What is Policy?

Policies are plans of action that some social institution takes to maintain itself and conduct its affairs.

Governments, churches, business and lots of other large social institutions create and use policies.

For example everything the government does from collecting taxes to imprisoning criminals to controlling shipments of goods that come into the docks on ships in the harbor is directed by public policies. 

Social policies are the particular plans of action that affect the social status (how people interact with one another) and the life chances of individuals, families and groups of people. 

Social policy includes everything from the provision of education to regulations on health and safety in the workplace to provision of divorce courts and laws about who, when, where, how and why someone can break a marriage contract.

 

Divorce

Policy and Laws

Policy is not the same as law but laws are an important piece of policy.  Policy is a plan of action and laws are the rules that govern particular pieces of policy. 

For example, it is the policy of South Africa to provide public education for children. Education policy, or a plan of action to do this is affected by the teacher’s unions, parent’s expectations, the organization of higher education institutions that train teachers, etc.  But it is also affected by laws about education that make up part of the policy.  The laws states that children of a particular age must be in school and the laws restricts certain aspects of the curriculum and funding for schools, etc.

 

Social Policy of Divorce

Today we are going to talk about a piece of social policy regarding divorce.  We are going to talk about divorce laws in South Africa and in other places in the world, especially in the Arab Muslim nations—Tunisia—and in the U.S.

 

First I am going to describe four legal systems for organizing divorce and then I’m going to reflect on what those four systems tell us about gender and gender relations.

 

The four systems are: Fault, No-fault, Covenant, and Repudiation. 

 

1. Fault Divorce

Some divorce has been an option, at least for wealthy people and/or men in many parts of the world for many centuries.  For example, the Catholic Church has been strongly against divorce for a long time, but European kings and queens were able to negotiate deals with the church that allowed them to separate from a spouse.  Many Muslim societies have allowed at least some men to divorce their wives through repudiation. And Protestants have allowed divorce at least under certain specific circumstances.

The Protestant view of divorce, that it should be allowed under certain circumstances is the basis of fault divorce

Fault divorce says that if one spouse behaves in certain ways, the other spouse has the right to divorce. 

In the U.S. grounds for divorce since the early 1600s included adultery, desertion, abuse and imprisonment.

In S.A. grounds for divorce included adultery, desertion, imprisonment and insanity.

The idea is that one spouse is at fault and has ruined the marriage and the other spouse was an innocent victim and should be allowed to separate from the bad spouse.

The good spouse had to prove to the court that the other party was guilty of ruining the marriage. 

And, (and this is an important and) the division of the property of the couple would be based on this distinction between guilty and not guilty with the innocent spouse taking the bulk of the property.

2. No-Fault Divorce

In the 1970s a new form of divorce was invented in California, called no-fault.  This invention spread throughout the U.S. and Europe and many places in the rest of the world and was established in South Africa in 1979. 

No-fault said that you could divorce for adultery, abandonment, and insanity but you could also divorce for what is called in south Africa “irretrievable breakdown of the marriage”

“irretrievable breakdown” is “proven” by a time period of separation. 

Divorce is granted in South Africa if one partner leaves, two years in a mental institution and no chance of recovery, 6 months unconscious, but also don’t live together or don’t love each other.

And you no longer had to prove that one person had ruined the marriage.  There was no bad spouse/good spouse. 

In the U.S. the division of property was unrelated to who had done what in the marriage. 

Unless there is some kind of pre-nuptial agreement, the debts and assets are split in half.

In some other nations, including South Africa,  the conduct of the husband and wife in marriage as well as other considerations like need, child custody, ability to support oneself. 

No fault divorce in the U.S. was hailed as a great step forward for gender equality.  Women file for divorce 2x more than men.  Women want to have access to easier divorce. 

No-fault is completely gender blind. 

 

But one of the unexpected results is the economic results of divorce

Women’s incomes fall by 30% while men’s rise by 10% after a divorce. 

Why?

1. different investment in earnings ability during marriage

2. women more likely to retain custody of children (men don’t file, changing, criteria)

3.  women’s incomes are about 20% lower than men’s and they are more likely to have part time and temporary jobs.

Result: gender blind law in a gender society.  Law treats women and men as equals but they aren’t really.

 

South African law is also gender blind but it doesn’t treat two spouses as necessarily equal.  Divorce is granted in a gender blind manner but property division is done with an eye to seeing inequality and coming up with a solution that is fair but not necessarily equal. 

In addition, South African divorce courts consider child custody along with the divorce.  In the U.S. these are two separate decisions.

 

3.Covenant marriage and divorce

Recently the U.S. has increasingly become a religious based society with a strong Christian fundamentalist basis.  One reflection of this is a movement to alter divorce laws to return to restrictions of fault divorce.  Only allow divorce for adultery, felony imprisonment, abandonment for one year, physical or sexual abuse of child or partner, drug abuse.  And even in these cases need to enter counseling to try to save marriage. Irreconcilable differences is not valid.  Have become dominant form in some areas where churches refuse to marry people who do not sign documents saying they will abide by these alternative divorce laws.

 

4. Repudiation in Muslim nations.http://muse.jhu.edu/journals/human_rights_quarterly/v027/27.2mashhour.html#ahead1http://muse.jhu.edu/journals/human_rights_quarterly/v027/27.2mashhour.pdf

Like covenant divorce in Conservative Christian nations, repudiation in conservative Muslim communities are shaped by religious beliefs.

Repudiation is the unilateral prerogative to terminate a marriage at will without judicial intervention (under Islamic law, shari’a)

Women can also initiate divorce but much more restrictive: must go to religious judge, must prove husband harmed her, receives no continued economic support

Repudiation is common in many Arab Muslim nations although recently laws have changed to eliminate repudiation in Egypt and Morocco and as you know in Tunisia

In South Africa a marriage that takes place in a religious institution but not a civil one, such as many Muslim and Hindu marriages, is not considered a marriage and therefore is not covered by civil divorce (I think)

Repudiation is therefore allowed in South Africa?  It exists outside the law?

And if couple is married both in a civil ceremony and a religious one, a divorce cannot be granted in a civil court until the religious marriage is dissolved. (1996 Divorce Amendment Act)

Tunisia: four problems: does not require court procedure, only men have right to divorce, no financial responsibility by men, too easy for men.

Replaced by new law (similar to no-fault)1981:

    Fault divorce

    Mutual consent

    One party requests and pays compensation to nonconsenting

Special benefit to women (not gender blind) alimony for life or until remarriage

Child custody used to be mothers until puberty, now best interest of the child.

Review of implementation suggests men now more restricted and women advantaged (can obtain divorce, retain child custody, alimony possible although not really)

Disadvantages for women: stigma, lack of money, may have to pay compensation if they initiate.

 

 

Divorce and Gender

Divorce reflects and reproduces gender relations

Legal transaction that is organized around gender. 

In most nations divorce (because marriage is) is always between one man and one woman.

And it sets them up as adversaries: one man versus one woman

Government explicitly creating and shaping relationships between two gender groups.

So what do these four systems tell us about gender?