An Examination and Evaluation of Recent Changes in Divorce Laws in Five Western Countries: The Critical Role of Values

Article excerpt

There has been a well-documented increase in the divorce rate in Western countries in the last 30 years, although the rate has been relatively stable in the last decade (Phillips, 1988). Paralleling the increase in the divorce rate have been profound changes in the laws that govern divorce and its aftermath. In this article, in keeping with the spirit of the 1994 International Year of the Family, we examine laws related to divorce in several Western countries, including the United States, France, England and Wales, and Sweden. We also propose that it is difficult to determine the consequences of these legal changes on family life because evaluations of these effects by individuals (including researchers and those who review their work) depend on their positions on several value dimensions.

In addition to providing valuable descriptive information about divorce laws from an international perspective, comparative analyses provide unique insights into the relation between culture and laws pertaining to divorce beyond that provided by an analysis of any single country. Because countries have different cultural traditions and somewhat different laws pertaining to divorce, comparative analyses provide an opportunity to explore how cultural values, and changes in values over time, relate to laws regarding divorce. Thus, we conclude this article with some comments about the complex relation between cultural values and legal change.

Our focus is on Western countries because there is more available information on divorce laws in these countries than in non-Western countries. Because divorce for couples with children, relative to those couples without children, is more complex and has led to greater controversy among family policy specialists, we focus our review on divorce laws as they pertain to couples with children.

Before proceeding to the survey of divorce laws, it is important to draw a distinction between marital breakdown and divorce. Marital breakdown occurs when a couple's marriage has deteriorated to the point that it is no longer viable and does not meet the mutual needs of the spouses. Divorce, by contrast, is the formal termination of the marriage in a court of law. Therefore, marital breakdown is a private experience, whereas divorce is a public one. This distinction is a critical one, because marital breakdown does not necessarily result in divorce (Phillips, 1988). Although marital breakdown occurs in all societies, the manner in which couples choose to formally resolve this breakdown differs both within and across countries.

TRENDS IN LAWS PERTAINING TO DIVORCE IN WESTERN COUNTRIES

There are two primary aspects of law relevant to divorce. First, there are laws that regulate how couples obtain a divorce. Second, there are laws that govern the aftermath of divorce, including such matters as spousal support, child support, and child custody. In this section, we review each of these two aspects with respect to the countries of interest.

LAWS PERTAINING TO OBTAINING A DIVORCE

The modern history of divorce law in the United States and Western Europe arguably began in the 1960s, when almost all of those countries that recognized divorce enacted substantially modified procedures and grounds. Prior to 1960, the United States, England and Wales, and France had divorce laws built around the idea that one spouse was at fault for the marital rift (Glendon, 1989; Phillips, 1988). Of the countries surveyed here, only Sweden had a law before 1960 that allowed divorce without an assertion of fault (Rheinstein, 1971).

The United States. At the outset, it should be noted that family law in general and divorce law in particular are determined at the state level in the United States, primarily because of its federalist roots, which emphasize decentralized states' rights (Resnik, 1991). However, because of "migratory divorce" (i.e., couples traveling to states with less restrictive divorce laws than their own), it is difficult for any one state to have a law that makes divorce more difficult to obtain than in other states. …