Divorce in law, is the action by a court that partially or totally dissolves a marriage. Divorce in the more common sense is a total dissolving of the marriage that leaves both parties free to marry again. A partial dissolution is usually called a legal separation and means that the husband and wife are no longer bound to each other but are not free to remarry. An annulment erases a marriage by declaring that it was not a valid contract from the beginning.
When a husband and wife decide they no longer wish to remain married, it is necessary for them to apply for the divorce to a court within the state where one or both are residents. In the United States each state has laws that define the valid grounds for divorce. Adultery, or unfaithfulness, is considered a ground for divorce in most states, as are desertion and cruelty. Since 1970, California has recognized two grounds for divorce: incurable insanity and irreconcilable differences that have caused the irremediable breakdown of the marriage. Other grounds recognized by various states include habitual drunkenness and conviction for committing a crime.
The U.S. Supreme Court has decided that under the Constitution each state must recognize another state's divorces if the divorcing party established a genuine residence within the state granting the decree. However, the laws concerning the length of time one must be in a state to establish residence, the grounds for obtaining a divorce, and the length of time one must wait between submitting his first application and receiving his final decree, differ greatly from state to state. Therefore, a person in one state will frequently go to another state to seek a divorce. For example, if a person lives in Nevada for six weeks, he is considered a resident and has the privilege of applying for a divorce, and his final decree can be granted on the same day. A person from California, where it takes a year for a divorce to become final, may go to a state such as Nevada to get a quick divorce. Such a course has been found risky because there are many reasons why a divorce obtained in this way may not be recognized in other states. For example, the divorce law in New York limits out-of-state divorces by refusing to recognize such a divorce if the divorced person resumes residence in New York shortly thereafter.
When the court grants a divorce, it may also decide how the property of the couple shall be divided, whether the man must pay alimony to the woman, and who will have custody of the children.
Under early English law total divorce could be granted only by Parliament, and most marriages were dissolved through legal separations granted by ecclesiastical, or church, courts. In 1857, Parliament gave the English civil courts the power to grant annulments, separations, and final divorces. British and U.S. grounds for divorce are, for the most part, the same.
In Canada all the provinces except Quebec and Newfoundland have their own divorce laws, with adultery usually specified as the sole grounds. Residents of the two provinces that have no divorce laws must petition the dominion Parliament for divorce.
Because of the opposition of the Roman Catholic Church to divorce, countries with a predominantly Catholic population usually have strict laws concerning divorce. In Spain and Ireland, for example, the courts may issue a legal separation but may not grant a final divorce. This was also true in Italy until 1970, when a law permitting final divorce was passed.
In proportion to its population, the number of divorces granted in the United States each year far exceeds that of any other country. The divorce rate was only 1 per 2,000 population in 1890. The rate slowly increased until there was 1 divorce per 1,000 population by 1911. The rate of increase continued until there were 2 divorces per 1,000 by 1940. At this point, primarily as a result of hasty war marriages, the divorce rate increased quite rapidly between 1940 and 1946, when it hit an all-time high of 4.3 per 1,000. Thereafter the rate slowly decreased to between 2 and 3 per 1,000. In recent decades it has increased dramatically.
Many sociologists believe that high divorce rates are due at least partly to the high degree of urbanization and mobility within the society. Although some people think that stricter divorce laws would cause the rate to go down, others favor better education in the requirements for a successful marriage and professional counseling of couples considering divorce.