What Divorce and Marriage Trends Tell Us.

Posted on December 14, 2011 by moore

To many marriage should still form the bedrock of a traditional family life and therefore in turn is key to a stable and settled society. Marriage in the UK is often seen as an institution that is in crisis following the decline of widespread religious followings and the liberalisation of divorce laws and procedures, and as a result the topic has become a political fighting ground. But what do the statistics actually tell us about how our society is changing.

Marriage

The headline figure that most people tend to look at when reviewing marriage statistics is how many ‘x’ thousand of individuals have married in the last year.  The latest figures we have at our disposal from the Office for National Statistics for England and Wales are for the year 2009 and these show that marriages fell by 1,500 on the previous year to 231,490 – a drop of 0.64%.   However as the pool of available and prospective marriage candidates will never be the same from one year to the next the more telling metric to analyze is the proportion of unmarried individuals that wed in that period.  Interestingly, this figure was down more significantly, in line with the longer term trends, with drops of 2.29% and 2.04% for men and women respectively.  What’s more, this rate is now at its lowest level on record for both sexes.

For fans of marriage this does seem to create rather a gloomy picture as it not only tells us that the sheer number of marriages taking place is dropping but as populations increase that the pool of unmarried people is, by extension, increasing (as the slightly lower number of marriages accounts for an even lower proportion of unmarried couples).

That said, by looking at some of the other clues that are available there might be solace on offer. The same set of data also indicates that the average age at which people choose to marry (both in general and for the first time) has risen and so it may actually be inferred from the data taken as a whole that people are taking the sanctity of marriage more seriously and waiting until they are more certain about the commitment before getting wed. The fact that the number of cohabiting couples has also risen may additionally imply that the delay is in part a result of a contentedness to cohabit, possible under the misconception that this affords the couple some legal status, such as the mythical common-law marriage.

Divorce

Since 2004, both the total number of couples divorcing and, more significantly, the percentage of married couples that that accounts for, has been steadily falling.  In 2009 the total number of divorces hit its lowest point since 1973 at 113,949, but crucially this cannot be solely attributed to a fall in the number of people getting or being married in the first place; as a proportion of those married the total only accounted for 10.5% – a 0.7 (or 6.25%) reduction on the previous year and the lowest proportion since 1977.  So, in short, despite the fact that fewer people are getting married, even fewer and now divorcing.

The problem in assessing what this is telling us about the longer term trends in society is that, to a greater or lesser extent these figures may be affected by legacy issues from years or decades ago. As seen in the divorce boom of the 70s and early 80s, where on average the length of a marriage which would lead to divorce hovered around 10 to 12 years, the easing of the barriers to divorce allowed a rush of divorces for couples that may have taken the action in previous decades had the options been there.

The average length of a marriage which leads to divorce now in the UK has stabilised around 11.5 years so those couples who are divorcing now may again on the whole be telling us more about those legacy issues than the strength of marriages commencing now. Taking into account the falling divorce rate (per married couple), along with the aforementioned slight decline in marriage rates and the increasing average age of marrying individuals, it may add support to the inference that the commitment of marriage is being taken more seriously and individuals are waiting until there are ready and mature enough to marry; perhaps hinting that new marriages taking place now will ultimately lead to even lower divorce rates in the future.

These figures are only scratching the surface and to get a better understanding of the longer term trends we may need to analyse separately the outcomes of marriages which began across successive years, not to mention across the different nations of the UK.

Whatever, the future holds, there is no doubt that marriage and divorce remain contentious and political issues. However they are also major transitional life events for those involved at a personal level, and when divorce is on the horizon individuals should always seek reliable advice such as Divorce Solicitors London.

© Stuart Mitchell 2011

 

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2010 Divorce Rates and Longer Term Trends

Posted on December 14, 2011 by moore

On 8th December 2011, the Office of National Statistics (ONS) released the latest figures on divorces taking place in 2010.  Having recently written about the trends over recent years, and what this tells us about the health of marriage as an institution, it is worth considering how these latest stats affect the bigger picture.

The headline is that the number of divorces in 2010 rose; the first annual rise in eight years (since 2003) and seemingly out of step with the broader trend.  The total number of divorces that occurred in 2010 came to 119,589 representing a 4.9% increase on 2009’s 113,949 divorces.  Although, on the surface, this does seem to suggest a rise in the prevalence of divorce the figure could potentially be explained by other factors such as a larger married population – more tellingly the divorce rate, that is the percentage of the married population that got divorced, also rose from 10.5% in 2009 to 11.1% in 2010. So does this reinforce the perception that more marriages are failing?

Rather than an indication of a broader shift in societal attitudes it is more likely that the results for 2010 mark a glitch in a longer term decline in divorce rates. This kind of glitch or spike in divorce rates has been seen at other points in recent history when the country has been on the tail end of a recession.  In 1993 the rate spiked following the recession between 1990 and 1992. There seems to have been a lag between the worst of the financial troubles and a jump in divorces and it seems plausible that this could also hint at causality;  financial issues are one of the major causes of relationship breakdowns and the lag may be explained by a) an initial reaction to ‘pull together’ to deal with money issues, b) the build up of subsequent pressures in the relationship and then, c) once the relationship has broken down, the time it takes for divorce process itself to complete.

In terms of the broader picture, the actual number of divorces has been noticeably falling for the last decade although it is easy to attribute this to the corresponding fall in marriages and previous divorce trends eroding the size of the married population in the first place.  The fact that the divorce rate has been steadily falling too suggests that those who are married are less likely to split.

Further evidence comes from the profile of those couples involved. More divorces involved individuals aged 40-44 than any other age group in 2010 but interestingly it seems that the age at which people divorce is creeping up (both men and women had 0.2 increases to 44.2 and 41.7 respectively), albeit in line with the rise in the age at which people are marrying, whilst the duration of marriages has plateaued.  Moreover, the highest rate of divorces for men in 2010 was seen in the 30-34 year old age group rather than the 25-29 group in 2009 (women were unchanged).  This may all suggest that marriages are starting later but are beginning to last a little longer.

Despite the latest figures telling us that 33% of marriages starting in 1995 had failed in the 15 year period to 2010 (up from 22% of those in the same 15 year period from 1970) the ONS is suggesting that the figures they have obtained so far may indicate that the rate of divorce before the 15th year for more recent marriages may be likely to decline.  Again this adds a little more weight to the argument that couples now seem to be waiting longer (cohabiting), being more cautious but ultimately, as a result, being more successful in their marriages.

In summary, it would seem most likely that the rise in divorces in 2010 is a spike, as witnessed in previous periods of recession, rather than a longer term trend.  There is still evidence in the age and duration of those getting divorced to support the bigger picture that couples are being more successful in marriage, but only time will tell.

If you are thinking of getting a divorce it is important that you seek legal advice from a divorce solicitors London.

© Stuart Mitchell 2011

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Recommendations of the Family Law Justice Review

Posted on December 14, 2011 by moore

The Family Law Justice Review has been carried out by David Norgrove, with recommendations to the government on ways to improve family law, in particular with regards to children.

Key Recommendations

In his now published review, David Norgrove has said that where children’s futures are concerned cases should take no longer than six months. If this were the case it would mean a lot of cases being sorted out much quicker than they currently are.

Another key point is that families (and parents) should be enabled to, and assisted in, making their own decisions when a family breaks up. The objective here is for the courts to only be used when absolutely necessary, rather than just being a matter of course, as it currently is some of the time.

A third key recommendation is to overhaul the family justice system so that agencies and professionals work together in the hope of improving services for everyone.

What the Review Found

The review found that the current system is under huge strain, with the number of cases rising all the time. Cases are taking too long, which means the whole system gets clogged up with delays having a negative impact on children and their parents. It currently takes, on average, over a year for the outcome of a case where a child’s future is being decided. This leads to children not knowing where they will live and there are currently around 200,000 children waiting for their futures to be decided.

The main aim of any changes would be for family law  to be more effective and more efficient. Norgrove recommends that delays should be reduced so the processes quickens up, especially where children are concerned.

Reducing the Need for Court

When the courts have to be used in family law cases it generally takes a lot longer and can cause stress for all those involved. The review has stated that this could often be avoided. Parents should be given more information and educated more so they don’t have to turn to the courts. There have already been moves planned to increase the use of mediation, where couples can discuss their situation and come up with an amicable solution that is good (or as good as possible) for everyone. Separating couples may soon be required to enter into mediation except for where abuse has taken place. The key, according to the review, is that the courts should only be used as a last resort.

Other Recommendations

Something that has been established as key is that agencies and professionals work together. It has also been recommended that more cases are heard by specialist family law judges to increase understanding and consistency. The court structure should also be simplified so that it is easier for people to deal with. And all in all, the system should be more child focussed.

Criticisms

The recommendations have been criticised in some quarters for not suggesting changes so that Father’s have, by default, equal rights to the custody of children. This has lead to newspaper stories claiming that it has ruled against Fathers having equal rights. This perspective is not accurate though, as this part of the law would not change should Norgrove’s suggestions be followed.

The key, according to Norgrove, is that the whole legal process in family law cases should be simplified and sped up to make it easier for everyone. Mediation should become more important with courts only used when absolutely necessary. The priority should be on parents agreeing on child care arrangements between themselves wherever possible.

Andrew Marshall (c)

More Information

BBC article on the Family Law Review

Family Law Justice Review

 

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Should Cohabitation Law Change?

Posted on December 14, 2011 by moore

More couples than even are living together without getting married, whether never planning to get married or living together for a while prior to marriage. There are more than four million cohabiting couples in the UK now, with nearly half of children being born outside of marriage.

While a couple living together may not be a problem, it can become problematic if they separate. It can be confusing for people as they may not know exactly where they stand. For example, what happens if they own a home together or have children? Many have the wrong idea of family law in these cases, while others don’t consider it when they first move in together. After all, to some, simply living in a house with another person may not seem that bigger deal even if they are a couple. Some assume that cohabiting couples have the same legal rights as a married couple, with the idea of common law marriage, where couples who have lived together long term automatically have the same rights as married couples. This is not the case; the idea of common law marriage in the UK is a myth.

The problem at the moment is that people don’t really know where they stand, and many who think they know have the wrong idea. This issue has recently been in the news with the case of Ms Jones and Mr Kernott, who were an unmarried couple living together with their children. They separated and Mr Kernott moved out of the home with Ms Jones and the children continuing to live there, with Ms Jones paying the mortgage. Once the children had grown up Mr Kernott made a claim for the home, assuming he would be entitled to 50%. After many lengthy court battles the Supreme Court has awarded Ms Jones 90% and Mr Kernott just 10%. This could be a significant case in terms of determining entitlements of separating cohabiting couples.

Many legal experts have argued that with so many cohabiting couples the law needs to be changed and simplified. But how? There are many opinions as to what the law should be regarding separating unmarried couple who have lived together. Below are some of these arguments.

It should be balanced to reflect the assets that each person brought into the relationship.

This would be simple in many cases, as if one person owned the home the couple lived in, they would retain ownership after. Where both work, it would mean each keeping their own earnings. The problem would come where circumstances are different when they separate to when they moved in together. For example, if they have children and one parent gives up work to look after the children, then it would be unfair for this parent to be left with nothing. There is also the fact that just because one person owns the home doesn’t mean that that person is paying the mortgage. At the same time splitting the mortgage payments could be conceived as being the same as splitting rent on a rented property. The thing with this argument is that it should simplify things where the circumstances are straightforward but it would not work where it is more complicated and things have changed over time.

It should work just as it does with a marriage

In some ways this would be the easiest way for things to work, effectively bringing into law common law marriage. This would mean both halves of a couple would know exactly where they stand prior to moving in together and changes in circumstances would be taken into consideration during a separation. The reality, though, is that some couples when first living together have not got married for a reason; they do not want to be treated as a married couple. They might not be really for that sort of commitment, either emotionally or in terms of sharing assets in the same way a married couple does. Would it be right for a couple to live together only for a few months and then to have to split assets upon separation? And it could be argued that if you want to be treated as though you are married, then you should get married.

A couple should be able to make a legally binding agreement prior to living together

This could make things simpler. The couple could have a family law solicitor draw up a written agreement that states what would happen, and how assets would be divided if they were to separate. This would mean both know where they stand, and if they were to separate things would be fairly simple to sort out. However, changes in circumstances could prove problematic. For example they may have been splitting mortgage payments when they first lived together, but one person may have then been made unemployed and therefore hasn’t contributed to the mortgage. It may not be considered fair, therefore, that this agreement would still stand.

Family law can be complicated, and can be even more so where cohabiting couples are concerned. There have been calls for a change in the law, and it seems as though this would be a sensible step considering the number of cohabiting couples these days. However, it is difficult to establish how exactly it should be changed, considering the differing circumstances of different couples and how they could change over time.

Andrew Marshall ©

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How to keep you kids safe online. Basic online safety tips

Posted on October 20, 2011 by moore

Internet Safety Basics for Children

The internet is great tool for children to use. It can be used for homework research, playing games, keeping in contact with family and friends and generally hanging out with their peers.  Although the internet is a wonderful resource for children it is also vitally important that they take care and keep themselves safe online.  This article outlines some basic internet safety tips that all parents should be aware of and pass on to their children.

Keep Personal Details Private

One of the key elements to staying safe online is keeping your personal details private. Make sure that you tell your kids and teenagers not to give out their personal details online. They should never give out email addresses, phones numbers, which school they attended, sport clubs or any planned trips or their home address to people they have only ever had online relationships with. If they give out these personal details they are opening themselves up to a number of potential problems.

Junk is Junk

Educate your children about spam texts and emails. Point out the signs and signals that flag something up as spam. If they receive spam show them how to delete and quarantine the material and explain that they should never reply to spam or use any of the tools that might come with the spam email.

You should never open emails from people you don’t know and you should teaching you children the same thing. It could contain a computer virus or worse an inappropriate image or video.

The Internet is not private

It is important to stress to your children that the internet is not a closed private space. They should not post videos, photos or comments online that they would feel uncomfortable with you as a parent seeing. Teenagers often feel that they can take risks online that they wouldn’t take in daily life as no one will find out. This is not the case and placing risky material online can leave them open to cyber bullying or blackmail.

Don’t befriend people you don’t know

One of the really important things to educate you children about is that they should never start friendships with people online that they don’t know offline. This is difficult but comes down to the old maxim of not talking to strangers.  Your children need to be aware that it is very easy for people to create fake profiles and not be who they appear to be online. Friendship requests on social networking sites such as Facebook & Bebo should only be accepted from people they know offline in the real world.

If you discuss these points with your children and talk openly about the dangerous nature of some activities on the internet then it should be easier to keep them safe online. Internet safety in many cases appears to be basic common sense to adults but you need to make sure your children and teenagers are informed about the basics of internet safety.

Tony Heywood © 2011

 

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A brief History of UK divorce law in the 20th Century

Posted on September 20, 2011 by moore

UK divorce law and family law has developed over the course of the 20th century. The initial pressure for reform came in the first decade of the century as the divorce law in the UK at the time was complex and expensive for most people. It meant that divorce was only a legal recourse for the rich and well connected. Until the middle of 19th century the only way to get divorced was via an act of Parliament and there were only 317 divorces in over 150 years.

Women were also much more restricted and disadvantaged by the law and there were many trapped in unhappy marriages. There was concern about the high amount of couples ‘living in sin’ owing to the difficulties and costs involved in obtaining divorce.

A Royal commission was set up to look into these issues and to reform the Victorian divorce law and to streamline the process. The Royal commission recommended that the divorce process should be simplified, streamlined and be far less costly.

The advent of the First World War and the improved position of women added more pressure for divorce and family law reform.

A Private Member’s Bill was introduced in June 1923. This bill led to the Matrimonial Causes Act made adultery by either husband or wife the sole ground for divorce. A wife no longer had to prove additional faults against the husband. The Matrimonial Causes Act which stated that in the event of a divorce, both partners would be treated equally.

In 1937 the law was amended again and now three other grounds for divorce were added. The private members bill introduced was introduced by A P Herbert. The new ground for divorce that were added to that of adultery were cruelty, desertion (for at least three years), and incurable insanity. However people were unable to divorce within the first three years of their marriage as this clause was included within part of the act.

Until the law changed again in 1969 it was impossible for a “guilty” spouse to divorce an “innocent” partner. As long as the innocent husband or wife took care not to be caught in adultery, he or she could effectively block the other’s divorce and remarriage. The fact that many marriages broke down on small issues was not reflected in the divorce law.

The Law Commission looked at these issues in the 1960 and reported in 1966. The aim was to update the law and remove the emphasis on marital offence as the basis of a divorce. When it was introduced in 1971, The Divorce Reform act made it much easier for a couple to escape a marriage. The Act created the so-called “quickie divorce” and introduced the principle of ‘irretrievable breakdown’ as grounds for separation and ultimately divorce.

The act also shifted the locations of the divorce hearing from the High Court to the County Court although initial allegations still had to be proved in court. This meant that in open court hearings evidence had to be given by the party issuing the divorce proceedings. Defended divorces still had to be heard in the high court.

A series of “special procedure” were introduced between 1971 and 1977 that allowed for a judge of rule on the divorce process via the papers and affidavits provided. Neither of the parties needed to attend and the only open part of the divorce was the issue of the degree. These special procedures have now become the norm in divorces in the UK.

The 1971 act is still the basis of divorce and family law in the UK and the current government has announced plans to review the current law to see if it reflects the needs of society forty years since the law was last amended.

Tony Heywood ©

 

 

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Why do people get divorced?

Posted on September 20, 2011 by moore

There are many reasons why people get divorced. This article explores some of the most common reasons that result in the end of a marriage. If you are looking for a divorce then you should make sure you consult a legal expert in family law.

ADULTERY
It will come as no surprise that adultery is an extremely common reason for divorce. However, research shows that many people are willing to forgive someone for cheating once. If the behaviour is common though, that often spells the end of a marriage. Adultery results in a lack of trust within a relationship

.DESERTION
There are times when one half of a married couple will up stick and walk away, possible with the other person unaware that the marriage was on the rocks in the first place.

ADDICTION
If someone is addicted to alcohol or drugs then it will inevitably have a major affect on his/her marriage. Addiction takes control of someone and means they are unlikely to function normally, resulting in them being difficult to live with and a whole host of other issues.

ABUSE
Abusive relationships are a lot more common that most people think. Most of the time they involve a man abusing his wife, but there are also many cases where it is the other way around. Abuse isn’t just physical, it can also be emotional.

PERSONAL DIFFERENCES
Different personalities and lifestyle ambitions is high on the list of reasons for divorce. There can be many reasons for this. Although opposites can attract, if a married couple are very different to each other, this can eventually become problematic. Different ideas of the lifestyle they want to live, and how they see marriage can be a major issue.

WORK
If one person is always at work and a couple never see each other, this can be a cause of friction. If one is being made to feel like they are less important than the others work they may feel unwanted. Differences in career goals can also be an area of strain.

FRIENDS & FAMILY
Although friends and family shouldn’t really have an affect on a marriage, they do have an affect on your life and this can have a direct impact on the marriage. For example, if a man is too busy spending time in the pub with his friends to spend time at home with his wife, she may become disenchanted. If someone doesn’t get on with their husband or wife’s family there will inevitably be problems.

CUTURE
If two members of a marriage are from different cultures it can be difficult to adapt. They may have to change their lifestyle to suit the other person and this can be difficult. Religion also comes into it. Someone’s religion can have a big impact on their life, and if a couple have different religious beliefs there can be issues around this.

FINANCE
Finance, and especially financial difficulties can have a massive impact on a marriage. This can particularly be the case if one feels that the other has made financial mistakes which they then have to deal with together. Guilt can also be a factor here; with one feeling guilty that they have caused these problems, and maybe not wanting to tell the other therefore making things worse when they eventually find out.

LACK OF COMMUNICATION
In many ways lack of communication isn’t the cause of problems in the first place, but it means problems can’t be resolved. If a couple don’t talk about their issues they are likely to escalate.

Andrew Marshall ©

 

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Family Mediation a Guide

Posted on September 20, 2011 by moore

Family Mediation is a process that couples can enter into when attempting to solve disputes about a separation or divorce. It stands outside of the court proceedings and is the main difference is that mediation is carried out by one mediator who works for both parties. This impartiality means that the parties work toward as resolution that is agreed by both of them and not imposed on them by the other party.

What Does Family Mediation Cover?

Family mediation is used to solve family problems that normally centre around matters to do with children, property and finances. There is no limit to what can be discussed in family mediation it is down to the parties involved. So if there are issues over who gets the dog or the book collection then this can all be discussed. Although separating couples tend to be the focus of family mediation you can also use the process to deal with disputes between parents and children, elderly and ill relatives, and access of extended families to children and issues that might arise about living arrangements and homelessness post separation. There are no boundaries in terms of areas covered the mediator will discuss with both parties what issues they wish to resolve and these will then be discussed and placed into the process if both parties agree.

Is Family Mediation Legal Binding?

The simple answer is no. The conclusions drawn at the end of family mediation are not legal binding, they are simply an agreement that both parties believe is the best way forward. They can be used a basis of a legal agreement but this would involve get a solicitor to turn them into a binding court order and then to have the order agreed by a judge. The aim of family mediation is to avoid going to court to solve problems and those involved hope that both parties adhere to the agreement without the need for legal redress.

Are Family Mediators Solicitors?

Family mediators are trained to be mediators and not lawyers. They will have an in depth knowledge of the law regarding divorce, separation and children but are not there to provide legal advice. As the mediator is impartial they can clarify points of law but not advise you on what to accept and reject. It is important that you seek legal before during and after the mediation service to make sure that you are fully aware of decisions you are taking.

Is Family Mediation Confidential?

Anything discussed in family mediation with a few exceptions is confidential. Only if a child was thought to be a risk or criminal activity was discussed is the confidentially agreement void. If mediation fails and the case ends up in court details of the discussions in the family mediation process cannot be used unless both parties agree to it. This doesn’t apply to financial information which can be passed on to solicitors and used in the court.

How long does family mediation last?

The length of time involved in the process varies depending on the nature of the problems and how complex they are to resolve. Each session is between one hour and one and a half hours. The whole process is normally concluded between one and six meetings with the family mediator.

What happens at the end of the process?

If the parties reach an agreement over the issues involved then a written summary is produced outlining the basis of the solutions. As already mentioned this document is not legally binding by a framework by which to move forward.

Family mediation aims to remove the cost, stress and confrontation from a separation or divorce. It uses a mediator to improve communication between the parties and reduce conflict. If runs in conjunction with good legal advice and should be considered if you find yourself in the unfortunate situation of a divorce.

For more information on family law.

Tony Heywood ©

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The Divorce Process in England and Wales

Posted on July 27, 2011 by moore

Are you thinking of getting divorced?

Are you going through a divorce?

Are you parents divorcing of maybe one of your family. This is a brief guide to the process of divorce in England and Wales. The article will outline the basic terms used and the process for getting a divorce in the courts in England and Wales.

When you are getting divorced in the courts of England and Wales the divorce process follows a set procedure and has to go through a number of stages before a divorce is finalised. If you have been married for less than a year, under law you cannot apply for a divorce but can seek a judicial separation.

The divorce process begins with one party making an application to the court for a divorce. The person who has made the petition to the court is called the petitioner the other person is called the respondent. Anyone else involved in the divorce are named the co-respondents.

The form required for the petition is the D8. If there are children involved then there is also the form D8A, this is the statement of arrangements. This form outlines the current arrangements for the children. There is a fee for filing the divorce petition, the fee is currently £150.

The divorce petition must outline the reasons for divorce and there are currently five categories that form the basis for the divorce process. The five types are:

Adultery by the respondent

Unreasonable behaviour

Desertion by the respondent for two years or more

Separation for two years and the parties agree
Separation for five years

The most common clause used in divorce proceeding is that of adultery. In 2007 29% of all divorces where down to extramarital affairs.

Once the divorce petition, court fees, statement of arrangements and other paperwork has been presented to the court the respondent has 29 days in which to respond. If the respondent agrees to the statements in the petition then the petitioner must send an affidavit to the court. The affidavit is a sworn statement by the petitioner to the accuracy of the details in the D8 divorce petition.

Once the court has received the sworn affidavit the papers will go before the district judge who will decide if there are grounds for a decree. If they agree then a Degree Nisi is issued.

Six weeks after the issuing of the Degree Nisi the petitioner can apply for a Degree Absolute. Once the Degree Absolute has been issued then the divorce has been granted. If the petitioner does not apply for the Degree Absolute, than the respondent can apply for it via a court order. This can only be done three months after the initial six week period has elapsed.

For the last full year that divorce statistics are available the number of divorces fell to a 29 year low. In 2006, 132,562 in England and Wales where granted divorces, the lowest figure since 1977. It is too early to see if this is a change in the rate for the long term or a short term blip.

You should also seek legal advice about a divorce. Visit Stone King – Divorce Solicitors in Bath

 

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Divorce in Bahrain – The Issues

Posted on May 31, 2011 by moore

Like all legal matters the law surrounding divorce will vary considerably from country to country and across differing cultures. International divorce can therefore be an extremely convoluted matter to resolve when dealing with spouses from differing countries, especially when the custody of children is also an issue. However, the issue is becoming more prevalent as people travel more, but also as the trend for divorce is on the rise. This article looks at some of these issues taking the example of Bahrain to illustrate the contrast of legal processes overseas.

A fundamental issue in international divorce is establishing where, under which jurisdiction, a case should be heard. In general it usually advised that divorce should be sought in the country that is most relevant to the case being heard, which will tend to be the country of either the claimant’s or their spouse’s residence. This approach minimises the ability for the spouse to then seek a ruling in another country which may then challenge the original ruling. However, in cases where couples live apart and seek rulings in different countries, the jurisdiction of the home country of one spouse may not be honoured in the home country of the other. In Bahrain for example, foreign court rulings will not be honoured if they contradict the local laws within the country.

For cases being heard in Islamic countries such as Bahrain the type of court that will have jurisdiction over a case will depend on the faiths of those involved. If one of the parents involved is from Bahrain then the case will be heard under Sharia Law. However there is then the distinction between the Suni and Shia courts as each sect has its own interpretation of Sharia law. The decision as to which of these courts the case should be heard in will usually be specified within the initial marriage contract but if it is omitted from the contract then the husband’s court will take precedent. There is also the option of hearing the case in a civil court if the parties involved are non-muslim.

To understand the laws surrounding divorce in any given country it is important to remember the historical and religious context in that country of the institution of marriage. For example, in Bahrain marriages historically took place within or between tribes within a strict Islamic framework in which the men and women were segregated throughout the proceedings until the marriage was finally confirmed (between the groom and his father in law). Men were traditionally permitted to take up to four wives and the male and female roles were well defined as providers and homemakers respectively

Although these traditions have significantly evolved to keep pace with the modern world they have undoubtedly left a legacy which favours the rights of the man over those of the woman in comparison to westernised legal frameworks.

A Bahraini husband of the Sunni faith may still be able to divorce his wife without going to court by simply by quoting “I divorce you” three times (the triple talaq) although in practice further conditions (the need for witnesses etc) may apply and the Shia interpretation of this law can differ considerably. Women in Bahrain however must go to court to gain divorce regardless of the reason and/or the behaviour of the husband and will need to present a recognised reason for their claim, such as maltreatment or financial neglect on the husband’s behalf. Even then the husband is likely to be granted a period of grace to resolve the issue with a divorce only being granted if he does not succeed.

There is no specific family law in Bahrain to guide rulings on divorce and child custody. Decisions are currently made on a case to case basis and left to the discretion of the judge under the guidance of their interpretation of Sharia law. Consistency can therefore be lost from one case to another.

In general priority will be given to the father in regard to child custody matters. The mother will generally get custody of girls up to the age of nine and boys up to the age of seven, although when the children reach these ages the custody will often switch to the father. Furthermore, a child has the right to choose which parent they live with once they reach what is known as the age of discretion, although, this concept has no defined age assigned to it and therefore is again at the discretion of the judge. A father will have of the obligation of supporting their children financial irrespective of which spouse they live with.

Decisions can be heavily influenced by the concept of ‘incompetence’. If either party is deemed to be incompetent then the custody of their children can be awarded to the other party. This concept introduces a further area of ambiguity and discretion as a judge’s definition of incompetence could include any behaviour which they deem as contradicting Sharia law or accepted Muslim behaviour. Whilst the definition often covers serious breaches of law it has in practice be known to include marrying a non-muslim or even being a non-Muslim.

The issue of judge discretion and resulting inconsistencies has caused a rift in Bahraini society with human rights groups and groups representing women’s rights calling for the introduction of a Personal Status Law which would provide judges with a single legal framework and reduce the degree to which discretion is used. The more traditional Islamist elements on the other hand argue that the existing laws are determined by the will of God and therefore should only be interpreted by religious leaders, not politicians.

Taking the example of Bahrain it can be seen that divorce legislation can vary significantly sometimes even within a country, never mind internationally, as a result of traditions, social history and religion. Therefore it is paramount that if you seek the right advice from experienced and local Bahrain Divorce Solicitors before you start any such proceedings.

© Stuart Mitchell 2011

 

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