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.
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.
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
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
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.
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
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”
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.
1. different investment in earnings
ability during marriage
2. women more likely to retain custody
of children (men don’t file, changing, criteria)
women’s incomes are about 20% lower than men’s and they are more likely to have part time and temporary
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.
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.
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
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:
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 reflects and reproduces gender
Legal transaction that is organized
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?