Divorce

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DIVORCE.

CATHOLICISM AND DIVORCE
PREWAR AND POSTWAR EUROPE
DIVORCE AND FAMILIES
BIBLIOGRAPHY

Unlike the Protestant view, Catholic doctrine considers marriage as an indissoluble sacrament. At the end of the eighteenth century, the monopoly on matrimonial cases that the Catholic Church was still claiming to exercise in many European countries was severely shaken. Among other questions, the controversy was strong over the opportunity to allow divorce, within a conception of marriage based on contract, favoring the affection between spouses rather than the strategies of alliances between families. In France the revolutionary law of 1792 made divorce possible through three procedures: certain determinate causes; mutual consent; and incompatibility, even when just one spouse alleged an incompatibility of temperament. This permissive and egalitarian law was abrogated by the Civil Code of 1804—applicable for various periods in a number of European countries after the Napoleonic conquests—which signified are turn to an earlier order typified by inequality between husband and wife. The principle of divorce was maintained, in the name of the religious liberty, but the grounds were reduced. The civil code established a limited number of faults (the wife's adultery; the husband keeping a concubine in the matrimonial home; cruelty; and condemnation to certain penal sanctions). Divorce by mutual consent was also provided for, but made very difficult to obtain and was full of disadvantages for both the parties. This procedure by mutual consent was in fact preserved for one main reason: to allow the dissimulation of "scandalous" causes, for the sake of family order. It was only in 1857 in England and Wales, outside the influence of the French Civil Code, that divorce was made available in a new nonecclesiastical court. The new procedure, which replaced the need for a private act of Parliament, rested exclusively on the grounds of fault, which was categorized differently for men and women. In Germany, it was only thanks to the coming into force of the first German Civil Code (BGB 1900) that uniform divorce legislation became applicable, on the grounds of fault as well.

In some European countries divorce, which had been provided for during relatively liberal periods, was suppressed following the imposition of authoritarian regimes. For example, in Portugal divorce was introduced in 1910, abrogated in 1940, and reintroduced in 1975; in Spain it was introduced by the Republicans, suppressed under the regime of Francisco Franco, and reestablished in 1980. In Russia, civil divorce was only possible after the Bolshevik Revolution (1917) and in Austria, after the Anschluss (1938). Accused of contributing to the destruction of the family, already allegedly imperiled progressively by women's emancipation and the decline of marital power, divorce became a major political issue, and, for a long time, moralists and even sociologists considered it a "social evil," criticizing the damage provoked by rare examples of liberal legislation (for example, in the United States and the Soviet Union). This distaste explains why most European countries first organized divorce around the notion of some fault committed by one of the spouses. The view was that marriage, seen as an institution, should only be broken in extremely serious cases, and legislators hoped that these would be rare. Belgium was an exception by admitting mutual consent, which was organized according to the restrictive logic of the Code Napoleon. Some countries, such as Norway, also recognized divorce on the grounds of insanity, which strictly speaking could not be considered as a fault.

CATHOLICISM AND DIVORCE

Catholicism continued to influence the issue of divorce in Europe during the twentieth century. Papal encyclicals repeated indefatigably the sacred character of marriage, with clear impact on secular law, as some countries only introduced divorce very late (Italy, 1970; Ireland, 1996) or even still refuse to allow it in the early twenty-first century (Malta, despite its membership in the European Union, although the situation there may change, as it did in Ireland). The secularization of marriage, as a civil contract, became predominant, even in non-Catholic countries (Greece, 1920). Strictly speaking, judicial separation—which does not authorize remarriage—remains the only possibility for observant Catholics, if apart from exceptional cases of annulment as illustrated by the famous case of Caroline of Monaco (1992).

PREWAR AND POSTWAR EUROPE

For a long time, the divorce rate in Europe remained very low. Divorced spouses were often socially ostracized and remarriages were disapproved of. Progressively, however, the notion of fault appeared inadequate in contrast with the extreme complexity of conjugal life. Collusion and condonation between spouses to disguise mutual consent in the form of a fault was widespread. For their part, judges played an important role, interpreting legal categories so as to widen the grounds for divorce and to soften the inequalities of which married women were the victims. These changes, brought about by case law, were in some countries little by little incorporated into statutes. After World War I, certain legislation equalized the position of both spouses (England and Wales, in 1923 and again in 1937), simplified procedures (Soviet Union, 1926), or introduced new grounds for divorce: the recognition of the irretrievable breakdown of the marriage (already admitted in Norway from 1909 and in Switzerland from 1912) and the existence of separation for a certain length of time (Denmark, 1922; Finland, 1929). So it was that before World War II, some countries had mixed systems, where fault and no-fault divorce coexisted.

The divorce rate rose spectacularly after World War II, feeding the debate on the grounds and the procedures that ought to be favored. Many regretted that the notion of fault contributed to poisoning the relationship between spouses and forced them to express their requests in terms of culpability. In the 1960s, the whole of family law underwent some dramatic reform (affiliation, matrimonial property, marital power, and the incapacity of married women), mainly under the impulse of rising feminism. Divorce could not escape this process. Women's liberation movements fought for the promotion of divorce by mutual consent. Following the example of Scandinavian countries, the United Kingdom, under the rather paradoxical influence of the Anglican Church (articulated in the report Putting Asunder, 1966) emphasized breakdown of marriage, seen in some cases as an "empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation." This logic spread throughout the Continent: the recognition of the failure of a marriage, often demonstrated by a specified period of separation, progressively replaced the need to demonstrate fault (Netherlands, 1971; Sweden, 1973; Belgium, 1974; Germany, 1976; Scotland, 1976). In the early twenty-first century this "divorce-failure" (divorce-faillite) has been generalized, often based on a two-stage procedure (a separation for an ever shorter period followed by the divorce itself), sometimes in the general frame of extremely simplified procedures (Sweden, 1973; England and Wales, 1973). Nevertheless, in some systems, powers have been reserved to judges to dismiss the petition for divorce if their evaluation is that the dissolution of the marriage would have consequences that are too heavy, materially or morally, for the children or for the "innocent" spouse—the one who has not brought the action. This "hardship clause," by shifting the emphasis from grounds to consequences, in effect reintroduced fault by the back door.

In the early twenty-first century one tends to say that in some European countries (Belgium and France, among others), one out of three marriages ends in divorce and even, in some big cities, one out of two. This statistical frequency is often connected with factors that need to be carefully examined. Such statistics tend to foster representations of gender relationships and prejudice judgments over the supposedly negative consequences of women's emancipation. It is the case for married women's employment, even if it is clear that to be able to earn a living increases women's independence and hence their possibility to start a divorce procedure. Female emancipation and the influence of women's liberation movements are often referenced. It is true that in 70 percent of European divorce cases, women take the initiative to petition for a divorce. Everywhere spouses are encouraged to reach an agreement on how to share property and how to exercise parental responsibility (alimony, guardianship of children, and rights of visitation). The court procedure, which most legislation tends to make less contentious, is often accompanied by a familial mediation.

DIVORCE AND FAMILIES

In the eighteenth-century debate, where all the arguments that were going to be used in the nineteenth and the twentieth centuries were already developed, it was the idea of happiness and of the personal fulfillment of husbands and wives that promoted the need for allowing dissolution of marriage. By the same token, marriage, once viewed primarily as an institution that supported society and the state, became founded more on affection between spouses. This ideology of love has rendered conjugal unions more fragile, as such unions could be ended legally, bringing into question the notion of the universal, durable heterosexual couple. Just as the nuclear family was being made possible by the rise of individualism, it faced the ever greater risk of dissolution.

By bringing matrimonial life to an end, divorce often results in a single person, on the one hand, and a single-parent family, on the other, most often headed by a woman. Some gender studies are now seriously questioning whether no-fault divorce has an altogether beneficial effect for women, though it had been a major feminist objective. In all European countries, the great majority of divorces that are based on a specific grounds result in the mother assuming guardianship of the children, confirming the traditional female role in the field of education, often presented as a privilege. For some years, associations of fathers have expressed their sense of unfairness with regard to the alleged tendency of courts to deprive them of full parental responsibility. But the number of fathers who in fact apply for guardianship remains low (less than 20 percent in France). If the grounds for divorce are not any more at the center of important controversies, the effects of the breakdown are being treated as a worrying social issue. Failure to pay alimony is a common problem and one that is difficult to resolve. The tendency seems to be for the state to meet the initial payment of these rather large sums when one spouse does not do so (Scandinavian countries; Belgium, 2004). Beyond that, the increase in the divorce rate has multiple consequences worthy of a full inventory, as, for example, the reorganization of housing provision (in some big cities, single-person homes are in the majority).

In some parts of Europe, the majority of the pupils come from broken homes. Divorce leads to a reorganization of family relationships, giving rise by the same token to new forms of kinship and alliance and to new questions should these recomposed families break up in their turn. A new legal and sociological definition of family could well be needed. The increase in the divorce rate is contributing to a trivialization of the dissolution of marriage to such an extent that one can state that divorce is now a part of marriage.

See alsoCatholicism; Demography; Sexuality.