Divorce as an International Phenomenon - Literature review Example

Literature Review Divorce as an International Phenomenon A divorce is the dissolution or termination of marital union between two people thereby cancelling their legal duties and responsibilities within the marriage under the rule of law of a particular state. Itis different from an annulment or a legal separation. Divorce procedures may vary in different countries but it should be sanctioned by the court or any other authority in a legal process. The significance of divorce ratesall over the world has been discussed greatly in Everett 2013a major phenomenon and has raised serious concern to researchers, vast studies on the issues have been done, estimation of statistics and different solutions suggested for this common occurrence. These researchers intend to suggest serious steps for helping families going through divorces by executing results of their studies to legislators, authorities and the international figures.1 In a research conducted by Kaslow2013the author showed that the rising number of divorce around the world are caused by a variety of economic, cultural and social factors that are negatively affecting the marriage institution. Various cultures all over the world has started to embrace divorce among the population and providing for the rights of the women and children in the divorce. Most of the legal and economic blunt all around the world is seen to be borne by the men in payment of court fees, alimony and maintenance.2 In another research on the international family laws byBaarsma 2011 and in Stark 20133, it has been established that various countries have enacted legislations and legal procedures to help the courts in the dispensation of divorce matters. Some countries have also taken legal and social steps to help reduce the high rate of divorces in their countries. It has been suggested that governments should give consideration to the implementation of international laws on matters of personal status law together with local regulations and monitoring these laws effectively. The governments have been urged to provide information and counselling programmes on divorce and the equal rights and responsibilities of marriage. According to the Hague Convention relating to the settlement of the conflicts of law and jurisdiction as regards to divorce and separation, a divorce can only be allowed if the national laws of a country where the divorce petition is lodged allow for divorce, this has been modified by various states legislation to allow that a divorce can only be issued in the state where the marriage was celebrated. In Hodson, Blackburn &Hodson, 2012 the book harmonizes the use of the international family laws with the national legislations of various states that have domesticated the international laws and harmonized them into their legal frameworks it provided that divorce under international laws is governed by the laws of the parties’ common nationality or the parties’ common residence or the laws governing the state where the marriage was celebrated.4 Various studies and research done in earlier years as established in Popenoe, 1988 in Family Change and Decline in Modern Societies were emphasized by Cox & Demmitt, 2013 to show that divorces internationally have increased from the social revolution culture of the changing gender roles around the world.5 Women around the world have evolved from full time housewives to working part-time or full-time in the workforce. This has made her more economically stable and hence can provide for her family. Studies in different countries have shown a rise in divorce rates where a wife earns just as much as the husband and can be said to be self-sufficient. The rise in the educational levels of women and various government empowerment programmes in various states have also helped top alleviate the status the women in the society as well as educate and inform them on their rights and the various legal channels available to them.6 It is highly obvious that divorce is a widespread event in the international arena. Due to high mobility, globalization and cultural co-existence this has been a factor in establishing international family laws as well as various national legislations governing the institution of marriage in various countries with different cultural and religious backgrounds. This helps in governing the responsibilities and duties of the various parties after the divorce is finalized while still catering for the children involved. Historical Background of Divorce In Saudi Arabia, the legal system is based on sharia law derived from the Quran and the traditions of the Islamic Prophet also known as Sunnah. Other sources of sharia law include the scholarly Islamic opinions developed after the death of the prophet. Interpretation by the judges is influenced by medieval texts of the literary scholars of Islamic Jurisprudence. Sharia law is the considered the primary source of law in the family and personal status area among others. The Basic Law of the Kingdom therefore did not therefore guarantee gender equality which is built into the kingdoms governmental and social structures and is integral to the country’s interpretation of Islam that views the inequalities between men and women as a balance between the responsibilities prescribed in Islam necessary to uphold honor and family values and not as discrimination. The aspect of religion and the application of sharia law are further discussed in Religion and Human Rights: An Introduction by Witte & Green 2012.7 Literature review on the history of divorce in Saudi Arabia has established various remarkable facts on the family as unit and the role of women in the traditional society that are worth looking into depth. Most literature has established the importance of family like in Thompson 2014.8The family was considered the most basic family unit that consisted of the nuclear a well as the extended family; it was considered the main basis of personal identity and established individuals identity and loyalty within the society. Families socialized within their own circles and marriages were also arranged this way. The man formed the identity of the family and the children were considered his. In the traditional Saudi extended family structure, kins were related through the men only and this is described as a tribal and patrilinealdescent. Laws relating to matters of marriage, divorce, children and inheritance fall within the general jurisdiction of the Sharia courts. In the book by Keddie, 2007 and Voorhoeve, 2012 on the history of the Middle East and the status of women,it explains that polygamy allows a man to take up to four wives for marriage and can unilaterally divorce their wives without offering any legal justification.9Personal laws in Saudi Arabia had not been codified and the character of the family was in line with the Sharia teachings, Marriage was taken like a civil contract rather than a sacred institution, the contract had to be signed by witnesses and specified the amount of money referred to a mehr10to be paid by the husband to the wife. In some cases, the contract may include an agreement for additional payments in the event of divorce. However, acouple could reject the mehr and only a token of the money required to satisfy the legal requirementsthat validate the marriage contract would be given. Some contract contained a provision that would providea wife with the right to divorce her husband if he took a second wife. A Saudi woman using the contract may initiate and obtain a divorce from her husband if he had granted the right to divorce at the time of signing it. However, this may be annulled in the court if it is established that stipulations in marriage contracts are deemed contrary to Sharia. The courts can grant a divorce where a petition is presented by a legal guardian of the woman even without her approval , this was established by the divorce decision upheld by a Riyadh Court of Appeals in 2007 and a case law in 2005 by the Cassation Court of Fatima Azzaz who was legally divorced from Mansour al-Timani her husband after her half-brothers claimed that her husband had misrepresented his tribal affiliation when he asked for a hand in marriage and this was detrimental to their family reputation the courts issued a divorce.11 A woman kept her maiden name after marriage because legally she was still considered to belong to her family of birth all through her life but she became part of the husband family after marriage, The wife also got to retain all her personal property after marriage as a show of her independence from her husband’s control under the Islamic system.12 After a divorce, a womans closest male relative, such as a father or brother, was legally obligated to support her. This was to protect her and preserve the family honor as well as preserve her sexual purity. After the divorce the man has the obligation to provide support financially to the wife for a certain period. In Saudi Arabia a woman could only obtain a divorce with her husband’s consent, the courts allow the wife to purchase her freedom from a consenting husband with a sum that is equal to her doweror if her husband has harmed her, he has been unfaithful, abused, deserted her, or engaged in criminal activities.After divorce she must wait three months before remarrying to avoid uncertain paternity in case of pregnancy.Children legal guardianship went to the father or his family although the mother was given custody of minor children until the age of seven years and nine years for the boy and girl respectively.This made it difficult for the Saudi women to obtain a divorce in the courts. In the article Have, Highest Level of Freedom Women, And to Exercise Their Rights by Doumato,13 Various reforms have taken place in the personal status laws in the kingdom starting with the 2007 reform in the Saudi citizenship laws that allowed non-national women who had been divorced by Saudi husbands to apply for Saudi citizenship without first seeking consent from their ex-husbands. Saudi women nationals married to non-Saudi husbands however cannot pass citizenship on to their children or spouses but their sons may apply for citizenship after attaining the age of 18. The government has the right to revoke a foreign woman citizenship upon divorce. A royal decree was issued in 2004 to affirm the principles of equality in all matters relating to Saudi nationality between men and women. In divorce cases a woman’s identification must be verified by a guardian who in most cases may be her husband and this proves detrimental in the courts where a man’s word is taken in higher regard. Another major milestone in the development of Saudi laws was seen in 2000 when the kingdom ratified the CEDAW (UN Convention on the Elimination of All Forms of Discrimination against Women) with reservations stating that the kingdom is not obligated to observe the terms of the treaty that contradict Islamic law.14 This was view of incorporating human right in the laws was further expounded in the dissertation by Al-Rodiman 2013 on Human Rights law and Sharia application in Saudi Arabia.15 A government-affiliated group called The Saudi Human Rights Commission, has made efforts together with other human rights groups to raise the age of marriage. This was after cases of child-brides have made national and international headlines like in 2009 when an eight-year-old girl made the news for getting a divorce from a 50-year-old man that was her husband, a marriage that had been brokered by her father to settle old debts. 16This incident sparked a public debate regarding whether to establish a minimum age for marriage. This was followed up by recommendations in 2010 to the justice ministry and the consultative Shoura Council that is the government advisor on new laws to establish a minimum age for marriage and make child-brides illegal. Traditionally in Saudi Arabia the rate of divorces was low because, the children were attached to their mothers and when they were grown this bond secured the mothers a place of permanence in the husbands family. In addition, a marriage was often contracted by an agreement between families, uniting families seeking to expand their circle of alliances and boost their status; therefore a successful marriage was in the interest ofboth the husband and wife. Also in Islamic laws, the inheritance laws guaranteed daughters and wives a share of inheritance, so that many women personally held significant wealth this ensured the economic independence of the woman. Increase in Divorces percentage Various reviews and statistics have been put forward by the Saudi Arabian authorities on the rising rate of divorce in the kingdom with over sixty percent of marriages ending in divorce within the first year of marriage. The Ministries of Justice and Social Affairs is working on innovative solutions to address the rising number of divorces.an obligatory requirement of marriage counselling for young couples before marriage has been proposed by the council of ministers. The marriage contract will only be issued aftera maritaltraining certificate is presented. The government together with association for family affairs is to soon launch a workshop to equip couples who are planning to get married with knowledge on how to handle conflict arising within the marriage. The ministry also provided statistics on the rise of divorce cases and Khula17where a wife demands a divorce from her husband in return for payment of an agreed amount of money and a return of her dowry. The Journal of divorce and remarriage in the UAE Al Gharaibeh& Bromfield 2012 stated that women in Saudi Arabia have been empowered and have started exercising their rights, legal scholars have established the role of women and their legal rights in petitioning the Islamic courts in securing those rights and seeking redress. The awareness of equal rights has been associated with the high rise of divorce. There is less media coverage on issues of divorce and divorce initiated by men are rarely recorded hence the actual divorce rates may be underrated.18 Data prepared by the economic research unit at Al-Eqtisadiah newspaper showed that half of the couples that get marriage get a divorce after one year of marriage. The study showed an upward trend since 2010 in divorce cases.Various statistics have shown that the number of divorces filed is half as many as the marriage celebrated in one day. These divorce rates are higher in younger couples who marry early but also divorce often and soon after marrying. The numbers were also higher is couples that are both from Saudi. The divorce cases were calculated through comparing the total population of the number of men above the age of 15 years. The high divorce rate has also been associated with the fact that before signing the marriage contract the two spouses are unknown to each other and sometimes only meet during the wedding. Due to this conservative way of pre-arranged marriage and limited acquaintance between the couple, the modern youth may often feel dissatisfied leading to divorce than those who have possibly had the opportunity to interact before their engagement. Professor Fawzanadded that, since few couples get the chance to be acquainted with each other before getting married the chances of incompatibility is high and this leads the husband in the involvement in illicit relationships leading to divorce as outlined by 38 percent of divorcées. This incompatibility and misunderstanding leads to separation.19 The text in Jeanes 2012 Handbook of Gender, Work, and Organization explains the relationship between work, wealth and divorce rates across the world.Due to oil in the Saudi kingdom growing wealth and unification of the kingdom has affected various aspects of the family life. Separation between home and work has affected the functions of a family. 20This was explained in the Psychosocial Impact of Polygamy in the Middle East of 2014, nevertheless an important role is played by the family in the determination of an individuals status in society and their position in the labor market. Planned marriages have been seen to be going extinct especially in urban areas with educated adults. This has led to break-up of the traditional extended family structure with a rising ownership in private property leading to the weakening of kinship solidarity. The Unprecedented social and economic upheavals that have taken place in Saudi Arabia have introduced changes to the social fabric. Divorce has become more tolerated in the modern society. The urgent need to understand the rise of divorce cases in the early years of marriage has pushed the policymakers to try and identify patterns that may help slow these rising cases. 21Given the high status in which family is regarded in this culture, the kingdom has a responsibility to ensure that divorce is the last resort to the couples. This has led the kingdom to establish reconciliation committees and specialized court to speed up ruling in divorce cases and finalize litigation procedures. Reasons behind the Increase in Divorces There is a number of reasons for the increase in divorce rate, public discussions in the media and articles by Fatanay 2013,22 has clearly outlined some of these causes that include financial factors, problems may occur where a husband refuses his wife to work and may at times even force her to quit her job so as to stay at home and depend on the husbands salary. Issues have also arisen where the husband wants to control the salary that the wife is earning. Statistics have shown that this has contributed to over sixty percent of divorces in Saudi Arabia, due to the discrimination of the wife by her husband. According to Abdullah Al-Fawzan, a professor at King Saud University, he stated that financial problems are also directly related to the issue of polygamy and is responsible for up to 55 percent of divorces in Saudi Arabia. The financial constraint in some polygamous family where the man is unable to maintain all his wives and children has also been a factor in high divorce lead to the loss of trust, sincerity, and cooperation among the family members leading to failure of marriages.23 Violence is also a major contributor in the rising rate of divorce in the kingdom a study conducted by Dr. Ebtisam Halawani showed that women left their spouses due to ill-treatment and violence that may be verbal, physical or emotional by their husbands. The abuse occurs mostly because the women are not aware of their rights and some men’s adherence to deviant customs and traditions that are not religious. Some male dominated families are oblivious to the rights of women and hence deprive them off their privileges. This kind of discrimination has led to divorces in areas where women continue to be educated and empowered; this was according to research done by the National Family Safety Program. Non-governmental organizations have blamed the use of restrictive practices, dominant traditional customs and sexist laws like not allowing women to leave their home without a male company. Some domineering husbands still enforce this tradition on their wives thus restricting them to the house without leaving. This law that prohibits a woman from conducting her business without a male guardian has been said to violate human rights by many activists and NGOs. The strict social norms and government restrictions continue to make women unhappy and thus to can be said to contribute to an increasing number of divorce cases. Activists have insisted on the development of Islamic jurisprudence and positive laws to update and adapt with the current changes in social context including educating women and employment of women. This is the view taken by Mir-Hosseini, 2013.  The reasons behind an increase rate of divorce in Saudi Arabia can be seen to emanate from empowerment, education and globalization. Many scholars in different Muslim states have affirmed the principles of the different sexes without conferring authority to one sex while discriminating the other. They have called for upholding of human rights thus respecting human dignity and ensuring the advancement of the nation and its people. Effects of Divorce on Wives and Children The effect of divorce is felt by all the parties, the children are the most affected in case of a divorce.in Saudi Arabia a marriage is a whole family affair and therefore the whole extended family is affected by the divorce of a couple. Sharia law has put in place various legislations relating to maintenance of a divorced spouse and the custody of children. Literature review for this significant social trend makes points clear. The survey of the accomplished studies regarding the effects of divorce on wives and children in Saudi Arabia shows interesting results and a justifiable significance of looking at the issue further. Full insight has been given by AlMunajjed& Insight 2010 in their article on the risks and implications of divorce in the Middle East.24 The family is the basic social unity in Saudi Arabia through which one acquires social identity and achieves economic security and social support. There is mutual commitment and interdependence between family members and thus divorce is seen as an emerging social problem that is affecting negatively the sanctity and well-being of the family members. Studies have shown that children undergo damaging impacts on their emotions and mental development if there is parental conflicts and divorce. This sometimes can lead to various behavioral disorders like depression, poor performance in school, substance addiction, and even aggressive behavior in these children.In his study on impact of family disintegration and hostile home environments, Dr. Al Sanie, a professor of psychology, found that instability of the familysituations during a divorcemade the children more prone to deviant behaviors and addictions. This plight of young adults from divorced family has also been further grounded by Kaslow 2013.25 There is a positive aspect of divorcewhere a wife may be a victim of a physically or emotionally abusive relationship. However this may be short-lived whereby on some divorce cases, women may suffer physical and psychological abuse from their ex-husbands or even the male members of their family. They may be declined alimony as the husbands rarely face any legal penalty if they do not pay child support or maintenance; children are taken from their custody and they face social and economic discrimination. Women with low incomes or those that weredependent on their husbandssuffer from discrimination as well as social stigma. Ibn 201226made a contribution on the enforcement and securing of the financial rightsof a woman in divorce as a big challenge in Muslim countries as opposed to western cultures. After a divorce is finalized the woman is no longer entitled to the husbands property even after his death, the property of the woman applies the same rule to the man. However, if the divorce was pronounced during the husband’s death-illness this rule is not applicable and the woman is entitled to inheritance after the death of the man. In Hefner 2011, Family laws do contain legal rights and protections for women during divorce, however, these are not fully implemented by courts, due to the patriarchal norms and traditions of the society that often surpassthe rules and regulations. Personal status matters in the courts are largely handled by male judges. A woman perceived to be responsible for the divorce may become ostracized by the family and the society. Some women thus prefer to stay in the marriage rather than abandon their children and then face shame within the society.27 After a divorce is finalized the couples can get remarried to other people, however most women in Saudi Arabia prefer to remain spinsters rather than get remarried except in nomadic communities where family ties do not seem to be affected by divorce as explained bySeba 2014. 28There have been awareness forums and talks in the Saudi kingdom like the Saudi Divorce Initiative Forum arranged by human right groups and other players like the Ministry of Social Affairs among others to raise awareness on issues of divorce and the rights of women during and after divorce. These forums have continued to impact positively on the patriarchal society and helped to reduce the shame that women feel after a divorce when they are blamed by the society. In conclusion the rise in divorce rates has been witnessed in states all around the world, in most countries the rise in divorce cases has been brought about by the widespread of education and globalization. Most women have become empowered and the governments together with various human rights groups have come up with policies that progress gender equality and advocate against gender based violence against women. This self-awareness and empowerment has given the women an opportunity to improve their lives.Divorce has become socially accepted due to the loosening religious and cultural taboos in the modern world. Reference list Al Gharaibeh, F., & Bromfield, N. F. (2012). An analysis of divorce cases in the United Arab Emirates: A rising trend. Journal of Divorce & Remarriage, 53(6), 436-452. Al-Rodiman, A. (2013). The application of Shari’ah and international human rights law in Saudi Arabia. Baarsma, N. A. (2011). The Europeanization of international family law. Hague, T.M.C. Asser Press. http://public.eblib.com/choice/publicfullrecord.aspx?p=885911. Cox, F., Demmitt, K. (2013). Human Intimacy: Marriage, the Family, and Its Meaning.Wadsworth,Cengage Learning. Everett, C. (2013).Divorce and Remarriage: International Studies. Routledge, USA Fatany, S. (2013).Why divorce is on the rise in Saudi Arabia. Retrieved on 20th Jan 2015 from:http://english.alarabiya.net/en/views/2013/03/24/Why-divorce-is-on-the-rise-in- Saudi-Arabia.html Hefner, R. W. (2011). Shariʻa politics: Islamic law and society in the modern world. Bloomington: Indiana University Press Hodson, D., Blackburn, H., &Hodson, D. (2012).The international family law practice. Bristol, Family Law. Ibn, W. (2012). Why the West is best: A Muslim apostates defense of liberal democracy. New AlMunajjed, M., & Insight, I. C. (2010).Divorce in Gulf Cooperation Council countries: Risks and implications.Unpublished report, Ideation Center, Dubai, United Arab Emirates.York: Encounter Books. Jacobson, D. (2013). Of virgins and martyrs: Women and sexuality in global conflict. Baltimore: Johns Hopkins University Press. Jeanes, E. L. (2012). Handbook of Gender, Work, and Organization. Chichester, West Sussex: Wiley. Kaslow, F. W. (2013). Divorced fathers and their families: legal, economic, and emotional dilemmas. New York, Springer. Kaslow, F. W. (2013). Divorced fathers and their families: Legal, economic, and emotional dilemmas. New York: Springer. Meijer, R., &Aarts, P (2012) Saudi Arabia between Conservatism, Accommodation and Reform. Retrieved on 20th Jan 2015 from http://www.clingendael.nl/sites/default/files/20120000_research_report_rmeijer.pdf Popenoe, D. (1988).Disturbing the Nest: Family Change and Decline in Modern Societies. Transaction Publishers, New Jersey Psychosocial Impact of Polygamy in the Middle East. (2014). New York, NY: Springer New York. Seba, Z. (2014).Health in Saudi Arabia Vol. One: 2nd Edition. Partridge Publishing, Singapore Stark, B. (2013).International Family Law: An Introduction. Ashgate Publishing Ltd, USA Thompson, M. C. (2014). Saudi Arabia and the path to political change: National dialogue and civil society. Voorhoeve, M. (2012). Family law in Islam: divorce, marriage and women in the Muslim world. London [etc.], Tauris. Witte Jr, J., & M. Green, C. (2012) Religion and Human Rights: An Introduction. Oxford University Press. Read More