Greco-Roman culture Rather than being conceived as a legal procedure, divorce in
Classical Athens was largely thought to be a private matter — defined by law, but with no specific legal action required. To divorce his wife, an Athenian man need only to dismiss her by sending her back to her family. It is unknown what would have constituted socially acceptable grounds for divorce, save for the fact that it was required by law for men to divorce adulterous women. The procedure for divorce was considerably more difficult for women. In order to initiate divorce, Athenian women were required to appear in public before the archon to state their case. This procedure was a considerable exception to standard Athenian legal conventions, which barred women from representing themselves in court, as woman-initiated divorce proceedings required a woman to represent herself as a matter of public record. Divorce was rare in early Roman culture but as their
empire grew in power and authority
Roman civil law embraced the maxim, "" ("marriages ought to be free"), and either husband or wife could renounce the marriage at will. The Christian emperors
Constantine and
Theodosius restricted the grounds for divorce to grave cause, but this was relaxed by
Justinian in the 6th century.
Mali Empire In
post-classical Mali, laws relating to divorced women were documented in the
Timbuktu manuscripts.
Medieval Europe After the fall of the Roman Empire, familial life was regulated more by ecclesiastical authority than civil authority. The Catholic and Orthodox Church had, among others, a differing view of divorce. The Orthodox Church recognized that there are rare occasions when it is better that couples do separate. For the Orthodox, to say that marriage is indissoluble means that it should not be broken, the violation of such a union, perceived as holy, being an offense resulting from either adultery or the prolonged absence of one of the partners. Thus, permitting remarriage is an act of compassion of the Church towards sinful man. Under the influence of the Catholic Church, the divorce rate had been greatly reduced by the 9th or 10th century, which considered marriage a
sacrament instituted by
Jesus Christ and indissoluble by mere human action. Although divorce, as known today, was generally prohibited in Catholic lands after the 10th century, separation of husband and wife and the
annulment of marriage were well known. What is today referred to as "
separate maintenance" (or "
legal separation") was termed "divorce a mensa et thoro" ("divorce from bed-and-board"). The husband and wife physically separated and were forbidden to live or
cohabit together, but their marital relationship did not fully terminate.
Civil courts had no power over marriage or divorce. The grounds for annulment were determined by a Catholic church authority and applied in
ecclesiastical courts. Annulment was for
canonical causes of impediment existing at the time of the marriage. "For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio." The Catholic Church held that the sacrament of marriage produced one person from two, inseparable from each other: "By marriage, the husband and wife are one person in law: that is, the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything." Since husband and wife became one person upon marriage, recognition of that oneness could be rescinded only on the grounds that the unity never existed to begin with,
i.e., that the proclamation of marriage was erroneous and void
from the start.
Secularisation in Europe of England broke with the
Catholic Church in order to obtain an annulment. After the
Reformation, marriage came to be considered a
contract in the newly Protestant regions of Europe, and on that basis,
civil authorities gradually asserted their power to decree a "divortium a vinculo matrimonii", or "divorce from all the bonds of marriage". Since no
precedents existed defining the circumstances under which marriage could be dissolved, civil courts heavily relied on the previous determinations of the
ecclesiastic courts and freely adopted the requirements set down by those courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and considered divorce to be contrary to
public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred
vow to the "innocent spouse". If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage". Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as
abandonment,
adultery, or "extreme cruelty". An exception to this trend was the
Anglican Church, which maintained the doctrine of marital indissolubility. During the
English Civil War, the
Puritans briefly passed a law that divested marriage of all sacrament, leaving it as a secular contract that could be broken.
John Milton wrote
four divorce tracts in 1643–1645 that argued for the legitimacy of divorce on grounds of spousal incompatibility. His ideas were ahead of their time; arguing for divorce at all, let alone a version of
no-fault divorce, was extremely controversial and religious figures sought to ban his tracts. In 1670 a precedent was first set with an
act of Parliament,
Lord Roos Divorce Act 1670 (
22 Cha. 2. c.
1 ), allowing Lord
John Manners to divorce his wife,
Lady Anne Pierrepont, and until the passage of the
Matrimonial Causes Act 1857, divorce could only be obtained through a specific Act of Parliament. , first wife of
Napoleon, obtained the civil dissolution of her marriage under the
Napoleonic Code of 1804. The move towards secularisation and liberalisation was reinforced by the individualistic and secular ideals of the
Enlightenment. The
Enlightened absolutist, King
Frederick II ("the Great") of
Prussia, decreed a new divorce law in 1752, in which marriage was declared to be a purely private concern, allowing divorce to be granted on the basis of mutual consent. This new attitude heavily influenced the law in neighbouring
Austria under Emperor
Joseph II, where it was applied to all non-Catholic Imperial subjects. Divorce was legalised in France after the
French Revolution on a similar basis, although the legal order of the
ancien regime was reinstated at the
Bourbon restoration of 1816. The trend in Europe throughout the 19th century, was one of increased liberalisation; by the mid-19th century, divorce was generally granted by civil courts in the case of
adultery. signing divorce papers with celebrity attorney
Jerry Giesler. In Britain, before 1857 wives were regarded as under the economic and legal protection of their husbands, and divorce was almost impossible. It required a very expensive private act of Parliament costing perhaps £200, of the sort only the richest could possibly afford. It was very difficult to secure divorce on the grounds of adultery, desertion, or cruelty. The first key legislative victory came with the
Matrimonial Causes Act 1857, which passed over the strenuous opposition of the highly traditional Church of England. The new law made divorce a civil affair of the courts, rather than a Church matter, with a new civil court in London handling all cases. The process was still quite expensive, at about £40, but now became feasible for the middle class. A woman who obtained a judicial separation took the status of a
feme sole, with full control of her own civil rights. Additional amendments came in 1878, which allowed for separations handled by local justices of the peace. The Church of England blocked further reforms until the final breakthrough came with the
Matrimonial Causes Act 1973. In
Spain, the 1931 Constitution of the
Second Spanish Republic for the first time recognised a right to divorce. The first law to regulate divorce was the
Divorce Act of 1932, which passed the Republican Parliament despite the opposition of the Catholic Church and a coalition of the Agrarian Minority and Minority Basque-Navarre Catholic parties. The dictatorship of General Franco abolished the law. After the restoration of democracy, a new divorce law was passed in 1981, again over the opposition of the Catholic Church and part of the Christian Democrat party, then a part of the ruling Union of Democratic Center. During the first socialist government of
Felipe González Márquez, the 1981 law was amended to expedite the process of separation and divorce of marriages, which was again opposed by the Church, which called it "express divorce". In
Italy, the first divorce law was introduced on 1 December 1970, despite the opposition of the
Christian Democrats, and entered into force on 18 December 1970. In the following years, the Christian Democrats, supported also by parties opposed to the law, promoted a recall referendum. In 1974, in a referendum, the majority of the population voted against a repeal of the divorce law. A feature of the 1970 divorce law was the long period of marital separation of five years required. This period was reduced to three in 1987 and to a year in 2015, in the case of judicial separation, and six months in the case of separation by mutual agreement.
Ireland and
Malta approved divorce at referendums in 1995 and 2011 respectively. Divorce rates increased markedly during the 20th century in developed countries, as social attitudes towards family and sex changed dramatically. Divorce has become commonplace in some countries, including the
United States,
Canada,
Australia,
Germany,
New Zealand,
Scandinavia, and the
United Kingdom.
Japan In the Edo Period (1603–1868), husbands could divorce their wives by writing letters of divorce. Frequently, their relatives or marriage arrangers kept these letters and tried to restore the marriages. Wives could not divorce their husbands. Some wives were able to gain sanctuary in certain
Shinto "divorce temples". After a wife had spent three years in a temple, her husband was required to divorce her. In 19th century Japan, at least one in eight marriages ended in divorce. There are four types of divorce in Japan: divorce by agreement in which the divorce is mutual; divorce by mediation, which happens in family court; divorce by decision of family court that takes place when a couple cannot complete a divorce through mediation; and divorce by judgment of a district court.
India On a national level, the
Special Marriage Act, passed in 1954, is an inter-religious marriage law permitting Indian nationals to marry and divorce irrespective of their religion or faith. The
Hindu Marriage Act, 1955 legally permitted divorce to Hindus and other communities who chose to marry under these acts. The Indian Divorce Act 1869 is the law relating to the divorce of person professing the Christian religion. Divorce can be sought by a husband or wife on grounds including adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, and leprosy. Divorce is also available based on mutual consent of both the spouses, which can be filed after at least one year of separated living. Mutual consent divorce cannot be appealed, and the law mandates a minimum period of six months (from the time divorce is applied for) for divorce to be granted. Contested divorce is when one of the spouses is not willing to divorce the other; in such a circumstance divorce is granted only on certain grounds according to the Hindu marriage act of 1955. While a Muslim husband can unilaterally bring an end to the marriage by pronouncing talaq, Muslim women must go to court, claiming any of the grounds provided under the
Dissolution of Muslim Marriage Act. In the first major family law reform in the last decade, the Supreme Court of India banned the Islamic practice of "Triple Talaq" (divorce by uttering of the "Talaq" word thrice by the husband). The landmark Supreme Court of India judgment was welcomed by women activists across India. Official figures of divorce rates are not available, but it has been estimated that 1 in 100 or another figure of 11 in 1,000 marriages in India end in divorce. Various communities are governed by specific marital legislation, distinct to Hindu Marriage Act, and consequently have their own divorce laws: • The Parsi Marriage and Divorce Act, 1936 • The Dissolution of Muslim Marriage act, 1939 • The Foreign Marriage Act, 1969 • The Muslim Women (Protection of Rights on Divorce) Act, 1986 An amendment to the marriage laws to allow divorce based on "irretrievable breakdown of marriage" (as alleged by one of the spouses) is under consideration in India. In June 2010, the Union Cabinet of India approved the Marriage Laws (Amendment) Bill 2010, which, if cleared by Parliament, would establish "irretrievable breakdown" as a new ground for divorce. Under the proposed amendment, the court before proceeding to the merits of the case must be satisfied by the evidences produced that parties have been living apart for a continuous period of not less than three years immediately preceding the presentation of the petition.
Islamic law Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are
talaq (
repudiation),
khulʿ (mutual divorce/annulment), judicial divorce and oaths. The theory and practice of divorce in the Islamic world have varied according to time and place. Historically, the rules of divorce were governed by
sharia, as interpreted by
traditional Islamic jurisprudence, and they differed depending on the
legal school. Historical practice sometimes diverged from legal theory.
Early America In colonial America, marriage was understood to be for the purpose of reproductive and economic success. Divorce was granted if either party was proven to have deceived the other about their financial or reproductive status.
Impotence as grounds for divorce required physical examination of the husband. Women with malformed genitalia would also be examined by a midwife to determine if the malformation was responsible for infertility. In the 1860s, marriage law changed rapidly as the definition of
miscegenation was altered to account for more and different racial categories. This sometimes forced the annulment of
mixed-race marriages. == Patterns ==