Whenever two people marry there is the possibility that at some time either, or both, of them will acknowledge that the marriage is not successful and seek to end it. There are a few options for doing this, some more practical than others. The simplest is just to part and live in an unofficially separated state. This has the advantage that the couple can reconcile without any difficulties at a later date since they are considered to have been legally married all along. This is fairly common, the period of separation lasting from a few hours to several years, or even permanently. The shorter periods are often viewed as being part of the process of getting to know one another and making the adjustments necessary to successfully live together in the long term.
Long term separations are sometimes used when two people want to remain married but find their relationship strained if they live together. In these cases two people can live apart but see each other frequently and carry on a long term, loving relationship. It is more expensive than living together, of course, since two of everything are needed, but those who live in relationships like that obviously think that preserving their marriage is worth the added expense.
Other long term separations may be due to religious convictions that divorce is not allowed and that marriage is a permanent arrangement sanctioned by god. It is ironic that some of those people who refuse to divorce will then live with another person in an unofficial arrangement, thus putting themselves in a situation where they are committing adultery, a serious sin in most religions, because they do not wish to sin by divorcing. This is often termed common law marriage, but it is not. Only people free to marry may have a common law marriage, those already married are merely living together in a legally and religiously unsanctioned state and are, from both viewpoints, committing adultery if sexual relations take place.
Sometimes the separation is legally arranged with the terms being reached by voluntary agreement or imposed by a court. This is often because one of the people involved does not want the relationship to end. Legal separations may be viewed as permanent by those who believe that divorce is not Christian, but may be considered temporary by others, who see a legal separation as a means of limiting or avoiding contact with the ex-partner. Not all separations are voluntary nor amicable, and one partner may try to convince the other to reconcile. If they do so too strenuously,this could easily evolve into harassment or coercion. Court imposed conditions usually, but not always, resolve this. How acceptable this is may depend on who is seeking the separation and on religious beliefs about the relations between men and women in marriage. It is not unheard of that one partner just refuses to accept the separation and harasses the other, sometimes engaging in plainly illegal behaviour including assault and rape.
In the past, a legal separation granted by a court used to be known as “divorce from bed and board” in some jurisdictions. This led to misunderstandings about the marital status of some individuals. That expression is hardly used anymore, the expression “legal separation” being used instead since it is more readily understood. Those who were divorced from bed and board were still married, just not required to live together and no longer had any expectation of sexual contact between them. It was not a divorce in the sense that the marriage had been dissolved and they could remarry.
The permanent resolution for a failed marriage is a full divorce. In this the courts declare the marriage terminated. This route is taken since marriage is fundamentally a contract between two people, and courts may cancels contracts if it is warranted. At any rate, many jurisdictions specify what the basis for cancellation of a marriage contract may be.
In passing it might be noted that the state establishes the courts which grant divorces and enacts the legislation establishing the reasons why they might be granted. It is clearly established that the state has the right to end marriages since they have also established the right to grant them in the first place. The state can therefore also set the conditions on which a marriage can take place and between whom, and the conditions under which such a union can be ended. This clearly sets the scene for mixed sex and same sex marriages, restrictions on how many spouses a person may have and the minimum age required for entering into a marriage contract. It also sets the scene for the ending of marriages and the reasons why that may be done.
It has to be noted that religious restrictions involving marriage in various churches may differ from that of the state, so there may be situations in which the state considers people to be married and a church does not, or the state grants a divorce and a church considers it to be invalid. In fact, these are quite common situations but, in a practical sense, the state’s views have greater acceptance since the law of the land generally decides how people are viewed in society. Nevertheless, religious groups may restrict the participation of those it considers improperly divorced or married, and view them as sinners. That is a private matter between them and their church.
It is somewhat contradictory that it is so easy for two people to marry, requiring nothing more than their consent if the law considers them eligible, or the consent of parents if underage. In contrast, to divorce requires the involvement of courts and lawyers in a complex legal process at significant cost to both spouses. This may be necessary when one of the spouses does not want to divorce, or when there are children involved who must be provided for, or when property has to be divided and the division is under dispute. However, when the two spouses are in agreement on all those matters, why do the courts have to be involved?
If the state considers that people who wish to be married to each other require nothing more than an agreement between themselves, then surely it should require the same if they decide to undo the marriage and divorce. When both parties are of a like mind about getting out of a contract, should that not be all that is required since it is all that was required to get into the contract? I fail to see how divorcing with the agreement of both spouses should be more difficult in a legal sense than marrying with the agreement of both participants in the first place. If it is good enough for the one it should be good enough for the other. It would save a lot of emotional, psychological and social trauma if this were the case, as well as bringing it more within the financial means of the people involved and resolving the issue of people remaining tied to each other unwillingly because they can not afford to divorce. This is, in fact, the case with common law relationships which may be ended simply by parting and living in separate homes. For those, the arrangement appears to function reasonably well.
Court imposed divorces and separations should be reserved for those cases where one of the parties does not want to divorce and the other insists on it. Unfortunately, the desire to lay blame lies deep in our society and is often a factor in ending marriages. It is seen in the terms used, such as describing one as the “aggrieved” party. It is not the function of the courts to arbitrate in this but to simply determine whether a marriage has ended with no likelihood of reconciliation. If the court is satisfied that is the case, then a divorce should be authorised without assigning blame.
Special consideration must be given to any children of parents who divorce or separate and their welfare has to be of primary concern. To that end, both parents should have the right to be involved in decisions respecting their children and joint custody should be encouraged as the norm. This is not always possible, usually due to unresolved conflicts between the parents overflowing onto the children and causing them to become the focus of battles being refought over and over again. Parents must keep in mind that the battles belong to them, not the children. The children need care from both parents and any personal distaste the parents have for each other should be put aside for the welfare of the children. Parents are, after all, supposed to be adults and they should behave like it. Where joint custody is not possible there should be some other arrangement made, preferably by voluntary agreement. Only when that is not possible should a court decide which parent has guardianship.
Legislation requiring financial and social support by both parents should be strengthened and enforced, involving the taxation and social services systems when necessary. Once divorced or separated, no parent should be able to shirk their responsibilities to their children by simply refusing to fulfil them. It should be much more difficult than that. The default should be that parents are required to support their children, perhaps by imposing a financial minimum that must be paid to the parent with whom the children live by the other parent . Even if that is not done, the present situation where a parent can be several months in arrears before attempts are made to correct the situation is plainly unacceptable and must be changed. This should also apply to children born to individuals not married to each other, whether the relationship was common law, illicit or casual. Modern DNA testing can resolve any question as to parentage with a very high degree of certainty, so this should no longer be a factor.
Other financial considerations such as support for an ex-spouse, disposition of the family home, the amount of child support to be paid, the children’s place of residence, guardianship, visitation rights and so on, may be settled in a family court established for the purpose. It should only be necessary to involve the criminal court system in cases where violence or some other criminal activity is involved.
In common law relationships it is very easy to divorce as the couple merely have to separate. However, that does not negate their responsibilities to any children of the relationship. The same requirements should apply to common law parents as to legally married parents regarding their responsibilities to any children. In fact, these requirements should also apply to children born as a result of illicit, temporary and casual relationships as well. A parent is a parent regardless of the circumstances in which the woman conceived and no parent should be able to shirk their responsibilities by simply refusing to meet them.
An exception may be if the conception was from artificial insemination by a sperm donor other than a spouse. In that case, there should be legal documents specifying the degree of involvement of the donor signed before conception. Circumstances will vary depending on the relationship of the donor to the woman and would range from no involvement with an anonymous donor to full involvement with a close friend. Once signed the agreement should not be changed except by court order.
A special circumstance is cases involving violent abuse or where the conception results from rape, sexual abuse or incest and in which the woman chooses not to abort the child. Should she elect to raise the child rather than allow it to be adopted there will almost certainly need to be special arrangements made to enforce support from the father. In many cases it would be extremely inappropriate for the support arrangements to be the cause of further distress to the mother by requiring her to periodically meet the other parent. In such cases, it should be possible for the support to be paid into a court and later given to the mother by the court. Involvement of the court would also lessen any chance that the father might refuse to make the payments which support his children. The court might also find it desirable to limit or negate the father’s right to meet with his children. In these types of cases, the court should be given considerable leeway to determine the circumstances governing how the parents and children interact, taking into account the welfare of all parties but paying particular attention to the welfare of the children.
This procedure could be modified to include those parents who have a habit of defaulting on support payments. With them it would be appropriate if the courts were to issue an order against the delinquent parent, collect the support amount and pay it to the receiving parent. The issuance of the court order requiring these payments could then lead to sanctions if the contributing parent refused to pay. Their children would also not be disadvantaged as a consequence of a parental dispute.
That latter point should be one of the major concerns in a divorce, whether voluntary or not. Any children of a union must be properly cared for until they are able to care for themselves. Children are rarely at fault in a divorce and should not be punished for the parents’ failure, nor deprived of their right to parental support from both parents.
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