The formation of a family conventionally starts with the union of two persons through marriage. In a marriage, the couple shares responsibilities in many aspects --- child rearing, properties, home utility bills, taxes, and the likes. They also share responsibilities in resolving various problems encountered during the relationship. To most couples, this sharing of responsibilities is what they call commitment to the relationship, a commitment to their spouse. However, many couples around the world experience troubles in handling these responsibilities.
Such experiences sometimes lead to their disillusion to the commitment they vowed to revere when they entered into the married life. In many cases, these couples end up filing a divorce. Divorce, which is sometimes referred to as the dissolution of marriage, “is the ending of a marriage before the death of either spouse. ” Divorce is common in many developed countries such as the United States, South Korea, Canada, as well as in countries within Europe, except for Malta where civil divorce is banned.
Marriage, being a legal act, should also be dissolved through legal action. In some cases, prenuptial agreements or postnuptial agreements, when applicable, are given importance in determining the terms of divorce. These terms refer to the rightful partition of the responsibilities which were supposed to be carried out within the marriage. In a divorced state, the couple is still liable to hold those responsibilities, this time through their individual efforts.
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A recent survey of matrimonial lawyers in the United Kingdom revealed that the main causes of marriage meltdown are: extra-marital affairs, abuse (physical and/or mental), boredom, lack of sex, financial disagreements, alcohol/drug abuse, debt, workaholism, and hobbies (Wikipedia). Religious affiliations of married couples also have implications on divorce. For Muslims, divorce may be granted, but it is discouraged. Judaism, on the other hand, has regarded divorce as a fact of life. It generally preserves its principle that it is better for a couple to live separately, through divorce, than live together in a life of distress and strife.
The Roman Catholics believe that marriage is permanent during the life of spouses. Although it allows divorce, it does not approve of remarriage after a divorce if the other spouse is still living. This rule, however, is not observed in the Eastern Orthodox Church and many Protestant churches, where remarriage of divorcees is allowed even with a surviving former spouse, but under certain conditions. Meanwhile, Dharmic Religions are not cognizant of the concept of divorce. Divorce in the Republic of Ireland The Republic of Ireland is mostly populated by Catholics.
In their 1937 Constitution, divorce was not allowed. However, in their more recent regulations, divorce in Ireland became possible under certain circumstances. Divorce in Ireland follows the rules stipulated in the 1996 Family Law Act . It involves a process where the following conditions should be met first: the spouses should have lived apart for at least four years of the preceding five years; there is no reasonable prospect for reconciliation; and there is proper provision for the spouses and dependent children.
The spouse who initiated the filing of divorce is called the applicant, and the other is the respondent. The applicant should have a solicitor who, before the divorce proceedings begin, will discuss with the applicant the possibility of reconciliation or judicial separation as an alternative to divorce. If the court sees that there is really no possibility of reconciliation, trials and hearings will proceed to discuss the terms of the proposed divorce.
During the trial period, the court may issue orders relevant to the 1996 Family Law (Divorce) Act which include: a safety order, barring order, temporary barring order or protection order; an order for the custody, access or maintenance of a dependent child; an order to protect the family home, its contents or any money from its sale. The court may also order either spouse to pay maintenance for the other spouse and any dependent children, the terms and conditions of which, the court will decide.
After the divorce is granted, the court is authorized to decide on the terms and conditions for the payment of maintenance of the spouse and any dependent children, giving consideration to certain conditions. The court also decides on the partition of assets as well as on disputes and claims on properties. Child custody of any dependent children under the age of 18 will also be subject of court decision. Divorce in New York, USA The Divorce Law of New York initially deals with residency and filling requirements.
Divorce in New York may be maintained only when: “the parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding; or the parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding; ort he cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action; or the cause occurred in the state and both parties are residents thereof at the time of the commencement of the action; or either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. ” Under the Divorce Law of New York, the spouse who initiated the filing of divorce is called the plaintiff while the other is the defendant. The grounds for divorce are also spelled out in the Divorce Law of New York.
This include: “the cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant; the abandonment of the plaintiff by the defendant for a period of one or more years; the confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant; the commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant; the husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment; and the husband and wife have lived separate and apart pursuant to a written agreement of separation…” Spousal support in a New York divorce is not an automatic obligation of either party; it is rather provided on a case-to-case basis which may be agreed upon by both parties, or upon the discretion of the court. The court is also authorized to decide on the child custody and support to any dependent child of the divorcees.
Computation for child support is based on the Income Share Model, in which child support is divided proportionally based on each parent’s income. Under the New York Divorce Law, guidelines have also been set with regard to the provision of child support. Ireland and New York Divorce Laws: A Comparison Considering the fact that Irish people are mostly Catholics, divorce is relatively difficult to obtain in Ireland than in New York, which is predominated by Protestants. It may be noted that the Irish Divorce Law specifically mentions of processes that need to be undertaken to possibly settle the couple for reconciliation. As mentioned earlier, Catholics believe that marriage is permanent during the lives of the spouses.
Perhaps working within this premise, the Irish court instills in the legal process of divorce actions that should be taken by the State in order to preserve marriage, and consequently the family. This attempt on the possible reconciliation of the husband and wife has no mention in the New York Divorce Law. While both laws discuss in detail the rules to abide by in the partition of assets and properties, as well as of responsibilities, certain conditions differ. One highlight is on the provision of spousal support. The Irish court obligates spousal support while the New York court does not. This ruling may be attributed to the fact that the United States of America is a developed country while the Republic of Ireland is still in its developing stage.
This implies that in the United States, both spouses are assumed to have stable incomes and thus do not require financial support from each other. Irish couples, on the other hand, them being in a developing country, would mean needing of spousal support should their marriage be dissolved so that the spouse with less income can cope with the responsibilities left to him/her by the other. However, these two laws seemed to have dealt more on the partition of properties than on the rules on determining child custody. In both laws, child custody is to be decided upon by the court, but no guidelines on the court’s basis of its decision on the issue were discussed.
It is noteworthy to mention that in most, if not all, divorce cases, the couple’s children are the ones most affected. A recent study showed that children of divorced parents have higher potential of having behavioral problems compared to children in intact families (Wikipedia). Various studies further revealed that the following are most of the time observed in people from divorced families: higher rates of alcoholism and substance abuse; occurrence of clinical depression attacks; and commission or attempt to commit suicide (Wikipedia). Though studies have been conducted on the effects of divorce to children, no remedy has been proven to be effective enough to lessen the incidence of such behaviors from children of divorced parents.
This brings us to another observation that the laws of Ireland and New York on divorce do not present steps to be taken to ensure the protection of the children’s best interest. Conclusion Divorce laws vary from one country or state to another. In some parts of the world, the issue of divorce is still a topic of debate --- whether to approve granting of it or not. For married couples who have become unhappy in their marriage, divorce is seen as an answer to end their distress. To others, it is viewed as a way to turn backs against marital problems. Many other arguments have cropped up about the issue of divorce. Depending on a person’s beliefs and biases, these arguments may be valid to some, while to others they are not.
The varying rules of Ireland and New York on divorce have been put into law based on the needs and beliefs that each state deem are applicable to their respective people. It is good to note that both laws have particularly specified various scenarios that may occur after during divorce proceedings and after the divorce has been granted, and have spelled out how issues and disputes will be resolved. However, the laws have focused more on the resolution of disputes over assets and properties. Issues on child custody and support also need to be discussed in a more in depth manner so that the children’s welfare is also given equal importance. In fact, children’s welfare should have been given highest priority since the greatest effects of divorce is manifested in the behavior of affected children.
Although it has been said that the child custody and support will be decided upon by the court, it is also imperative that specific rules be spelled out on what the court will give primary considerations to with respect to these issues. It may also be useful, though not yet scientifically proven, to include rules on procedures that the children will have to undertake to be able to cope with the aftereffects of divorce. We do not question the authority and integrity of these courts in their decisions on child custody and support. What is being sought is the clear definition of the law on how child custody is decided upon. In addition, it is also better to see in these laws the specific measures that the court may order for implementation that will lessen, or possibly prevent, the occurrence of adverse behaviors of children whose parents have divorced.
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