate of divorce was higher than it is today in the modern Middle East, which now has generally low rates of divorce.^[5] In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce.^[6] In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%

Divorce

Divorce or dissolution of marriage is the final termination of a marriage, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between two persons. In most countries, divorce requires the sanction of a judge or other authority in a legal process to complete a divorce. A divorce does not declare a marriage null and void, as in an annulment, but divorce cancels the marital status of the parties, allowing each to marry another.

Divorce laws vary considerably around the world. Divorce is not permitted in some countries, such as in Malta and in the Philippines, though an annulment is permitted.

The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt, though these matters are usually only ancillary or consequential to the dissolution of the marriage.

In some jurisdictions divorce does not require a party to claim fault of their partner that leads to the breakdown of marriage. But even in jurisdictions which have adopted the "no fault" principle in divorce proceedings, a court may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support.

In most jurisdictions, a divorce must be certified by a court of law to become effective. The terms of the divorce are usually determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses may have agreed to privately. In the absence of agreement, a contested divorce may be stressful to the spouses and lead to expensive litigation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts. In some other countries, like Portugal, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non judiciary administrative entity, where also can be served an Electronic Divorce since March 2008. The effect of a divorce is that both parties are free to marry again. (see bigamy)

In cases involving children, governments have a pressing interest in ensuring that disputes between parents do not spill over into the family courts. One way of doing this is through the encouragement of a parenting plan. In the United States, all states now require parents to file a parenting plan when they legally separate or divorce.

The subject of divorce as a social phenomenon is an important research topic in sociology. In many developed countries, divorce rates increased markedly during the twentieth century. Among the nations in which divorce has become commonplace are the United States, Canada, and Scandinavia. Japan , France, and Italy retain a lower divorce rate, and it has decreased recently.

Types of Divorce

Though divorce laws vary between jurisdiction, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support.

Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, issues of division of property are typically determined by the law of the jurisdiction in which the property is located.

No-fault divorce

Under a no-fault divorce system, the dissolution of a marriage does not require an allegation or proof of fault of either party. No-fault divorce has been in operation in Australia since 1975. In Australia the only ground for divorce is separation (or "deemed separation") for 12 months. The application can be made by either party or by both parties jointly. The same holds true for Germany.

Forty-nine states of the United States have adopted no-fault divorce laws, with grounds for divorce including incompatibility, irreconcilable differences, and irremediable breakdown of the marriage.

In the United Kingdom, to obtain a no-fault divorce the parties must have been separated for 2 years if both parties agree, and 5 years if one party does not agree.

At-fault divorce

Prior to 1975,^[1] countries which permitted divorces also required proof by one party that the other party had committed an act incompatible to the marriage. This was termed "grounds" for divorce (popularly called "fault") and was the only way to terminate a marriage. Most jurisdictions around the world still require such proof of fault. In the United States, only New York state still requires fault for a divorce.^[2]

Fault-based divorces can be contested and may involve allegations of collusion of the parties, or condonation, connivance, or provocation by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.

Summary Divorce

A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.

Key factors:

• Short marriage (less than 5 years)
• No children (or, in some states, they have resolved custody and set child support payments)
• Minimal or no real property (no mortgage)
• Marital property is under a threshold (around $35,000 not including vehicles)
• Each spouse's personal property is under a threshold (typically the same as marital property)

Uncontested divorce

It is estimated that upwards of 95% of divorces in the US are "uncontested," because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children.

Collaborative divorce

Collaborative divorce is becoming a popular method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support. Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be substantially less expensive than other divorce methods (regular divorce or mediation). However, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot later be used in further legal proceedings, as the collaborative process is confidential proceedings. Furthermore, there are no set enforceable time lines for completion of a divorce using collaborative divorce.

Mediated divorce

Divorce mediation is an alternative to traditional divorce litigation. [1] In a divorce mediation session, a mediator facilitates the discussion between the husband and wife by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include the party's attorneys or a neutral attorney or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted without attorneys. Divorce mediators may be attorneys who have experience in divorce cases. Divorce mediation can be significantly less expensive than litigation. [2]. The adherence rate to mediated agreements is much higher than that of adherence to court orders.

My Kids First

Marriages end, and do so nearly half the time. But when spouses are also parents together, the connection doesn't end when the divorce papers are filed. There will still be graduations, marriages and a whole array of life-changing moments to share. And beyond the big events, there are the ordinary rituals: Mother's Day, Father's Day, the first day of school, Thanksgiving—all times when good parental cooperation and planning can help kids thrive post-divorce. "You have to take the kid's perspective, not your own," advises Robert E. Emery, professor of psychology and director of the Center for Children, Families and the Law at the University of Virginia. Suppressing your natural emotional response can be a real challenge, acknowledges Emery. "In order to make it work, you have to end your relationship in a way that's emotionally unnatural. At the end of a romantic relationship, you'd normally say, 'I never want to see you again,' but when there are children, you have to contain that impulse. You have to put your emotions aside."

He offers these basic tips for divorced parents on how to make the holidays less stressful for everyone. (There's more on how to collaborate with an ex-spouse, and why it's so important, in Emery's book "The Truth about Children and Divorce" (Viking/Penguin, 2004).

1. Remember that the holidays are not all about you.
Your children deserve their celebrations even if you feel cheated out of yours. Encourage them to have a blast with their other parent, even if you can't stand the prospect of being alone.

2. Get into the spirit of the season.
This is a time of giving, forgiving and fresh starts. Turn Scrooge's emotional lessons about holidays past, present and yet to come into New Year's resolutions about letting go of anger and treasuring all you have—despite all you have lost.

3. Another lesson from Scrooge: Love means far more than money.
Your time, attention and emotional presence are much more important to your children than lavish gifts. You may be short on money but you can be long on love.

4. The holidays are not a competition with your ex, or for your children.
Teach your children the true meaning of the holidays, not the meaninglessness of materialism.

Not Your Dad's Divorce

Most parents will never forget the details of the day their children were born. For those who divorce, there's another day—equally vivid, totally different—that etches into memory: when they have to tell their children their mother and father are splitting up. What I remember is pacing through our apartment the night before, watching my girls sleep. The older one was 8 and still slept as she had when she was a newborn, arms thrown high above her head. The little one, just 4, was curled at the top of her bed, leaving two thirds of it empty.Their dad and I had read the divorce books and rehearsed our speech about how none of this was their fault, that we loved them. All of this was true, but it seemed insufficient. He and I made a big calendar, as advised, with mom days in red and dad days in purple. In the half-light of that sad morning, I opened the calendar and realized that this crazy quilt would be a map for our lives from now on.

In the morning, we sat the girls on the sofa and told them. They cried, and were confused, but they didn't ask the big questions we thought they would. They wanted to know where they'd live, and whether they would still have the same last name. When we showed them the calendar, our older girl turned it a few pages ahead to her birthday month, which we hadn't colored in yet. She panicked. "But Mom, is my birthday red or purple?" Her dad and I looked at each other and said, "Both. We'll both be there." She would not rest until we filled the day in with red and purple. And with that, our new family life was born.

Birthdays had been part of the initial conversations my ex-husband, Jorgen, and I had had about how the schedule would work. When his parents divorced in the 1970s, they adopted the standard every-other-weekend-with-dad setup. He remembered missing his father tremendously and didn't want that for our kids. We talked about sharing time with them more equally—legally it's called joint physical custody, as opposed to the more common joint legal custody, where the child may live primarily with one parent, but both parents make big decisions, like which school the child goes to, together.

Joint custody meant that the girls would be spending several nights a week with their dad. Switching would require collaboration and communication about homework and school projects and the thousand other things that kids need from day to day. To make it work, we'd have to live near each other for the next 13 years, until the youngest girl was off to college. It was a commitment not unlike marriage, and, given that feelings were still raw post-divorce, neither of us thought it would be easy.

No child custody schedule is. It can involve long commutes and budgets strained by the costs of maintaining two households. The traditional dad-gets-every-other-weekend formula is logistically easier than what Jorgen and I planned. But ours is an increasingly common arrangement. "It's not like it was 20 years ago," says Leslie Drozd, editor of the Journal of Child Custody. "There's no longer the same presumption that young children must be with their mother."