Divorce and Remarriage

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12.3.2: “Her” Divorce Contrary to common belief, about two-thirds of divorces are initiated by women (Sweeney, 2002). The only exception is that older wives in long-term unions are less likely than their husbands to file for divorce (Hacker, 2003:27). This is an interesting anomaly, because women benefit less from divorce than men. To be sure, many ex-wives are relieved to have ended an onerous

relationship, and some are even freed from a physically or emotionally abusive one. Some are now liberated from a situation that stifled their educational and career goals. Of course, divorce also frees them to seek new and perhaps more fulfilling relationships. But there are many reasons for women to keep their marriages intact because divorce has several negative consequences for them. (See Families in Global Perspective: Divorce in Binational Marriages for the special problems of divorce among binational spouses.)

Families in Global Perspective Divorce in Binational Marriages

Globalization has led to an increasing number of binational marriages as young adults attend

schools or work in foreign lands. In the European Union, for example, where 875,000 divorces take

place each year, one-fifth of them is binational). Should these marriages sour, divorce—with its

division of assets and custody of the children—is complicated by former spouses being from

different traditions and laws.

Divorce in Binational Marriages Which laws apply—those of the country or state of residence, those of the spouse seeking the

divorce, or those of the wife or husband, regardless of who seeks the divorce?

Let’s consider the situation of child abduction, about two-thirds of which are perpetrated by mothers

(two-thirds of the time) when a marriage breaks down (the following is largely from the Economist,

2009a). This act is an attempt to retain custody of the children when the laws and traditions are

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often stacked against them, because they usually have fewer economic resources than men, they

are often less knowledgeable about the law and their options, and, in some countries, there is a

male bias in the law.

Most advanced industrial nations, plus most of Latin America and a few other countries, have

agreed to the 1980 Hague Convention, a treaty that requires countries to send abducted children back to the jurisdiction where they had previously lived. Sounds simple enough, but in practice some

signatory nations do not always comply with the agreement. The U.S. State Department lists

Honduras, Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland, and Venezuela as

showing “patterns of non-compliance.” “Anyone in a wobbly marriage with a citizen of these

countries might bear that in mind before agreeing to let the children go on holiday there” (Economist,

2009a:22). The United States, too, makes it difficult at times. State and federal laws may clash.

Appeals take time and money. While Great Britain offers automatic legal aid to the foreign parent

seeking to recover the children, in the United States that parent must rely on her or his own

resources and “sorting out these cross-border legal wrangles can be colossally expensive”

(Economist, 2009a:24).

Then there are countries that have not signed the Hague Convention, such as Japan, China, and

Russia. Other than Turkey and Bosnia, no Muslim countries have signed the Hague

Convention. Sharia law (Muslim law) assumes that “children over seven will be brought up by the

father, not the mother, though that is trumped by a preference for a local Muslim parent. So the

chances of a foreign mother recovering abducted children from a Muslim father are slim”

(Economist, 2009a:22).

So questions remain: Can sharia law be used as a legitimate argument in the courts of non-Muslim

countries? Does the U.S. parent divorcing a spouse from another country have an advantage in a

U.S. court? Should the parent in a binational marriage who abducts her or his children be

advantaged or disadvantaged in the courts? How is the jurisdiction of the case decided fairly? What

can be done to make the disputing parties be treated equally in the courts?