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Divorce is the dissolution of the contract of marriage in which both partners are still alive. In contrast, a marriage is automatically dissolved when one partner dies, or is presumed dead (see: Presumption of death).
The person seeking divorce is referred to in court proceedings as the 'petitioner', the other party the 'respondent'. Of course, in many cases the divorce is uncontested, that is, accepted by both partners.
For the petition to succeed it will be necessary to show that the marriage has 'broken down irretrievably'. This is a stricter criterion than accepted in many countries. To accept the claim of irretrievable breakdown, the petitioner will need to demonstrate one or more of the following:
- the respondent has committed adultery, or
- the respondent has behaved in such a way that it would not be reasonable to expect further cohabitation ('unreasonable behaviour'), or
- the respondent has refused to live with or support the petitioner ('desertion'), or
- the partners have lived apart by mutual agreement for at least two years, and both partners agree to the divorce, or
- the partners have lived apart by mutual agreement for at least five years.
If the divorce is granted, courts are empowered to order financial relief for either partner and the support of dependants.
If the remedy of divorce is not legally available, a court may still order a judicial separation (see: Judicial separation), possibly with financial relief.
In all cases of divorce where the divorced couple have children, issues of custody (see: Custody of children) and, in extreme cases, guardianship (see: Guardian) will arise. These may have to be settled by the courts; on the whole the welfare of the children will be the overriding concern here, not the rights or wrongs of the parents.