Monday, January 02, 2006



The divorce rate is low among Muslims compared to other groups; some think that the rate is slowly rising. For example: in 2004 in Singapore (which has an 18% Muslim minority) many feared that the divorce rate among Muslims had risen too high: 9 out of every 1000 marriages, a ratio three times higher than Malaysia and five times higher than Indonesia[13].

In the United States, in 2003 there were 7.5 marriages per 1000 people and 3.8 divorces per 1000 according to the U.S. Department of Health and Human Services. In other words, there were half as many divorces as marriages that year. Statistics like these are frequently interpreted to mean that half of all marriages end in divorce. That conclusion, strictly speaking, does not follow from those data, but other government surveys of marriages over time have found similar percentages of marriages ultimately ending in divorce. A study [Bramlett 2001] based on a 1995 survey, found that 43 percent of first marriages ended in separation or divorce within 15 years, with 1 in 3 ending within 10 years and 1 in 5 ending within 5 years.

According to [Brinig 2000], women currently file slightly more than two-thirds of divorce cases in the US. There is some variation among states, and the numbers have also varied over time, with about 60% of filings by women in most of the 19th century, and over 70% by women in some states just after no-fault divorce was introduced, according to the paper.

States in the US handle billions of dollars in alimony and child support arrangements, which commonly result from divorces. (According to a 2003 US census report, 43.7 percent of custodial mothers and 56.2 percent of custodial fathers, are divorced or separated.) A 2005 Census Bureau Report found that in 2002, $40 billion had been paid in support arrangements by 7.8 million payers, 84% of whom were men. States also collected federal incentives to collect support payments, with a potential incentive pool of up to $454 million in fiscal 2004. A media kit for the National Child Support Enforcement Association, a child support advocacy group, claims that 60,000 professionals work to administer and enforce child support arrangements.

Global issues

Global issues

Where people from different countries get married, and one or both then choose to reside in another country, the procedures for divorce can become significantly more complicated. Although most countries make divorce possible, the form of settlement or agreement following divorce may be very different depending on where the divorce takes place. In some countries there may be a bias towards the man regarding property settlements, and in others there may be a bias towards the woman, both concerning property, and also custody of any children. One or both parties may seek to divorce in a country which has jurisdiction over them. Normally there will be a residence requirement in the country in which the divorce takes place. Some of the more important aspects of divorce law involve the provisions for any children involved in the marriage, and problems may arise due to abduction of children by one parent, or restriction of access rights to children. For the Conflict of Laws issues, see divorce (conflict).

England and Wales

England and Wales

Divorce is commenced by the issuing of a petition, which must be acknowledged by the other party. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted 'nisi', i.e. (unless cause is later shown), before it is made 'absolute'. Relevant laws are:

* Matrimonial Causes Act 1973, which sets out the basis for divorce (part i) and how the courts deal with financial issues, known as ancillary relief (part ii)
* Family Law Act 1996
* Children Act 1989
* The Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991
* Marriage Act 1949



About one third of marriages in Scotland end in divorce, on average after about thirteen years (‘Family Formation and Dissolution). Actions for divorce in Scotland may be brought in either the Sheriff Court or the Court of Session. In practice, it is only actions in which unusually large sums of money are in dispute, or with an international element, that are raised in the Court of Session. If, as is usual, there are no contentious issues, it is not necessary to employ a lawyer.

The grounds of divorce are, as described above, contained in the Divorce (Scotland) Act 1976. There have however been proposals for a number of years for their reform and simplification; see for example Scottish Law Commission report on Family Law no 135 and more recent proposals by the Scottish Executive. It is likely that the two year separation period required for a no-fault divorce with consent will be reduced to one year. Family law issues are devolved, so are now the responsibility of the Scottish Parliament and Scottish Executive.

Financial consequences of divorce are dealt with by the Family Law (Scotland) Act 1985. This provides for a division of matrimonial property on divorce. Matrimonial property is generally all the property acquired by the spouses during the marriage but before their separation, as well as housing and furnishings acquired for use as a home before the marriage, but excludes property gifted or inherited. Either party to the marriage can apply to the court for an order under the 1985 Act. The court can make orders for the payment of a capital sum, the transfer of property, the payment of periodical sums, and other incidental orders. In making an order, the court is, under the Act, guided by the following principles: (1)The net value of the matrimonial property should be shared fairly, and the starting point is that it should be shared equally; but (2) fair account should be taken of economic advantage derived by either party from contributions by the other, and of economic disadvantage suffered by either party in the interests of the other party or of the family; and (3) The economic burden of caring for a child of the marriage under 16 years should be shared fairly between the parties (but child support is not normally awarded by the court, as this is in most cases a matter for the Child Support Agency).

The general approach of the Scottish courts is to settle financial issues by the award of a capital sum if at all possible, allowing for a ‘clean break’ settlement, but in some cases periodical allowances may be paid, usually for a limited period. Fault is not normally taken into account.

Decisions as to parental responsibilities, such as residence and contact orders, are dealt with under the Children (Scotland) Act 1995. The guiding principle is the best interests of the child, although the starting assumption is in practice that it is in a child’s best interests to maintain contact with the non-custodial parent.

France Japan


The French Civil code (modified on January 1, 2005), permits divorce for 4 different reasons; mutual consent (which comprises over 60% of all divorces); acceptance; separation of 2 years; and due to the 'fault' of one partner (accounting for most of the other 40%).


In Japan, there are four types of divorce. Divorce By Mutual Consent (kyogi rikon), Divorce By Family Court Mediation (chotei rikon), Divorce By Family court Judgement (shimpan rikon), and Divorce by District Court Judgment (saiban rikon).

Divorce by mutual consent is a simple process of submitting a declaration to the relevant government office that says both spouses agree to divorce. This form is often called the "Green Form" due to the wide green band across the top. If both parties fail to reach agreement on conditions of a Divorce By Mutual Consent, such as child custody which must be specified on the divorce form, then they must use one of the other three types of divorce. It should also be noted that another type may also be necessary in the case of an international divorce, as Japan's Divorce By Mutual Consent is not recognized by all countries.

Divorce By Mutual Consent in Japan differs from divorce in many other countries in that it is not always possible to verify the identity of the non Japanese spouse in the case of an international divorce. This is due to two facts. First, both spouses do not have to be present when submitting the divorce form to the government office. Second, a Japanese citizen must authorize the divorce form using a personal stamp (hanko), and Japan has a legal mechanism for registration of personal stamps. On the other hand, a non-Japanese citizen can authorize the divorce form with a signature. But there is no such legal registry for signatures, making forgery of the signature of a non-Japanese spouse difficult to prevent at best, and impossible to prevent without forsight. The only defense against such forgery is, before the forgery occurs, to submit yet another form to prevent a divorce form from being legally accepted by the government office at all. This form must be renewed every six months.



In Canada while civil and political rights are in the jurisdiction of the provinces of Canada, the Constitution of Canada specifically made marriage and divorce the realm of the federal government. Essentially this means that Canada's divorce law is uniform throughout Canada, even in Quebec, that differs from the other provinces in its use of the civil law as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo-Canadian provinces.

The Canada Divorce Act recognizes divorce only on the ground of breakdown of the marriage. Breakdown can only be established if one of three grounds hold: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming. [10] The one-year period of separation starts from the time at least one spouse intends to live separate and apart from the other and acts on it. A couple does not need a court order to be separated, since there is no such thing as a "legal separation" in Canada. [11] A couple can even be considered to be "separated" even if they are living in the same dwelling. Either spouse can apply for a divorce in the province in which either the husband or wife has lived for at least one year.

On September 13, 2004, the Ontario Court of Appeal declared the Divorce Act also unconstitutional for excluding same-sex marriages, which at the time of the decision were recognized in three provinces and one territory. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce.

United States

United States

Divorce in the United States is a matter of state rather than federal law. In recent years,however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. For example, federal welfare reform mandated the creation of child support guidelines in all 50 states in the 1980's. ERISA includes provisions for the division of qualified retirement accounts between divorcing spouses. The IRS established rules on the deductibility of alimony, and federal bankruptcy laws prohibit discharging in bankruptcy of alimony and child support obligations. COBRA allows a divorced spouse to obtain and maintain health insurance. The laws of the state(s) of residence at the time of divorce govern, not those of the location where the couple was married. All states recognize divorces granted by any other state. All states impose a minimum time of residence, Nevada currently being the shortest at 6 weeks. Some countries provide "divorce mills" by which couples or individuals can circumvent residency requirements, but states are not bound to recognize such divorces.

Prior to the latter decades of the 20th century, a spouse seeking divorce had to show a cause such as cruelty, incurable mental illness, or adultery. Even in such cases, a divorce was barred in cases such as the suing spouse's procurement or connivance (contributing to the fault, such as by arranging for adultery), condonation (forgiving the fault either explicitly or by continuing to cohabit after knowing of it), or recrimination (the suing spouse also being guilty).

Typically, a county court’s family division judges petitions for dissolution of marriages. [6] [7] The National Association of Women Lawyers was instrumental in convincing the American Bar Association to help create a Family Law section in many state courts, and pushed strongly for no-fault divorce law around 1960 (cf. Uniform Divorce Bill). In some states fault grounds remain, but all states except New York now provide other grounds as well, variously termed irreconcilable differences, irremediable breakdown, loss of affection, or similar. For such grounds no fault need be proven and little defense is possible. However, most states require some waiting period, typically a 1 to 2 year separation. Some have argued that the lack of means to contest a no-fault divorce makes a marriage contract the easiest of all contracts to dissolve, and in very recent years some have begun to favor moderate divorce reforms such as requiring mutual consent for no-fault divorce. However, no such laws have been passed as of this writing.

Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, alimony, and so on. States vary in the admissibility of such evidence for those decisions. In any case, a no-fault divorce can be arranged far more easily, although the terms of the divorce can be and often are contested with respect to child-related matters and finances. Ultimately most cases are settled by the parties before trial.

Mediation is a growing way of resolving divorce issues. It tends to be less adversarial (particularly important for any children), allows the parties greater control and privacy, saves money, and generally achieves similar outcomes to the normal adversarial process. Also, courts will often approve a mediated settlement quickly [Hoffman 1999]. A new movement towards Collaborative Law, where both sides are represented by attorneys but commit to negotiating a settlement and refraining from litigation, is also gaining momentum. If the parties and their collaborative law attorneys fail to reach a settlement, the collaborative lawyers are replaced by new counsel on the theory that the first set of lawyers will try harder if they know they will be "fired" if the dispute has to be resolved by a judge. Relatively amicable approaches such as this may reduce the trauma of divorce for all parties. Most experts agree that these methods are not appropriate for all relationships, especially those that included physical or emotional abuse, or an imbalance of power and knowledge about the parties' finances, for example.

Hostile divorces, in contrast, can be expensive both financially and emotionally. Fault grounds can be unpleasant enough when true, and may sometimes be falsely alleged, as may anything else that an unethical spouse can think of. In the 1990's heated debate arose over accusations of domestic violence and of child sexual abuse arising in the course of hostile divorces. Some found a rapid increase in such charges and in the percentage of them eventually that were found baseless; others found there to be no such problems. It is unlikely the truth will ever be fully known.

States vary in their rules for division of assets in a divorce. Some states are "community property" states, while others are "equitable distribution" states. "Community property" states start with the presumption that assets will be divided equally, whereas "equitable distribution" states presume fairness may dictate more or less than half of the assets will be awarded to one spouse or the other. Attempt is made to assure the welfare of any minor children generally through their 21st birthday. Thus, the spouse given custody (or the spouse with the greater share of residence time in the case of joint custody), may receive assets to compensate their greater child-care expenses. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Depending on the state, an equitable or equal division of assets is then sought.

Alimony, also known as 'maintenance' or 'spousal support' is still being granted in many cases, especially in longer term marriages. Connecticut, for instance grants alimony in over 25% of cases. Alimony is also likely in cases where a spouse has remedial needs that must be met in order for the spouse to become fully employable, for example that one spouse gave up career opportunities or development in order to devote themselves to the family. Permanent alimony becomes likelier in marriages that exceed 12 years.

A decree of divorce will generally not be granted until all questions regarding child care and custody, division of property and assets, and ongoing financial support are resolved.

The decades following introduction of no-fault divorce laws saw an extraordinary increase in divorce rates and economic sequelae such as increased poverty rates for divorced women and their children, and increased morbidity and mortality of divorced men. Women were for some time nearly always awarded child custody, though there has seldom if ever been statutory support for this tradition. In recent years this pattern has decreased, as more men fight for legal rights of access to their children (fathers' rights) and for gender equity in this area. Nearly all states have since formed gender bias task forces, and many courts are working toward the ideal of total equality and fairness, says a State Task Force Report by the National Center for State Courts [8].

Since the mid 1990's a few states have enacted covenant marriage laws, which allow couples to voluntarily make a divorce more difficult for themselves to obtain than in the typical no-fault divorce action. For example, couples who choose to undertake a covenant marriage may be required to undergo counseling before a divorce can be granted, or to submit their conflicts to mediation. In states lacking such provisions, some couples sign contracts undertaking the same obligations.

Recent sociological studies have discovered a variety of long-term economic, social, physical, and mental health consequences of divorce, although the full extent of such effects remains hotly debated. Policymakers' attention to such studies is growing, but has not yet substantially influenced the US family law system. These apply to women, men, and children, though perhaps effects on children should be of most concern (in particualar cases, courts may appoint a "guardian ad litem" to represent children's interests). Any list of formal sociological articles on aftereffects of divorce would quickly become obsolete, but among the more accessible books are [Wallerstein 2000] (best known for discovering the long-term effects of divorce on children) and [Hetherington 2002] (perhaps best known for emphasizing that not all kids fare so badly, and that divorce can actually help children living in high-conflict homes such as those with domestic violence).

In recent years, a few high-profile court cases have involved children "divorcing" their parents, or being legally declared emancipated minors. Perhaps the best known are those of actor Macaulay Culkin and Olympic gymnast Dominique Moceanu (see BBC News June 23, 1999 [9]. However, these are not properly "divorce" cases, and different laws apply.

Legal aspects of divorce

Legal aspects of divorce

Muslim societies

No-fault divorce is allowed in Islam, though Islam discourages divorce.

If the man seeks divorce he has to cover the expenses of his ex-wife feeding his child and expenses of the child until the child is two years old ( that is if the child is under two years old). After the second birthday the child returns to the father.

If it is the wife who seeks divorce, she must go to a court. She must provide evidence of ill treatment, inability to sustain her financially or sexual impotence on the part of the husband. The husband may be given time to fix the problem, but if he fails, the judge will divorce the couple. [5]

Divorce's medical and psychological implications

Divorce's medical and psychological implications

Until recently it was thought that divorce was almost always a positive experience for spouses. More recent longtitudinal studies have revealed that many divorced people are no happier after divorce (although some are). For example University of Chicago sociologist Linda Waite [Waite 2003] analyzes the relationships between marriage, divorce and happiness using the National Survey of Family and Households. Her research shows that unhappily married adults who had divorced were no happier than those who had stayed married. The 13 measures of well being include self-esteem, personal mastery, depression, purpose in life and alcohol drinks per day.

Until recently it was also thought that children's difficulties with divorce, while common, were short-lived. However, recent work has shown that a major cost to children comes long after: when they attempt to form stable marriages themselves. There is extensive and heated debate over just how much harm, just how many children are harmed to what extent, what factors mediate the harm, and so on; however, even strong optimists such as Mavis Hetherington [Hetherington 2002] acknowledge that many (not all) children of divorce are substantially disadvantaged. However, Hetherington (a University of Virginia professor) also states that 70% of children coming from divorced families consider divorce an adequate answer to marital problems (even if children are present), compared to only 40% of children from non-divorced families. This suggests that divorce rebounds upon itself from one generation to the next. In addition, children from divorced families initiate sex earlier and are more likely to cohabit before marriage. Cohabitation before marriage is correlated with an 9% greater chance of getting a divorce [Bramlett 2001].

Children from divorced families have a higher chance of behavioral problems, are six times more likely to be abused (in their step families) than children in intact families, and have a greater chance of living in poverty [Fagan 2000]. Other social consequences of divorce are also known: "offspring of divorce were more likely to engage in criminal behavior, drug use, alcoholism and suicide than children of never-divorced children (A Divorce Free America p.4)."

Constance Ahron, who has published books suggesting there may be positive effects for children, interviewed ninety-eight divorced families' children for We're Still Family: What Grown Children Have to Say About Their Parents' Divorce [Ahron 2004]. Numerous subjects said things like "I saw some of the things my parents did and know not to do that in my marriage and see the way they treated each other and know not to do that to my spouse and my children. I know [the divorce] has made me more committed to my husband and my children." A primary claimed benefit of divorce for children is that they become more committed to avoiding divorce. However, children of divorce in fact divorce more often, so this putative effect provides no net benefit.

Ahron's method of asking adult children of divorce how they feel about it also has the well-known weakness of "self-report" studies. Researchers are unlikely to hear negative responses even from people who were harmed (people are unlikely to say "it destroyed me" or "I've never fully recovered" after years of adjusting to the fact of one's parents' divorce...).

In cases of extremely high conflict, divorce can be positive. An article in the Oklahoma Bar Journal [Bartlett 2004] defines "high conflict" in terms of ongoing litigation, anger and distress, verbal abuse, physical aggression or threats of physical aggression, difficulty in communicating about and cooperating in child care, or other court-determined factors. In marriages falling short of this standard, however, studies overwhelmingly find that divorce has serious costs for children's well-being.

In reviewing [Amato 1997], Norval D. Glenn and David Blankenhorn of the Los Angeles Times [4] comment that "Amato estimates that at most a third of divorces involving children are so distressed that the children are likely to benefit. The remainder, about 70%, involve low-conflict marriages that apparently harm children much less than do the realities of divorce..."

Medical statistics show that all parties to a divorce are likely (not certain) to suffer increased morbidity and mortality. See [Gallagher 1999] for additional statistics and references. For example, divorce:

* doubles the partners' risks of alcoholism and other substance abuse. Robert H. Coombs, Professor of Behavioral Sciences at UCLA, reviewed over 130 studies measuring how marital status affects personal well-being. They "attest that married people live longer and generally are more emotionally and physically healthy than the unmarried." Also, "studies consistently found more alcoholism and problem drinking among the unmarried than the married." The separated and divorced account for 70% of all chronic problem drinkers, and marrieds 15% [Coombs 1991].

* greatly increases the partners' and children's risks of depression. "Family disruption and low socioeconomic status in early childhood increase the long-term risk for major depression" [Gilman 2003].

* for men and women, leads to a several times higher rate of psychiatric care than married people. Studies vary, suggesting from 5 to 21 times the risk, and vary over whether men or women are more seriously affected [Marks 1998] and [Bloom 1979].

* multiplies men's suicide risk, making them nearly 9.7 times likelier than women to commit suicide even after controlling for other risk factors, according to a study by Augustine Kposowa, a University of California at Riverside sociologist [Kposowa 2003]. This study quantified earlier work [Kposowa 2000] that estimated an increased risk of 2.7 times for men. Divorce is now the leading factor linked with suicide.

* is the leading factor in child suicide and homicide rates [Lester 1993].

* reduces sons' life expectancy by about 4 years, daughters' by somewhat less, and parents' as well [for example, see [Smock 1993], [US Bureau of the Census 1991], [Dickson 1993], [Arendell 1995], [Amato 1991], and [Joung 1994].

* children of divorce are 5 times more likely to live in poverty (thus having poorer nutrition, health care, etc.) [McLanahan 1994].

Divorce also greatly increases the chances for

* stroke See [Engstrom 2004]: "Marital dissolution is followed by an increased incidence of stroke."

* cancer. Married cancer patients are also more likely to recover than divorced ones [Goodwin 1987].

* acute infectious diseases, parasitic diseases, respiratory illnesses, digestive illnesses, and severe injuries. See [Lawson 2000]. In support of these particular claims, that article cites [US Bureau of the Census 1991] and [Albrecht 1980].

* heart problems. Some research suggests that childhood trauma, including parental divorce, can lead to much greater risk of heart attack in later life. See [O'Rand 2005]. Combined with job stress, divorce led to a 69% increase of death rate among men with above average risk of heart disease [Reuters 2002].

* rheumatoid arthritis and osteoarthritis. [Mili 2002] shows a 30% increase in risk at any given age. [Kopec 2003] finds that parental divorce leads to increased risk of arthritis for children later in life.

* sexually transmitted diseases. For example, in Uganda "Results from a baseline survey of HIV-1 infection in the cohort of over 4,000 adults (over 12 years old) showed a twofold increase in risk of infection in divorced or separated persons when compared with those who are married." [Nabaitu 1994].

Many additional studies show health problems not only for children of divorce, but for children of single-parent families in general, or children of those single-parent families not caused by death of one parent. For example, the rate of Sudden Infant Death Syndrome was 3 times higher when the birth registery indicated both parents but they were unmarried, and 7 times higher when only the mother even appeared on the registry. [Office for National Statistics (UK) 2002].

Yale researcher Harold J. Morowitz [Morowitz 1975] comments that "being divorced and a nonsmoker is [only] slightly less dangerous than smoking a pack a day and staying married."

[Wallerstein 2000], which revealed some of these effects, was at first criticized because the subjects were all drawn from an affluent section of California rather than a broader sample. This is a real issue. However, more recent studies have confirmed her findings, and sometimes shown that her sample group was actually better off than average. Perhaps unsurprisingly, families with lower income, education, etc., do somewhat worse than Wallerstein's more advantaged subjects

Divorce's financial implications

Divorce's financial implications

Divorce leads to the creation of two households rather than one, with consequent increased costs. All parties suffer these effects. As more men are awarded child custody, many of the roles and difficulties described below may be reversed, although men who are awarded custody have historically been less likely to be awarded child support or alimony.

Women often financially suffer as a result of divorce due to lower earning potential in many countries, and to their greater historical role in rearing children (these causes are not unrelated). They more often obtain custody of children after the divorce, reducing their ability to pursue well-paid employment. Child support collection is a major problem: some fathers do not accept that they have an obligation towards their children, while others accept such an obligation but cannot fulfill it. Many national and local governments provide some kind of welfare system for divorced mothers and their children. See single mother for details.

Men are also often victims of divorce, both financially and in other ways. Court-ordered alimony and child support can be beggaring, often pegged to large percentages of the higher-earning spouse's income. Such obligations can make it impossible for paying spouses to remarry, and if they do remarry, the law often puts the payor's prior obligations before his and his new family's needs. Additionally non-custodial spouses (more often men) are often blocked from access to their children. This damages the children as absence of fathers strongly decreases children's overall well-being (delinquency, mental health, stability of marriage in turn, etc). Groups such as Families Need Fathers fight this trend by working to promote healthy relationships between children and their non-custodial parents and other relatives.

Currently in the US, federal law makes non-payment of child support a felony, whereas refusal to honor court-ordered visitation decision is not, and seldom results in any punishment or compulsion to change. Additionally the Bradley Amendment revoked due process for support-paying parents, removing the ability of judges to reduce child support obligations in cases of unemployment, state statutes of limitations, bankruptcy, incapacitation or other extremity. Some feel this gives inordinate power to custodial parents, at the expense of both their former spouses and their children.

In the USA, a spouse who resides in a community property state and lacks a prenuptial agreement can be at a disadvantage if he or she earns more than the other spouse. In these states, the property is split 50/50 regardless of who earned the money. This is true even if the poorer spouse has committed adultery or initiates the divorce. On the other hand, less tangible assets such as putting a spouse through school or providing a good home are difficult to value in dollars, and a spouse whose contributions are less tangible can also be disadvantaged.

Most states in the USA are not community property states. However, some large and populous ones such as California, along with a few smaller ones, are. Some states instead impose a standard of "equitable" rather than equal division, attempting to address the many complexities involved in separating out years of financial sharing. In such state judges have greater power to balance various contributions to the marriage.

A prenuptial agreement before marriage can reduce conflict over financial division should a divorce be undertaken later, although courts sometimes overturn these agreements.

Religious/cultural attitudes to divorce

Religious/cultural attitudes to divorce

Many countries in Europe, such as France prohibited divorce as it is not condoned by the Catholic church. Sometimes citizens travelled to other jurisdictions to obtain a divorce.

In Islam divorce is allowed, although discouraged. Only the husband can decide to have a no-fault divorce. Under Sharia law, a husband may repeat a declaration of divorce three times. Also, for husbands, plural marriage is allowed under Sharia, but. In Sharia, the custody of the children would always go to the father (more on Islamic child custudy later).

Islam, unlike Christianity, considers marriage to be a legal contract; and the act of obtaining a divorce is essentially the act of legally dissolving the contract. If a man pronounces three divorces against a free woman, or two against a slave, he can lawfully wed neither of them again, unless they have been espoused by another, and this second husband dies, or divorces them.

Judaism recognized the concept of "no-fault" divorce thousands of years ago. Judaism has always accepted divorce as a fact of life (for example, see Deuteronomy chapters 22 and 24), albeit an unfortunate one (for example, the prophet Malachi states "'I hate divorce,' says the LORD God of Israel"). Judaism generally maintains that it is better for a couple to divorce than to remain together in a state of constant bitterness and strife. Also see [2] and Get in the Conflict of Laws.

Within Christianity, divorce has become almost commonplace, and the interpretation of the Holy Scripture on divorce widely varies among Christian denominations. However, the first 400 years of the Early Church, the church maintained a rather unanimous voice on divorce.

The Christian teachings on divorce come directly from the teachings of Jesus Christ of Nazareth and the Apostle Paul of Tarsus. Jesus' teachings can be divided into two categories: those directed towards the Jews in Matthew 5:31-32 and Matthew 19:3-9, and those written primarily for the Gentiles in Mark 10:11-12 and Luke 16:18 (for example see [3]). The essence of Jesus' teachings on divorce was to state the fact eight times that the one who remarries after divorce "committeth adultery". Two of the eight adultery statements contained exceptions in the case that the wife had committed fornication, while the other six were unconditional. Although Jesus touched on the subject of divorce in three of the Gospels, Paul gives a rather extensive treatment of the subject in his First Epistle to the Corinthians chapter 7. His clear teachings on the subject were: "Let not the wife depart from her husband... let not the husband put away his wife" (1 Corinthians 7:10-11). Once again, he alludes to his position on divorce in his Epistle to the Romans, albeit an allegory, when he states "For the woman which hath an husband is bound by the law to her husband so long as he liveth...So then if, while her husband liveth, she be married to another man, she shall be called an adulteress" (Romans 7:2-3).

Causes of divorce

Causes of divorce

An annual study in the UK by management consultants Grant Thornton, estimates the main causes of divorce based on surveys of matrimonial lawyers (see [1]).

The main causes in 2004 (2003) were:

* Extra-marital affairs - 27% (29%)
* Family strains - 18% (11%)
* Emotional/physical abuse - 17% (10%)
* Mid-life crisis - 13% (not in 2003 survey)
* Addictions, e.g. alcoholism and gambling - 6% (5%)
* Workaholism - 6% (5%)

According to this survey, men engaged in extra-marital affairs in 75% (55%) of cases; women in 25% (45%).

In cases of family strain, women's families were the primary source of strain in 78%, compared to 22% of men's families.

Emotional and physical abuse were more evenly split, with women affected in 60% and men in 40% of cases.

In 70% of workaholism-related divorces it was men who were the cause, and 30% women.

The 2004 survey found that 93% of divorce cases were petitioned by women, very few of which were contested.

53% of divorces were of marriages that had lasted 10 to 15 years, with 40% ending after 5 to 10 years. The first 5 years are relatively divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce.

Regarding divorce settlements, as defined by this survey women obtained a better or considerably better settlement than men in 60% of cases. In 30% of cases the assets were split 50-50, and in only 10% of cases did men achieve better settlements (down from 24% the previous year). The 2004 report concluded that campaigns like that of Fathers 4 Justice must succeed in increasing the percentage of shared residence orders, in order for more equitable financial divisions to become the norm.

History of divorce

History of divorce

Divorce in some jurisdictions is a relatively recent phenomenon. In Canada there was no divorce law until the 1960s. Before that the only way to get divorced was to apply to the Canadian Senate where a special committee would undertake an investigation of a request for a divorce and if they found that the request had merit, the marriage would be dissolved by an Act of Parliament.

Great Britain


In Scotland, until 1560, when papal authority was abolished by Act of Parliament, the law on marriage was the canon law. This did not recognise divorce. With the Reformation, the common law recognised divorce for adultery and, by statute in 1573, desertion was also recognised as a ground for divorce. Thereafter, until 1830, the law was judicially developed by the Commissary Court of Edinburgh. In 1830, jurisdiction in divorce actions passed to the Court of Session. The grounds, however, remained the same until the development of the concept of the matrimonial offence resulted, in the Divorce (Scotland) Act 1938, in the addition of cruelty, sodomy, and bestiality as grounds; the concept of no-fault divorce was introduced in the same Act with the addition of ‘incurable insanity’ as a ground.

Growing recognition that ‘fault’ was not necessarily at the root of marriage breakdown led to the passage of the Divorce (Scotland) Act 1976, which provided that ‘irretrievable breakdown’ was the sole ground of divorce; but, contradictorily, went on to provide that this could only be evidenced by one of five sets of facts: adultery, desertion, unreasonable behaviour, two years separation plus the defenders consent to divorce, or five years separation. The third of these came to be so generously interpreted by the courts as to form the most popular ground for divorce for a time. Subsequently, the Sheriff Court acquired a concurrent jurisdiction in divorce actions; and the introduction of ‘do-it-yourself’ divorce has led to a situation in which the vast majority of divorces in Scotland are uncontentious; the very few exceptions mostly being those in which there is financial argument.

England and Wales

Legal recognition of divorce in England came long later. Prior to 1670 a marriage could only be ended by the Church courts if it could be shown to have never existed in the first place, either through inability to consent (e.g. insanity) or by want of capacity to marry (e.g. precontract, consanguinity, the two parties were related by a previous marriage). A marriage could also be ended if one of the parties was impotent or frigid when the marriage was contracted. It was also possible to get a legal separation from the church known as divorce a mensa et thoro (from board and hearth). Grounds for the separation included adultery, cruelty and heresy, and it meant that any offspring were not rendered illegitimate. However neither spouse could remarry until the other had died. In his 1990 work on the subject, Road to Divorce: England 1530-1987, the late historian Lawrence Stone was one of the first to point out that the legal barriers to divorce were not an absolute bar against remarriage, since the short life expectancy of the time guaranteed that one spouse would certainly outlive the other (and would soon be free to marry again).

In the 1530s, Henry VIII decided that he wished to divorce his first wife, Catherine of Aragon, on the grounds of affinity; he argued that, since Catherine was his brother Arthur's widow, the marriage had never really existed. Catherine claimed that her marriage to Arthur had never been properly consummated. In 1533 Thomas Cranmer was appointed Archbishop of Canterbury and he declared that Henry's marriage to Catherine was void, effectively bastardizing their daughter Mary (later Mary I). In 1536 Cranmer similarly declared Henry's marriage to Anne Boleyn void, most probably due to Henry's previous relationship with Anne's sister Mary Boleyn. Cranmer tried to reform the Church of England's Canon law so that it allowed divorce for adultery, cruelty, and desertion, but these changes were not implemented.

Following Lord Roos's divorce on the grounds of adultery in 1670, the procedure for divorce in English law went as follows: first the husband brought an action for "criminal conversation" to establish the adultery, then he obtained a divorce a mensa et thoro from the church and then finally he petitioned the House of Lords to grant the divorce.

In 1853 a Royal Commission made recommendations on how to improve the procedure of getting a divorce. In 1857 the Court for Divorce and Matrimonial Causes, based in London, was established, taking over the divorce duties of the church courts. Men could obtain divorce for adultery, but women had to prove cruelty or desertion, in addition to their husband's adultery. In 1923 women were allowed to use the same grounds for divorce as men. In 1969, after much debate, 'irretrievable breakdown', on the basis of one of five grounds became the test for divorce.

Alternatives to divorce are 'nullity' (see annulment) or 'judicial separation' which may be suitable where there is religious scruples against divorce!


Divorce or dissolution of marriage is the ending of a marriage before the death of either spouse, which can be contrasted with an annulment which is a declaration that a marriage is void, though the effects of marriage may be recognized in such unions, such as spousal support, child custody and distribution of property.

In many developed countries, divorce rates have increased markedly during the twentieth century. Among the states in which divorce has become commonplace are the United States, Korea and members of the European Union. In the USA, Canada, the United Kingdom and some other developed Commonwealth countries, this boom in divorce developed in the last half of the twentieth century. Japan retains a markedly lower divorce rate, though it has increased in recent years. In addition, acceptance of the single-parent family has resulted in many women deciding to have children outside marriage as there is little remaining social stigma attached to unwed mothers in some societies. The subject of divorce as a social phenomenon is an important research topic in sociology.

A divorce must be certified by a court of law, as a legal action is needed to dissolve the prior legal act of marriage. The terms of the divorce are also determined by the court, though they may take into account prenuptial agreements, or simply ratify terms that the spouses have agreed on privately. Often, however, the spouses disagree about the terms of the divorce, which can lead to stressful (and expensive) litigation. A less adversarial approach to divorce settlements has also emerged in recent years, known as family mediation, an attempt to negotiate mutually acceptable resolution to conflicts.

Economic implications

Economic implications

According to the legal origins theory promoted by some economists, civil law countries tend to emphasize social stability, while common law countries focus on the rights of an individual. In this theory, this has a considerable impact of different countries' financial development, but it is not necessarily obvious to all that there is a difference between American, British and Australian development on one side and Norwegian, German and Italian development on the other.



The term "civil law" as applied to a legal tradition actually originates in English-speaking countries, where it was used to lump all non-English legal traditions together and contrast them to the English common law. However, since continental European traditions are by no means uniform, scholars of comparative law and economists promoting the legal origins theory usually subdivide civil law into three distinct groups:

* French civil law: in France, the Benelux countries, Spain and former colonies of those countries;
* German civil law: in Germany, Austria, Switzerland, Greece, Japan, South Korea and the Republic of China (Taiwan);
* Scandinavian civil law: in Denmark, Sweden, Finland, Norway and Iceland.

Portugal and Italy have evolved from French to German influence, as their 19th century civil codes were close to the Napoleonic Code and their 20th century civil codes are much closer to the German BGB. Legal culture and law schools have also come near to the German system. The law in these countries is often said to be of a hybrid nature.

The Dutch law or at least the Dutch civil code cannot be easily placed in one of the mentioned groups either, and it has itself influenced the modern private law of other countries. The present Russian civil code is in part a translation of the Dutch one.

Criminal procedure

Criminal procedure

Civil and common law system also differ considerably in criminal procedure. In general, the judge in a civil law system plays a more active role in determining the facts of the case. Most civil law countries investigate major crimes using a so-called inquisitorial system. Also, civil law systems rely much more on written argument than oral argument.

It is a common but incorrect belief that civil law systems do not offer the presumption of innocence, when in fact they do

Civil vs Common law

Civil vs Common law

Civil law is primarily contrasted against common law, which is the legal system developed among Anglo-Saxon peoples, especially in England.

The original difference is that, historically, common law was law developed by custom, beginning before there were any written laws and continuing to be applied by courts after there were written laws, too, whereas civil law develops out of the Roman law of Justinian's Corpus Juris Civilis proceeding from broad legal principles and the interpretation of doctrinal writings rather than the application of facts to legal fictions.

In later times, civil law became codified as droit coutumier or customary law that were local compilations of legal principles recognized as normative. Sparked by the age of enlightenment, attempts to codify private law began during the second half of the 18th century (see civil code), but civil codes with a lasting influence were promulgated only after the French Revolution, in jurisdictions such as France (with its Napoleonic Code), Austria (see ABGB), Quebec (see Civil Code of Quebec), Spain (Código Civil), the Netherlands and Germany (see BGB). However, codification is by no means a defining characteristic of a civil law system, as e.g. the civil law systems of Scandinavian countries remain largely uncodified, whereas common law jurisdictions have frequently codified parts of their laws, e.g. in the U.S. Uniform Commercial Code. There are also mixed systems, such as the laws of Scotland, Namibia and South Africa.

Thus, the difference between civil law and common law lies less in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general principles of the code, or by drawing analogies from statutory provisions to fill lacunae. By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly.

The underlying principle of separation of powers is seen somewhat differently in civil law and common law countries. In some common law countries, especially the United States, judges are seen as balancing the power of the other branches of government. By contrast, the original idea of separation of powers in France was to assign different roles to legislation and to judges, with the latter only applying the law (the judge as la bouche de la loi). Today, it is widely recognized that this is unworkable in practice. Case law (or, more properly, jurisprudence), plays a considerable role in virtually all civil law countries, even though the development of "judge-made law" through the rule of stare decisis is not formally recognized. As a practical matter, the dichotomy should thus not be overemphasized.

It should not be overlooked that there are considerable differences between the legal methodologies of various civil law countries. For example, it is often said that common law opinions are much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. This is in principle true in France, where judges cite only legislation, but not prior case law. (However, this does not mean that judges do not consider it when drafting opinions.) By contrast, court opinions in German-speaking countries can be as long as American ones, and normally discuss prior cases and academic writing extensively.

There are, however, certain sociological differences. Civil law judges are usually trained and promoted separately from attorneys, whereas common law judges are usually selected from accomplished and reputable attorneys. Also, the influence of academic writing by law professors on case law tends to be much greater in civil law countries.



The civil law is based on Roman law, especially the Corpus Juris Civilis of Emperor Justinian, as later developed through the Middle Ages by mediæval legal scholars.

Originally civil law was one common legal system in much of Europe, but with the development of nationalism in the 17th century Nordic countries and around the time of the French Revolution, it became fractured into separate national systems. This change was brought about by the development of separate national codes. The French Napoleonic Code and the German and Swiss codes were the most influential ones. Around this time civil law incorporated many ideas associated with the Enlightenment.

Because Germany was a rising power in the late 19th century when many Asian nations were introducing civil law, the German Civil Code has been the basis for the legal systems of Japan and South Korea. In China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China which remains in force in Taiwan.

Some authors consider that civil law later served as the foundation for socialist law used in Communist countries, which in this view would basically be civil law with the addition of Marxist-Leninist ideas.



Civil or civilian law is a legal tradition which is the basis of the law in the majority of countries of the world, especially in continental Europe, but also in Quebec (Canada), Louisiana (USA), Japan, Latin America, and most former colonies of continental European countries. The Scottish legal system is usually considered to be a mixed system in that Scots law has a basis in Roman law, combining features of both uncodified Civil law dating back to the Corpus Juris Civilis and common law with medieval sources, further influenced by English law after the Union of 1707.

In the United States, civil law is formally the basis of the law of Louisiana (as circumscribed by federal law and the U.S. Constitution), although in western and southwestern parts of the U.S., laws in such diverse areas as divorce and water rights show the influence of their Iberian civil-law heritage, being based on distinctly different principles from the laws of the northeastern states colonized by settlers with English common-law roots.

Civil law

Civil law is a codified system of law that sets out a comprehensive system of rules that are applied and interpreted by judges. It has its origins in Roman law. However, modern systems are descendants of the 19th century codification movement, during which the most important codes (most prominently the Napoleonic Code) came into existence. The civilian system is by and large the most widely practiced system of law in the world.

Works on the common law

Works on the common law

The definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law.

The U.S. Supreme Court Justice Oliver Wendell Holmes Jr. also published a short volume called The Common Law which remains a classic in the field. In the United States, the Corpus Juris Secundum is a compendium of the common law and its variations throughout the various state jurisdictions. The American Law Institute publishes Restatements of the common law which are often cited by American courts and lawyers when they need to invoke uncodified common law doctrines.

Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and in previous court decisions. The legal writings used are called Institutional Texts and come mostly from the 17th, 18th and 19th centuries. Examples include Craig, Jus Feudale (1655) and Stair, The Institutions of the Law of Scotland (1681).

Basic principles of common law

Basic principles of common law

Statutes which reflect English common law are understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date.

By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the damages or compensation available are limited to those outlined in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly -- that is, limited to their precise terms -- because the courts generally recognize the legislature as being supreme in deciding the reach of judge made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism).

Where a tort is rooted in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon

Common law legal systems

Common law legal systems

The common law constitutes the basis of the legal systems of: England and Wales, the Republic of Ireland, the states of the United States (except Louisiana), Canada (except Quebec civil law), Australia, New Zealand, South Africa, India, Sri Lanka, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries. Essentially, every country which has been colonised at some time by Britain uses common law except those that had been colonized by other nations, such as Quebec (which follows French law to some extent) and South Africa (which follows Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law.

The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system.

The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for instance, in matters of criminal and commercial law).

Scotland is often said to use the civil law system but in fact it has a unique system which combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707. Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic legal systems operate in Quebec, Louisiana and South Africa. These systems are referred to as mixed legal systems.

The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)

The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.

History of the common law

History of the common law

Common law originally developed under the auspices of the adversarial system in historical England from judicial decisions that were based in tradition, custom, and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence and as developing the body of law recognizing and regulating contracts. Today common law is generally thought of as applying only to civil disputes; originally it encompassed the criminal law before criminal codes were adopted in most common law jurisdictions in the late 19th century, although many criminal codes reflect legislative attempts to codify the common law. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.

Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.

In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.

Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket, the Archbishop of Canterbury. Things were resolved eventually, at least for a time, in Henry's favor when a group of his henchmen murdered Becket. For its part, the Church soon canonized Becket as a saint.

As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.

In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation) survived well into the 20th century in most jurisdictions. In the federal courts there is no separation between law and equity; Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court.

common law

The common law forms a major part of the law of many countries, especially those with a history as British territories or colonies. It is notable for its inclusion of extensive non-statutory law reflecting a consensus of centuries of judgments by working jurists.

Tuesday, December 06, 2005

Effectiveness compared to direct action

In 2004, a study by University of Washington sociologist Jon Agnone, compared the number of bills passed between 1960 and 1994 by the U.S. Congress with tactics used by 'green' groups within the same year. The study showed each protest raised the number of pro-environment bills passed by 2.2%, whereas neither efforts at conventional lobbying on Capitol Hill nor aimed at affecting the state of public opinion made any difference. The study concluded that direct action, like protests at public venues or disrupting political events, is more likely to influence environmental policy than talking to politicians.


The term astroturfing pejoratively describes formal public relations projects which deliberately seek to engineer the impression of spontaneous, grassroots behavior, sometimes through the use of front organizations. The goal is the appearance of independent public reaction to a politician, political group, product, service, event, etc., by centrally orchestrating the behavior of many diverse and geographically distributed individuals.

Issue advocacy

Issue advocacy is any speech relating to issues and the policy positions taken by political candidates and elected officials. Any group or individual can engage in issue advocacy. It can be as simple as a single statement, or it can be as involved as a multi-million dollar campaign of broadcast and print advertisements spreading the same message. A message stops being issue advocacy if it expressly endorses the election or defeat of a candidate (See also single-issue politics).

Examples of advocacy in the computing world include operating system advocacy and open source advocacy.


Advocacy is an umbrella term for organized activism related to a particular set of issues. Advocacy is expected to be non-deceptive and in good faith, though it is sometimes tainted by use of propaganda. It is almost always organized into or by an advocacy group or special interests. In other instances, an individual may act as a lobbyist, on their own account, or on behalf of a corporation or industry.

Range of Materials

For more than 300 years, the Faculty has maintained within Parliament House the Advocates' Library, often regarded by the Faculty as the finest working law library in the United Kingdom.

Range of Materials

A comprehensive range of materials has been built up over the last three hundred years, and a modern library management system utilising the latest technology, ensure that the Advocates Library is able to meet the increasingly complex needs of members of the Faculty of Advocates. In addition, the library's stock is made available to others via the National Library of Scotland.

History of the Advocates Library

The Library was formally inaugurated in 1689. From the start the collection was a general one. In 1709 the status of the collection was confirmed when Queen Anne's Copyright Act gave the Keeper of the Library the right to claim a copy of every book published in the British Isles. The collection was enhanced by purchase and donation, particularly of continental imprints and of manuscripts.

The Advocates Library came to be recognised as the natural depository for literary materials of national importance. By the 1850s the Library had become in effect Scotland's national library. In 1925 the National Library of Scotland was established when the Faculty gifted to the nation its whole non-law collections comprising 750,000 books, pamphlets, manuscripts, maps and sheet music. The Advocates Library has retained the copyright privilege for law publications.

In recent years the Advocates Library has expanded to take account of the increase in membership of the Faculty. Advances in technology have been embraced with the installation of a new library management system, incorporating an on-line catalogue, which further enhances the services the library is able to offer.

Current Membership

The Faculty includes practising and non-practising members. The current practising Bar includes an increasing proportion of women. Women make up approximately one quarter practising membership. Total numbers now stand at just over 460, of whom approximately one fifth are Queen's Counsel. The taking of Silk, as assumption of the title of Queen's Counsel is commonly known, depends upon the prerogative of Her Majesty. This is exercised through the First Minister upon the recommendation of the Lord Justice General. The Dean of Faculty is consulted in the course of this process. As a general rule, Silk is awarded to experienced Counsel, who are considered to have achieved distinction in full-time practice.

Free Representation Unit

During the period of devilling, trainee Advocates carry out work for the Free Representation Unit. This is part of the Faculty's commitment to providing access to justice for everyone. The Free Representation Unit enables qualified persons to provide advice and representation to clients of Citizens Advice Bureau from across Scotland. (In order to devil a person has to first undergo a period of training in a solicitor's office.)

Organisation and Governance

The Faculty is led by its Dean, who is elected by the whole membership, supported by the Vice-Dean, Treasurer, Clerk, Keeper of the Library and Chairman of Faculty Services Ltd, all of whom are also elected. There is no standing council as with the Bar in England.

It is self-regulating, and the Court of Session delegates to the Faculty the task of preparing Intrants for admission as Advocates. This task involves a process of examination and practical instruction known as devilling, during which Intrants benefit from intensive structured training in the special skills of advocacy. No-one can be presented to the Court as suitable to be a practising Advocate without satisfying these training requirements. The Faculty also provides for its Members an ongoing programme of talks, seminars and conferences covering a wide range of topics.

The Faculty of Advocates

The Faculty of Advocates is an independent body of lawyers who have been admitted to practise as Advocates before the Courts of Scotland, especially the Court of Session and the High Court of Justiciary.) The Faculty of Advocates is a constituent part of the College of Justice.

Advocates are privileged to plead in any cause before any of the Courts of Scotland, including the Sheriff Courts and District Courts, where counsel are not excluded by statute.

Professional Development

Since the Faculty began to offer skills training to devils and members in 1994, the programme, particularly for devils has developed extensively and continues to evolve, and is now recognised as one of the best in the world. Members of Faculty have regularly travelled to the United States, Australia, South Africa, England and Ireland to take part in advocacy training events, while the Faculty has welcomed leading advocacy instructors from those countries to Scotland.

Every member admitted to the Faculty since 1995 has undertaken some form of skills training. In addition periodic skills workshops are arranged for practising members, so that the majority of the practising Bar has now undertaken skills training. The Faculty's training programme is built on the experience and commitment of practising members who have been trained as skills instructors, both in Scotland and in other places. Over the life of the programme so far more than 60 members have been trained as instructors, and they give freely of their time and experience to train new generations of advocates.

Lawyers in other EU states (but not England and Wales) may have limited rights of audience in the Scottish supreme courts if they appear with an advocate, and a few solicitors known as 'solicitor-advocates' have rights of audience, but for practical purposes advocates have almost exclusive rights of audience.

Recent Developments

In recent years, more Advocates have come to the Scottish Bar after some time as solicitors, but it is possible to qualify with a law degree, after a year's traineeship in a solicitor's office and almost a year as a 'devil', or apprentice advocate. There are exceptions for lawyers who are qualified in other European jurisdictions, but all must take the training course as devils.

Every year, a number of young European lawyers have a placement with advocates under the European Young Lawyers Scheme organised by the British Council. They are known as 'Eurodevils' in distinction to the Scottish 'devils'.

Admission to the Faculty of Advocates

At the end of the devilling period, a devil's admission to the Faculty is dependent on certification by his or her principal devilmaster that the devil is a fit and proper person to be an advocate, and that the devil has been involved in a wide range of work in the course of his or her devilling. A devil's competence in a number of aspects of written and oral advocacy is assessed during devilling, and if a devil is assessed as not to be competent, he or she will not be admitted to the Faculty. Further details of this process can be found in the assessment section.

Becoming an Advocate

The process of becoming an Advocate is referred to as devilling. All Intrants will hold an LL.B. (Bachelor of Laws) and the Diploma in Legal Practice qualifying them as solicitors or be members of the Bar in another common law jurisdiction.


Devilling, as the period of pupillage or training to become an advocate is generally known, lasts between eight and nine months, and comprises a mix of skills training courses and time spent working with a devilmaster. The compulsory skills training courses, are spread across the devilling period and last for about ten weeks in total. For the balance of the period of devilling, devils work closely with their devilmasters.

All devils have a principal devilmaster who is a practising member of the junior bar of at least seven years standing, and working primarily in civil practice. Devils will also spend part of the time with another devilmaster practising in the criminal courts, and many devils spend a short period of time with a third devilmaster working in a different aspect of civil work from his or her principal devilmaster. All devils and devilmasters are issued with the current edition of the Faculty's Devil's Handbook.

In order to take a devil, a devilmaster must be approved by the Dean of Faculty. The Clerk of Faculty maintains a list of approved devilmasters, who may be contacted by email or via the Clerk's office.

Devils are expected to attend court with their devilmasters, and to attend consultations with solicitors instructing their devilmaster and with the solicitors' clients. A devil will also discuss the preparation and presentation of the cases in which their devilmaster is involved and will be required to draft written pleadings and opinions.

During the period of devilling, devils also carry out work for the Free Representation Unit. This is part of the Faculty's commitment to providing access to justice for everyone. The Free Representation Unit enables devils to provide advice and representation to clients of Citizens Advice Bureau from across Scotland.

Independent Working

Advocates do not operate in chambers; they are entirely independent, although organised in eleven 'stables' for administrative purposes, and work out of the Advocates Library in Parliament House where the Scottish supreme courts (the Court of Session and the High Court of Justiciary) are situated, in a similar way to barristers in the Republic of Ireland and Northern Ireland. They do not act directly for members of the public, taking instructions from a solicitor, a non-Scottish lawyer, or another professional.

Faculty of Advocates

In Scotland, Advocates are regulated by the Faculty of Advocates in Edinburgh. The Faculty of Advocates has about 750 members, of whom about 460 are in private practice. About 75 are Queen's Counsel. The Faculty is headed by the Dean of the Faculty who, along with the Vice-Dean, Treasurer, Clerk are elected annually by secret ballot.

The Faculty has a service company, Faculty Services Ltd, to which almost all advocates belong and which organises the stables and fee collection. This gives a guarantee to all newly-called advocates of a place. There is an agreement with the Law Society of Scotland, which is the professional body for Scottish solicitors, about the payment of fees, as traditionally advocates were not permitted to sue for their fees because these were honoraria.


An advocate is one who speaks on behalf of another, especially in a legal context. Implicit in the concept is the notion that the represented lacks the knowledge, skill, ability, or standing to speak for themselves. Common advocates include lawyers, solicitors and barristers.

Civil law jurisdictions

As European's law systems are based on continental civil law, the situation in many European countries is quite different from common law countries.

In Continental Europe any person who possesses a degree in law is called "lawyer" (or a jurist).

Such lawyers can 'practice' law as employees hired by law firms or legal departments of other business entities. However, being a lawyer does not necessarily mean that one has the privileges usually attributed to "attorney" or "solicitor" in the United States or Canada. Due to such dualism, in Europe there are two classes of lawyers, the jurists and what is many places known as advocates.

United States of America

In the United States, an attorney is similar to an agent, a person who has been formally empowered by someone else (a "principal") to act on behalf of the principal.

A professional attorney authorized to plead cases on behalf of and in place of their clients (a lawyer) is called an attorney-at-law, while someone authorized to act on someone else's behalf in a legal or business matter is an attorney-in-fact, who does not have to be a lawyer.

The Bureau of Labor Statistics (1) estimates that there are over 500,000 practicing lawyers in the U.S.

It is frequently said that there are more lawyers per capita in the U.S. than in any other country in the world. This statistic is misleading because it is difficult to compare numbers of law professionals between different legal systems. The roles of these professionals vary and some of the work that is done in the United States by a lawyer is performed by several different types of professionals in other countries.

The Commonwealth

In the Commonwealth solicitors may practice before lower courts, but their main (and traditionally only) work is outside the courts, in such areas as legal advice (which may be highly specialized), property conveyancing, wills and estates, preparing legal documents for business transactions and negotiating the legal terms of commercial contracts.

Barristers may practice before lower, superior and high courts. Traditionally (and still for major cases) both a solicitor (for advice) and a barrister (for representation) were required for legal representation before the courts.

In recent years however, the exclusive rights of audience in higher courts held by barristers have been eroded by the introduction of Solicitor Advocates. Solicitors who are described as such have usually received specialised training including tuition on the practices and formalities of court. However, due to the costs and time associated with this training, the majority of solicitor advocates practice in the fields of commercial law or corporate litigation. Indeed, one of the reasons for introducing Solicitor Advocates was to act as a check on the high costs associated with representation in commercial cases - law firms are now able to offer in-house representation for their clients at substantially reduced cost.

Other common law jurisdictions, such as, Malaysia, Singapore, Canada (excluding the province of Quebec), and certain states in Australia, have a fused legal profession, whereby lawyers are licensed as both barristers and solicitors and can practice as both, even though most lawyers in these jurisdictions spend most of their time practicing as one or the other but seldom both. For example, in Canada (other than Quebec), a lawyer is called "Barrister and Solicitor", but informally by the title of "lawyer".

Unlike the United States most Commonwealth countries subject their lawyers and judges to strict court dress requirements.

Common law jurisdictions

In common law jurisdictions there are generally two kinds of lawyer solicitors and barristers. Each has a specific role in the legal system. In general, solicitors will work for a client, prepare the case and may present it in court (usually just the lower courts), whereas a barrister will present cases in court (particularly the higher courts where they can have exclusive rights of audience.)

In Scotland barristers are called Advocates.


In the United States, a lawyer is a person licensed by the state to advise clients in legal matters and represent them in courts of law and in other forms of dispute resolution. Most countries today require professional law advisors in their judicial systems. Lawyers have many names in different countries, including "advocate", "attorney", "barrister", "counsel", "counsellor", "civil law notary" and "solicitor"; many of these names indicate specific classes or ranks of jurists.

Law is a theoretical and abstract discipline, and working as a lawyer represents the "practical" application of legal theory and knowledge to solve real problems or to advance the interests of those who retain (i.e., hire) lawyers for legal services.

The role of the lawyer can vary significantly across legal jurisdictions. For instance, in some countries, lawyers may be required to lead or manage criminal investigations. In the United States, lawyers advise their clients regarding their rights, and argue in favor of the best interests of their clients. In the United States, lawyers have taken over functions that used to be performed by other jurists such as the civil law notary or paralegal.

Sunday, October 16, 2005

En España, el Tribunal Constitucional es el órgano constitucional competente para conocer:

1. Del recurso de inconstitucionalidad contra leyes y disposiciones normativas con fuerza de ley (ej. Decretos-Leyes y Decretos legislativos).
2. Del recurso de amparo por violación de los derechos fundamentales y de las libertades públicas
3. De los conflictos de competencia entre el Estado y las Comunidades Autónomas o de los de éstas entre sí.
4. De las demás materias que le atribuyan la Constitución o las leyes.

Del recurso de ilegalidad de los reglamentos, es competente la jurisdicción contencioso-administrativa, no el Tribunal Constitucional, ya que al ser normas emanadas del Gobierno y de la Administración pública (a través de la potestad reglamentaria) que no tienen fuerza de ley, no cabe recurso de inconstitucionalidad.
El poder ejecutivo y el legislativo son dos poderes que en ocasiones también se enfrentan, las luchas de poder de los integrantes del legislativo suministran periódicamente a los nuevos integrantes del ejecutivo. Sin embargo el papel arbitral entre ambos requiere de un poder judicial fuerte y respetado como uno de los poderes fundamentales del estado cuya independencia es un valor a preservar porque de ella depende que el sistema no deje de funcionar y la democracia de paso a la tiranía.

La estructura del poder judicial varía de país en país, así como los mecanismos usados en su nombramiento. Generalmente existen varios niveles de tribunales, o juzgados, con las decisiones de los tribunales inferiores siendo apelables ante tribunales superiores. Con frecuencia existe una Corte Suprema o Tribunal Supremo que tiene la última palabra. En algunos países existe también un Tribunal o Corte Constitucional.
El Poder judicial es aquél que, de conformidad con la legislación vigente, es el encargado de la aplicación de las normas jurídicas en la resolución de conflictos.

Según la teoría clásica de Montesquieu, la división de poderes garantiza la libertad del ciudadano. Montesquieu compuso su teoría después de un viaje a Inglaterra en donde interpretó que un poder judicial independiente puede ser un freno eficaz del ejecutivo.
Según la extensión de su competencia

* Tribunales de competencia común o mixtos: son aquellos tribunales que tienen competencia para conocer de toda clase de asuntos o para conocer de una materia y, además, de otros asuntos de competencia especial a falta o inexistencia, en el respectivo territorio jurisdiccional, de un tribunal con esa competencia. Los tribunales superiores son. generalmente, de competencia común.

* Tribunales de competencia especial: son aquellos que tienen competencia de ciertos asuntos con exclusión de otro
Según su jerarquía

* Tribunales inferiores: son aquellos que, en la respectiva organización jerárquica y piramidal de los sistemas judiciales, ocupan el grado inferior. Esta clasificación sea hace desde un punto de vista administrativo y no atendiendo al ejercicio de la función jurisdiccional. Generalmente son tribunales unipersonales.

* Tribunales superiores: son aquellos que, en la respectiva organización judicial, ocupan el grado superior. Por lo general, son tribunales colegiados.
Según la fase del procedimiento en que intervienen

* Tribunales de instrucción: son aquellos a los cuales les corresponde todas las actuaciones preparatorias del juicio, generalmente de investigación criminal.

* Tribunales sentenciadores: son aquellos que reciben la actuación probatoria, provenientes de los tribunales instructores, estando encargados de dictar sentencia en tales asuntos.
Según su composición

* Tribunales unipersonales: son aquellos constituidos por un solo juez. Se llaman comúnmente juzgados.

* Tribunales colegiados: son aquellos formados por un número plural de jueces. Son denominados comúnmente cortes o simplemente tribunales.
Según su naturaleza

* Tribunales ordinarios: son aquellos a los cuales les corresponde el conocimiento de todos los asuntos que se promueven en el respectivo país, cualquiera que sea la naturaleza o la calidad de las personas que en ellos intervienen, salvo las excepciones legales. Estos tribunales son la regla general en los sistemas judiciales y, en la mayoría de los casos, llevan consigo la idea de subordinación del inferior respecto del superior.

* Tribunales especiales: son aquellos establecidos por la Constitución o las leyes para juzgar determinadas personas o para resolver ciertas materias que, por circunstancias particulares gozan, de este privilegio. Su caracter especial no altera su función como órgano jurisdiccional ni su integración por jueces.

* Tribunales arbitrales: son aquellos constituidos por jueces árbitros, es decir, por miembros que no son funcionarios públicos y son remunerados por las partes a quienes prestan sus servicios.
El tribunal de justicia (juzgado o corte) es un órgano público cuya finalidad principal es ejercer la jurisdicción, o sea, resolver litigios con eficacia de cosa juzgada. Sin perjuicio, de cumplir actos de otra índole que las leyes que los organizan les puedan atribuir (denominados, en general, actos no contenciosos).

No debe confundirse el órgano jurisdiccional (el tribunal), con las personas que en calidad de funcionarios sirven en él (jueces y demás personal auxiliar).
Aunque hay similitudes entre ambas clases de jueces, en sus funciones propiamente tales se logra apreciar una vasta diferencia, que por razones históricas se ha originado. El profundo cambio que sufrió el derecho, después de la unidad jurídica que compartía toda Europa, el Derecho romano, se deriva a los sistemas jurídicos actuales, tan diferentes, pero a la vez análogos entre sí; y en esta misma transformación los jueces tomaron distintos rumbos, marcándose decisivamente los papeles interpretativos y creativos que en estos sistemas se ejecutan.
No obstante con las revoluciones, la construcción de los Estados, las soberanías nacionales y la separación de poderes, se restringió categóricamente la función judicial, los jueces ya no podrían hacer el derecho, rechazándose la doctrina del "stare decisis". Así el juez del Derecho continental, se convierte en una especie de empleado experto (un mero empleado público), cuya función consiste simplemente en encontrar la disposición legislativa correcta. En definitiva el juez es un operador de una máquina diseñada y construida por los legisladores. Mientras en el Common Law el juez una especie de "héroe cultural" que posee "supremacía" .
La función de los jueces, en estos sistemas, tiene el mismo origen, sin embargo su evolución es muy dispar; en el Common Law podríamos situar al juez en un papel de "creador judicial" del derecho, mientras que en el Derecho continental el juez esta adscrito a un papel más bien interpretativo.

Los jueces en Roma, antes del período imperial, no eran expertos en derecho, tenían un poder muy limitado, debiendo asesorarse por medio de jurisconsultos. Durante el período imperial su función principal era la aplicación de la voluntad del emperador. Fue en los tiempos medievales y prerrevolucionarios cuando su poder estuvo menos limitado y su actuación era similar a la de sus actuales jueces ingleses.
La autoridad del juez es conferida por el Estado, a través de diversos procedimientos, otorgada, según el país y fundamentalmente según la tradición jurídica que éste comprenda.

En América Latina, por ejemplo los jueces son nombrados por el Gobierno, en cambio en algunos estados de Estados Unidos son elegidos; estas diferencias, entre otras a grandes rasgos, se deben a la existencia de tradiciones legales de procedencia heterogénea.

Principalmente se distinguen tres, el Derecho continental, el Common Law y el Derecho socialista, sistemas que perduran hasta nuestros días. Su concepto de justicia y su interpretación no es el mismo, ya que como ocurre en el Common Law, la búsqueda de ese ideal se enfatiza más, por medio de procedimientos que difieren del derecho continental, donde la legalidad importa más que la propia búsqueda de resoluciones justas.
El juez es el funcionario que sirve en un tribunal de justicia y que se encuentra investido de la potestad jurisdiccional. También se caracteriza como la persona que resuelve una controversia o que decide el destino de un acusado, tomando en cuenta las evidencias o pruebas presentadas en un juicio.

Son funcionarios públicos, remunerados por el Estado y encargados de administrar justicia, de manera autónoma e indepediente.

Los jueces son inamovibles en sus cargos, mientras mantengan un buen desempeño de sus funciones. Asimismo, son responsables de sus actos ministeriales, civil y penalmente.

Si bien gozan de independencia en su actuar, sus resoluciones suelen ser revisables por los tribunales superiores jerárquicamente, mediante los llamados recursos judiciales, pudiendo ser éstas confirmadas, modificadas o revocadas
Los factores de competencia son aquellos que la ley toma en consideración, para distribuir la competencia entre los diversos tribunales de justicia del país.

Entre ellos encontramos:

* La materia: que es la naturaleza jurídica del asunto litigioso. Que puede ser civil, mercantil, laboral, penal, constitucional, etc.

* La cuantía: o sea, el valor jurídico o económico de la relación u objeto litigioso.

* El grado: que se refiere a la instancia o grado jurisdiccional, atendida la estructura jerárquica de los sistemas judiciales, en que puede ser conocido un asunto. Puede ser en única, primera o segunda instancia.

* El territorio: es decir, el lugar físico donde se encuentran los sujetos u objeto de la controversia o donde se produjo el hecho que motiva el juicio.

En doctrina se denomina, en conjunto, a la materia, cuantía y grado, competencia absoluta o competencia objetiva y al territorio competencia relativa o competencia territorial. Asimismo, hay algunos autores que llaman competencia funcional al factor grado.

Aplicando estos factores a una controversia, es posible determinar que tribunal es competente para ella, es decir, le corresponde resolver dicho asunto.
La competencia es la atribución legítima a ciertos órganos jurisdiccionales de determinadas pretensiones con preferencia a los demás órganos de la jurisdicción para su conocimiento y fallo.

Las reglas de competencia tienen por objeto determinar cual va a ser el tribunal que va a conocer, con preferencia o exclusión de los demás, de una controversia que ha puesto en moviento la actividad jurisdiccional. Por ello se ha señalado que, si la jurisdicción es la facultad de administrar justicia, la competencia fija los límites dentro de los cuales se ejerce tal facultad. O, dicho de otro modo, los jueces ejercen su jurisdicción en la medida de su competencia.

Mientras los elementos de la jurisdicción están fijados, en la ley , prescindiendo del caso concreto, la competencia se determina en relación a cada juicio.

Además, no sólo la ley coloca un asunto dentro de la esfera de las atribuciones de un tribunal, sino también es posible que las partes (prórroga de competencia o competencia prorrogada) u otro tribunal (competencia delegada, vía exhorto)
Estos límites pueden dar origen a disputas entre Estados (conflictos internacionales), entre dos poderes del Estado u órganos de distintas ramas del mismo poder (contiendas de jurisdicción) o entre dos o más poderes del Estado por sus atribuciones (contiendas de atribuciones).
* Límites en cuanto al espacio, se acostumbra a clasificarlos en:
o Límites externos: se entiende por tales a todos los elementos que permiten delimitar la zona de vigencia y aplicación en el espacio. Por regla general, será limite de la jurisdicción la soberanía de los Estados.
o Límites internos: son los que miran a la misma jurisdicción, prescindiendo de aquella pertenecientes a otros Estados, como también de las funciones atribuidas a los demás órganos del propio Estado. Surgiendo así la noción de competencia.
La actividad jurisdiccional se ejerce en el tiempo y en el espacio. En consecuencia, se habla que la jurisdicción posee límites atendido el tiempo que la detenta su titular y el ámbito espacial donde ella se ejerce.

* Límites en cuanto al tiempo: puesto que que una persona es juez porque está investido de la jurisdicción y ésta se detenta porque se es juez. El límite de la jurisdicción será el tiempo señalado por la Constitución o las leyes para el desempeño del cargo de juez.
Fase de la ejecución

La mayoría de los autores están de acuerdo que el poder de coerción es inherente a la jurisdicción, es decir, que es de la esencia que el tribunal de justicia tiene la facultad de hacer cumplir lo resuelto (ejecución o cumplimiento del fallo).

Algunos autores niegan la actividad jurisdiccional en esta última etapa, especialmente en relación al Derecho procesal penal, sosteniendo que está a cargo de una autoridad administrativa. Se argumenta en contra que, aun cuando en ciertos casos la sentencia se cumple administrativamente, la regla general es que se hagan cumplir por la vía jurisdiccional.

Las resoluciones judiciales, en la generalidad de los casos, se cumplen a través de lo que la doctrina denomina auxilios jurisdiccionales.
Fase de la decisión

En virtud de ésta, el tribunal declara el derecho frente al caso concreto, propuesto por las partes, lo que hace a través del acto procesal llamado, generalmente, sentencia judicial. Esta etapa de juzgamiento supone siempre la existencia del periodo anterior.

Es consideramdo el momento de la jurisdicción más importante, pues pone término al conflicto mediante el pronunciamiento de la sentencia.