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Individual differences |
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Divorce in some jurisdictions is a relatively recent phenomenon. In Canada there was no divorce law until the 1960s. Before that the only way to get divorced was to apply to the Canadian Senate where a special committee would undertake an investigation of a request for a divorce and if they found that the request had merit, the marriage would be dissolved by an Act of Parliament.
Divorce (in Civil Jurisprudence) - Article in the 1908 Catholic Encyclopedia
Great Britain Edit
In Scotland, until 1560, when papal authority was abolished by Act of Parliament, the law on marriage was the canon law. This did not recognise divorce. With the Reformation, the common law recognised divorce for adultery and, by statute in 1573, desertion was also recognised as a ground for divorce. Thereafter, until 1830, the law was judicially developed by the Commissary Court of Edinburgh. In 1830, jurisdiction in divorce actions passed to the Court of Session. The grounds, however, remained the same until the development of the concept of the matrimonial offence resulted, in the Divorce (Scotland) Act 1938, in the addition of cruelty, sodomy, and bestiality as grounds; the concept of no-fault divorce was introduced in the same Act with the addition of ‘incurable insanity’ as a ground.
Growing recognition that ‘fault’ was not necessarily at the root of marriage breakdown led to the passage of the Divorce (Scotland) Act 1976, which provided that ‘irretrievable breakdown’ was the sole ground of divorce; but, contradictorily, went on to provide that this could only be evidenced by one of five sets of facts: adultery, desertion, unreasonable behaviour, two years separation plus the defenders consent to divorce, or five years separation. The third of these came to be so generously interpreted by the courts as to form the most popular ground for divorce for a time. Subsequently, the Sheriff Court acquired a concurrent jurisdiction in divorce actions; and the introduction of ‘do-it-yourself’ divorce has led to a situation in which the vast majority of divorces in Scotland are uncontentious; the very few exceptions mostly being those in which there is financial argument.
England and WalesEdit
Legal recognition of divorce in England came long later. Prior to 1670 a marriage could only be ended by the Church courts if it could be shown to have never existed in the first place, either through inability to consent (e.g. insanity) or by want of capacity to marry (e.g. precontract, consanguinity, the two parties were related by a previous marriage). A marriage could also be ended if one of the parties was impotent or frigid when the marriage was contracted. It was also possible to get a legal separation from the church known as divorce a mensa et thoro (from board and hearth). Grounds for the separation included adultery, cruelty and heresy, and it meant that any offspring were not rendered illegitimate. However neither spouse could remarry until the other had died. In his 1990 work on the subject, Road to Divorce: England 1530-1987, the late historian Lawrence Stone was one of the first to point out that the legal barriers to divorce were not an absolute bar against remarriage, since the short life expectancy of the time guaranteed that one spouse would certainly outlive the other (and would soon be free to marry again). If a prior marriage were found by the courts to be void ab initio then both parties could freely remarry, since their "marriage" was not, in fact, ever valid.
In 1853 a Royal Commission made recommendations on how to improve the procedure of getting a divorce. In 1857 the Court for Divorce and Matrimonial Causes, based in London, was established, taking over the divorce duties of the church courts. Men could obtain divorce for adultery, but women had to prove cruelty or desertion, in addition to their husband's adultery. In 1923 women were allowed to use the same grounds for divorce as men. In 1969, after much debate, 'irretrievable breakdown', on the basis of one of five grounds became the test for divorce.