There is a cultural belief in most societies around the world that a marriage should be a lifetime commitment. However, the rate of divorce reported in the globe today is alarming. For example, in recent years, the number of divorce cases has risen steadily. There is no doubt that separation has become one of the social problems plaguing the 21st society. Marriages end in many different ways. Some start with separation, while others end out of the mutual agreement and forced dissolution (Auchmuty, 2016). Each country has laws that regulate marriages and divorce within its jurisdiction. However, the divorce laws and procedures were included later in some of the jurisdictions. Many studies conducted in this field have analyzed the various indicators of marriage and divorce. The trend shows differences in the development and dissolution of family units. Most studies show that the number of marriages per 100 persons has decreased. However, the number of dissolutions continues to rise. In addition, the number of children born to unmarried couples has increased (Auchmuty, 2016).
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In this paper, the author discusses the concepts of marriage and divorce laws in three countries around the world. The paper will focus on the United Kingdom, South Africa, and the Kingdom of Saudi Arabia. The relevance of the existing laws and new legislation touching on marriage and divorce in these countries will be reviewed.
Marriage and Divorce Laws and What they Mean to Couples: An Overview
As already in this paper, the number of marriages is on the decline, while that of divorce is on the rise. However, in spite of this reality, the number of civil partnerships is on the rise (Toit, 2015). The partnerships are mainly evidenced among marginalized communities and groups, such as gays and lesbians. Marginalized groups like gays and lesbians have been ignored for a long time. They have remained absent from most legal accounts and recognitions (Burton, 2016). However, with the agitation for human rights and the expansion of legal spaces in contemporary society, these groups are becoming visible. Their visibility extends to the realm of divorce and separations.
In most cases of marriage, dissolution frameworks are used more than divorce proceedings. The legality of these two ways of ending partnerships is becoming acceptable in society today. Divorce processes have various impacts on both parties. The effects include financial and emotional ramifications (Burton, 2016). However, one of the most affected parties in the divorce process is the children. The separation of parents may lead to both mental and physical illnesses.
Companionate marriages are built on a set of ideals. Some of the ideals include fairness during marriage and after divorce. Regardless of this, most marriages in contemporary societies have to deal with social issues that are external to the union. For instance, the requirement for equality in marriage heralded a new era to these unions. Traditional family ties have been replaced with civil partnerships. Marriages in traditional set-ups were regarded as family units that should last a lifetime (Auchmuty, 2016). However, things have changed and marriage is one of the social elements that have assumed new dimensions. Today, divorce has become more common than marriage itself. Embracing civil partnerships is another thing that has changed the traditional marriage set-up.
Arrangements are usually made prior to marriages on how the dissolution of such partnerships will take place. The separation is required to follow a scheduled pattern of fairness and harmony (Paechter, 2013). The arrangements are pegged on a sober approach to divorce, especially with regards to the division of property and other assets. Laws are put in place to ensure the divorce settlements are carried out objectively and in a fair manner. Different countries have their own laws. The laws depend on the types of marriage existing in such jurisdictions. As such, it is noted that marriage and divorce laws are not universal. On the contrary, they vary from one region to the other.
Specific Marriage and Divorce Laws: Case Studies of the United Kingdom, South Africa, and the Kingdom of Saudi Arabia
Universal laws exist to provide equal protection to citizens in all aspects of their life. However, the definition and specification of marriage and divorce laws tend to lean more on the uniqueness of individual countries. The reason behind this is that people have different cultures. The cultures dictate the laws in those specific countries (Burton, 2016). The legislation governing marriage and divorce include traditional systems, customary laws, contemporary values, and national regulations. Marriage and divorce are treated differently in each case. For instance, Islam, Arab, and traditional African societies have their own way of entering into marriage. They also have rules and regulations governing the dissolution of the union. The case is different for western countries, such as the US and the UK.
Divorce and Marriage Laws in the United Kingdom
Paechter (2013) argues that there are many ways in which English and Welsh divorce laws are similar. One of them is the concept of fairness in addressing marriage dissolution issues. Like in many other countries, marriage in Britain is regarded as the foundation of the family unit. However, the country has reported a rise in the number of divorce cases and separations. Statistics show that 2.1 million marriages took place in 2011. At the same time, 986,000 divorce cases were reported in the European Union countries. The figures represent 4.2 marriages and 2.0 divorces for every 1000 persons (Eurostat, 2016). Another indicator of the reduced decrease in marriages is the number of births occurring within unmarried unions. In 2014, the extramarital births exceeded those in marriages. Figures show that up to 59% of births take place out of marriage in some European countries (Eurostat, 2016).
Understanding equity-based approaches and equality-based approaches are important in divorce fairness. Generally, this is “gendered” from husbands to wives (Paechter, 2013). Divorces follow bureaucratic processes. The granting of the petition by any jurisdiction depends largely on the nature of the presented petition. The law requires the petitioner to prove that the marriage has broken down without any chance of reversing it. In Britain, the Wills Act of 1837 is mainly used in marriages. According to Burton (2016), the United Kingdom has family laws dating back to the eighteenth century. The laws follow the Wills Act of 1837. However, legislations have evolved over time. The Marriage Act of 1949 was the first to be introduced in the country. Because Britain is one of the developed countries, a lot has changed ever since. Laws have evolved to accommodate the needs of citizens living within a changing social context. The latest is the Marriage Act of 1983. It was followed by the Same-Sex Couple Act of 2013 (Burton, 2016).
The Marriage Act of 1983 outlines the division and distribution of properties in a marriage. It also puts emphasis on detained persons (Burton, 2016). The Same-Sex Marriage Act of 2013 is regarded as a major milestone in the rights of the marginalized communities, such as gays and lesbians. According to Burton (2016), information on divorce in the UK can only be found in court files. As such, it is difficult to access consistent data for the analysis and implementation of other acts. Auchmuty (2016) applauds the efforts made by the UK government in enforcing the Same-Sex Marriage Act. According to Auchmuty (2016), the institution of civil partnership, especially the one involving gays and lesbians, deserves legal recognition and legislation. It is a fact that this partnership may be different from marriage. As such, its dissolution should be different from “normal” divorce.
Marriage and Divorce Laws in the Kingdom of Saudi Arabia
Saudi Arabia is an Islamic nation. Religion determines the country’s legal statutes and laws. During the classical era of Islam, relationships within the religious state were different from what they are today. There are three models of religion-state relations in Muslim dominated countries. The models determine whether or not the laws are legally binding to the communities. The legality and acceptability of these laws depend on whether or not they directly used as per the religion’s requirements. There is also private practice, which draws its laws from Sharia (Rafiq, 2014). The first model is of an Islam state religion that uses Sharia laws on its people. The second is where Islam is not a state religion, but where people still use the Sharia laws. The third model does not recognize the link between the state and the religion (Rafiq, 2014). Marriage and divorce are treated differently under these models.
Marriage in Saudi Arabia was traditionally tribal. People were encouraged to marry within their families. The marriage was carried out with the belief that it will increase the strength of the tribe. An isolated case would involve marrying from a different tribe. Traditional societies viewed this as a way of easing tensions between rival tribes. Sharia laws allowed men to have up to four wives (Almosaed & Alazab, 2015). However, a lot of changes have taken place. For instance, women can now retain their full names. The traditional rule of divorce was for a man to repeat “I divorce you!” three times (Rafiq, 2014). The proclamation was binding unless the man changes his mind.
Divorce cases have been reported in Saudi Arabia in the recent past. The development can be attributed to the people’s rebellion against the barbaric nature of relationships within marriages. At puberty, people were allowed to marry. To a large extent, this has increased the rate of divorce. Many young people may change their mind regarding the person they married. An increase in education and contacts with the larger world has also brought a lot of changes (Almosaed & Alazab, 2015). Divorce cases are also caused by violence against women and the patriarchal nature of Islamic societies. According to Rafiq (2014), child custody is at the center of all divorce proceedings. Today, contemporary laws are used in divorce.
Marriage and Divorce Laws in South Africa
Communal ownership of property is the norm for all married couples in South Africa. The Matrimonial Act of 1984 spearheaded the idea of communal property ownership. The co-owned assets and liabilities are to be shared equally upon dissolution of marriage (Toit, 2015). The mixed legal system creates a trust that controls the properties of married couples. It is meant to benefit trust beneficiaries. However, spouses are encouraged to have pre-nuptial contracts. The contract is supposed to shield them from the default position of property ownership. South African marriage and divorce laws lack absolute authority compared to those in Anglo-American countries. The courts in South Africa are prohibited from granting relief exclusions on the basis of equity where other statutes lack alternative remedies (Toit, 2015).
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The South African Divorce Act was created in 1979. It was followed by a Mediation Act in 1987. The courts are expected to define the acts depending on the constitution and the circumstances surrounding each case of marriage and divorce. In this country, divorce is a straightforward affair. It only requires the issuance of summons to the Regional Court or the Magistrate Court within a given jurisdiction. The process was made easy after the Regional Amendment Act of 2010. The act allowed for separate magistrate courts to deal with divorce cases (Toit, 2015). There can also be “do-it-yourself” marriage dissolutions. In this case, the divorce can be concluded without involving an attorney. It is made possible through local magistrate assistants and online divorce services. In other cases, mediation can be used.
The latest amendments have given rise to a unique conceptualization of family. In the last decade, the focus has shifted on the laws relating to contemporary issues in society. They include same-sex unions, heterosexual partnerships, customary marriages, and associated aftermath issues (Sloth-Nielson & Heerden, 2014). The law also recognizes the extended family. The evolution of laws on marriage and divorce has led to the recognition of surrogacy and child-headed households. Other changes are on the emerging laws focusing on functional families as opposed to just biological parenting.
The Relevance of Marriage and Divorce Laws in the Contemporary Society
The right to marry is a choice and personal liberty. The concept of marriage varies across different communities and cultures (Bhugra et al., 2016). In addition, commitments should have boundaries and self-worth. There should be codes and laws touching on family, marriage, and divorce. The laws and codes should provide avenues for sober relations and dissolutions of such partnerships. The rights of every person who gets into such a union should be protected regardless of the misfortunes that may befall them (Bhugra, 2016). To this end, laws are made to govern and control the social life and interactions associated with human beings.
According to Auchmuty (2016), the rights of all citizens should be addressed. Marriage and divorce laws should be accommodative to protect all unions. The recognition of other civil partnerships is a human right. The marginalization of particular groups should not be encouraged. Humane frameworks that uphold fairness in divorce should be put in place. Dissolution is a process that is not legally recognized in many countries. However, most family lawyers admit that it is a largely similar divorce. In this context, dissolution protects civil relationships and should not be ignored (Auchmuty, 2016).
Laws are meant to protect people. Marriage and divorce laws vary from one country to the other. However, they serve the similar purpose of supporting smooth transitions into and out of relationships. Contemporary laws and emerging cases of social interactions should be addressed appropriately. The traditional ways of doing things are changing due to modernization and formal education. For instance, a country like Saudi Arabia, which was traditionally characterized by male chauvinism, is experiencing high numbers of divorce cases.
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Auchmuty, R. (2016). The experience of civil partnership dissolution: Not ‘just like divorce’. Journal of Social Welfare and Family Law, 38(2), 152-174.
Bhugra, D., et al. (2016). Legislative provisions related to marriage and divorce of persons with mental health problems: A global review. International Review of Psychiatry, 28(4), 386-392.
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