Family law Entering into marriage Prenuptial agreement
Legal states similar
Cohabitation · Civil union
Dissolution of marriage Annulment · Divorce · Legal separation
Issues affecting children Adoption · Child abduction · Child abuse
Child custody · Child marriage
Child Protective Services (United States)
Child support · Contact (including visitation)
Emancipation of minors
Foster care · Grandparent visitation
Legal guardian · Legitimacy
Parental responsibility · Parenting coordinator
Parenting plan · Paternity
Residence in English family law · Ward
Conflict of laws Divorce · Marriage · Nullity
International child abduction
Related areas Adultery · Bigamy
Domestic violence · Incest
Divorce (or the dissolution of marriage) is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties (unlike annulment which declares the marriage null and void). Divorce laws vary considerably around the world but in most countries it requires the sanction of a court or other authority in a legal process. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt. Where monogamy is law, divorce allows each former partner to marry another; where polygyny is legal but polyandry is not, divorce allows the woman to marry another.
Between 1971 and 2011, five European countries legalised divorce: Italy, Spain, Portugal, Ireland and Malta. This leaves two countries in the world—the Philippines and Vatican City—that do not have a civil procedure for divorce.
"Divorcing one's parents" is a term sometimes used to refer to emancipation of minors.
- 1 Western law
- 2 Polygyny & Divorce
- 3 Statistics
- 4 History
- 5 Causes of divorce
- 6 Religion and divorce
- 7 Gender and divorce
- 8 See also
- 9 References
- 10 Further reading
- 11 External links
In some Western jurisdictions, divorce (legally referred to as 'dissolution of marriage') does not require a party to assert fault on the part of their partner leading to the breakdown of their marriage. Prior to the onset of 'no-fault' statutes, a party would have to prove a ground, typically 'desertion,' 'abandonment,' 'cruelty,' or 'adultery.' The requirement of proving a ground was revised (and withdrawn) by the terms of 'no-fault' statutes, which became popular in the United Kingdom, Australia, the United States, Canada, South Africa, and New Zealand in the late 1960s and early 1970s. In 'no-fault' jurisdictions, a simple, general allegation of 'irreconcilable differences,' or 'irretrievable break-down' with respect to the marriage relationship, sufficed to establish the end of the marriage.
In jurisdictions adopting the 'no-fault' principle in divorce proceedings, some courts may still take into account the behavior of the parties when dividing property, debts, evaluating custody and support—facts which almost always have considerable weight in fault proceedings. This is particularly true in custody cases, where the courts might consider many factors which mirror 'fault' grounds, such as drug abuse, alcoholism, violence, cruelty, instability, neglect and possibly the preference of an intelligent, mature child.
Despite this, in some countries (or states of the United States), the courts will seldom apply principles of fault, but might willingly hold a party liable for a breach of a fiduciary duty to his or her spouse (See for example, Family Code Sections 720 and 1100 of the California Family Code).
In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect. The terms of the divorce are usually determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses may have agreed to privately (this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable). In absence of agreement, a contested divorce may be stressful to the spouses. Contested divorces mean that one of several issues are required to be heard by a judge at trial level—this is more expensive and the parties will have to pay for a lawyer's time and preparation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate mutually acceptable resolution to conflicts. This principle in the United States is called 'Alternative Dispute Resolution' and continues to gain popularity.
In some other countries, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non-judiciary administrative entity. The effect of a divorce is that both parties are free to marry again.
The subject of divorce as a social phenomenon is an important research topic in sociology. In many developed countries, divorce rates increased markedly during the twentieth century. Among the nations in which divorce has become commonplace are the United States, the United Kingdom, Canada, Germany, Australia and Scandinavia. The only Western country where divorce is not legal is the British Crown Dependency of Sark.
Types of divorce
Though divorce laws vary among jurisdictions, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support.
Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, issues of division of property are typically determined by the law of the jurisdiction in which the property is located.
Under a no-fault divorce system, divorce requires no allegation or proof of fault of either party. The barest of assertions suffice. For example, in countries that require "irretrievable breakdown", the mere assertion that the marriage has broken down will satisfy the judicial officer. In other jurisdictions requiring irreconcilable differences, the mere allegation that the marriage has been destroyed by these differences is enough for granting a divorce. Courts will not inquire into facts. A "yes" is enough, even if the other party vehemently says "no".
The application can be made by either party or by both parties jointly.
Prior to the late 1960s, nearly all countries which permitted divorce also required proof by one party that the other party had committed an act incompatible to the marriage. This was termed "grounds" for divorce (popularly called "fault") and was the only way to terminate a marriage. Most jurisdictions around the world still require such proof of fault. In the United States, no-fault divorce is now available in all 50 states and the District of Columbia—New York, the last state to still require fault-based divorce, passed a bill in 2010 permitting no-fault divorce.
Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion of the parties (working together to get the divorce), or condonation (approving the offense), connivance (tricking someone into committing an offense), or provocation by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.
A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.
- Short marriage (less than 5 years)
- No children (or, in some states, when the spouses have resolved custody and set child support payments for children of the marriage)
- Minimal or no real property (no mortgage)
- Marital property is under a threshold (around $35,000 not including vehicles)
- Each spouse's personal property is under a threshold (typically the same as marital property)
It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children. Though this may be necessary, the courts would prefer parties come to an agreement prior to entering court.
Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them. In the majority of cases, forms are acquired from their respective state websites and a filing fee is paid to the state. Most U.S. states charge between $175 and $350 for a simple divorce filing. Collaborative divorce and mediated divorce are considered uncontested divorces. In the United States, many state court systems are experiencing an increasing proportion of pro se (i.e., litigants represent themselves without a lawyer) in divorce cases. In San Diego, for example, the number of divorce filings involving at least one self-representing litigant rose from 46% in 1992 to 77% in 2000, and in Florida from 66% in 1999 to 73% in 2001. Urban courts in California report that approximately 80% of the new divorce filings are filed pro se.
Collaborative divorce is a method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.
Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be more cost-effective than other divorce methods. e.g., going to court. Expense, they say, has to be looked at under the headings of financial and emotional. Also, the experience of working collaboratively tends to improve communication between the parties, particularly when collaborative coaches are involved and the possibility of going back to court post-separation or divorce is minimised. In the course of the collaboration, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot be used in court except by agreement between the parties.
Neither can any of the professional team retained in the course of the collaboration be brought to court. Essentially, they have the same protections as in mediation. There are two exceptions: 1) Any affidavit sworn in the course of the collaboration and vouching documentation attaching to same and 2) any interim agreement made and signed off in the course of the collaboration or correspondence relating thereto. The parties are in control of the time they are prepared to give their collaboration. Some people need a lot of time to complete and others will reach solutions in a few meetings. Collaborative practitioners offer a tightly orchestrated model with meetings scheduled in advance every two weeks and the range of items to be discussed apportioned in advance of signing up as well as the more open ended process, the clients decide.
Electronic divorce is a means that allows two persons married under certain jurisdictions, such as Portugal, to file an electronic request for a no-fault, collaborative divorce in a non-judiciary administrative entity. Specific cases, with no children, real property, alimony, or common address, can be decreed as summary within one hour.
Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include either party's attorneys, a neutral attorney, or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all. Divorce mediators may be attorneys who have experience in divorce cases or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters. Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.
Polygyny & Divorce
Polygyny is a significant structural factor governing divorce in countries where this is permitted. Little-to-no analysis has been completed to explicitly explain the link between marital instability and polygyny which leads to divorce. The frequency of divorce rises in polygynous marriages compared to monogamous relationships. Within polygynous unions, differences in conjugal stability are found to occur by wife order. There are 3 main mechanisms through which polygyny affects divorce: economic restraint, sexual satisfaction, and childlessness. Many women escape economic restraint through divorcing their spouses when they are allowed to initiate a divorce.
In 2008, 49% of all marriages involve a remarriage for one or both spouses. It is estimated that 40% of all marriages have ended in divorce as of 2008. On average, first marriages that end in divorce last about eight years. Of the first marriages for women from 1955 to 1959, about 79 percent marked their 15th anniversary, compared with only 57 percent for women who married for the first time from 1985 to 1989. The median time between divorce and a second marriage was about three and a half years.
In 2009 the overall divorce rate was in decline in the U.S., but so was the marriage rate. A 1995 study found a wide range of unassociated factors including frequency of sex, wealth, race, and religious commitment. In 2001, marriages between people of different faiths were three times more likely to be divorced than those of the same faith. In a 1993 study, members of two mainline Protestant religions had a 1 in 5 chance of being divorced in 5 years; a Catholic and an Evangelical, a one in three chance; a Jew and a Christian, a 40% chance.
The latter finding is contradicted by a study by the Barna Group, that conducts polls of interest to Christians. They report that a higher divorce rate was associated with infrequent church attendance.
While cohabitation has been shown to be associated with higher divorce rates, a study indicates that divorce-prone couples tend to first cohabit, and not that cohabitation by itself increases the likelihood of divorce. In Saskatchewan Canada, cohabitation as spouses is treated identically in Family Court to civil marriage. The only difference is that it is unknown whether civilly married persons can civilly marry other persons prior to divorce, but they can become legally sanctioned and recognized spouses of others (under cohabitation legislation), prior to divorcing their first spouse.
Success in marriage has been associated with higher education and higher age. 81% of college graduates, over 26 years of age, who wed in the 1980s, were still married 20 years later. 65% of college graduates under 26 who married in the 1980s, were still married 20 years later. 49% of high school graduates under 26 years old who married in the 1980s, were still married 20 years later. Population studies have found that in 2004 and 2008, liberal-voting states have lower rates of divorce than conservative-voting states, possibly because people in liberal states tend to wait longer before getting married. In 2009, 2.9% of adults 35–39 without a college degree were divorced, compared with 1.6% with a college education.
The National Center for Health Statistics reports that from 1975 to 1988 in the U.S., in families with children present, wives file for divorce in approximately two-thirds of cases. In 1975, 71.4% of the cases were filed by women, and in 1988, 65% were filed by women. It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement without a hearing (either with or without lawyers/mediators/collaborative counsel) about the property, children and support issues.
A 2008 study by Jenifer L. Bratter and Rosalind B. King conducted on behalf of the Education Resources Information Center examined whether crossing racial boundaries increased the risk of divorce. Using the 2002 National Survey of Family Growth (Cycle VI), the likelihood of divorce for interracial couples to that of same-race couples was compared. Comparisons across marriage cohorts revealed that, overall, interracial couples have higher rates of divorce, particularly for those that married during the late 1980s. The authors found that gender plays a significant role in interracial divorce dynamics: According to the adjusted models predicting divorce as of the 10th year of marriage, interracial marriages that are the most vulnerable involve White females and non-White males (with the exception of White females/Hispanic White males) relative to White/White couples. White wife/Black husband marriages are twice as likely to divorce by the 10th year of marriage compared to White/White couples, while White wife/Asian husband marriages are 59% more likely to end in divorce compared to White/White unions. Conversely, White men/non-White women couples show either very little or no differences in divorce rates. Asian wife/White husband marriages show only 4% greater likelihood of divorce by the 10th year of marriage than White/White couples. In the case of Black wife/White husband marriages, divorce by the 10th year of marriage is 44% less likely than among White/White unions. Intermarriages that did not cross a racial barrier, which was the case for White/Hispanic White couples, showed statistically similar likelihoods of divorcing as White/White marriages.
One study estimated that legal reforms accounted for about 20% of the increase in divorce rates in Europe between 1960 and 2002.
The rate of divorce in the United Kingdom has been dropping in recent years. In 2007 the divorce rate in England and Wales was recorded at 11.9 people per every 1000 (1.2%) of the married population. This is the lowest divorce rate recorded since 1981. It fell again in 2008 to 11.5 per thousand, the lowest rate since 1979.
In Australia, nearly every third marriage ends in divorce. After reaching a peak divorce rate of 2.7 per 1000 residents in 2001, the Australian rate declined to 2.3 per 1000 in 2007.
In Japan, divorces were on a generally upward trend from the 1960s until 2002 when they hit a peak of 290,000. Since then, both the number of divorces and the divorce rate have declined for six years straight. In 2010, the number of divorces totaled 251,000, and the divorce rate was 1.99 (per 1,000 population).
The ancient Athenians liberally allowed divorce, but the person requesting divorce had to submit the request to a magistrate, and the magistrate could determine whether the reasons given were sufficient.
Divorce was rare in early Roman culture but as their empire grew in power and authority Roman civil law embraced the maxim, "matrimonia debent esse libera" ("marriages ought to be free"), and either husband or wife could renounce the marriage at will. Though civil authority rarely intervened in divorces, social and familial taboos guaranteed that divorce occurred only after serious circumspection. The Christian emperors Constantine and Theodosius restricted the grounds for divorce to grave cause, but this was relaxed by Justinian in the sixth century.
After the fall of the Roman Empire, familial life was regulated more by ecclesiastical authority than civil authority. By the ninth or tenth century, the divorce rate had been greatly reduced under the influence of the Church, which considered marriage a sacrament instituted by God and Christ indissoluble by mere human action.
Although divorce, as known today, was generally prohibited after the tenth century, separation of husband and wife and the annulment of marriage were well-known. What is today referred to as "separate maintenance" (or "legal separation") was termed "divorce a mensa et thoro" ("divorce from bed-and-board"). The husband and wife physically separated and were forbidden to live or cohabit together; but their marital relationship did not fully terminate. Civil courts had no power over marriage or divorce. The grounds for annulment were determined by Church authority and applied in ecclesiastical courts. Annulment was for canonical causes of impediment existing at the time of the marriage. "For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio." The Church held that the sacrament of marriage produced one person from two, inseparable from each other: "By marriage the husband and wife are one person in law: that is, the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything." Since husband and wife became one person upon marriage, that oneness could only be annulled if the parties improperly entered into the marriage initially.
Secularisation in Europe and United States
After the Reformation, marriage came to be considered a civil contract in the non-Catholic regions, and on that basis civil authorities gradually asserted their power to decree a "divorce a vinculo matrimonii", or "divorce from all the bonds of marriage". Since no precedents existed defining the circumstances under which marriage could be dissolved, civil courts heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and now considered divorce to be contrary to public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred vow to the "innocent spouse". If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage". Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment, adultery, or "extreme cruelty".
In the Edo Period (1603–1868), only husbands could divorce their wives by writing letters of divorce. But actually, their relatives or marriage arrangers often kept these letters and tried to restore the marriages. It was not allowed for wives to divorce their husbands. Some wives were able to gain sanctuary in certain Shinto "divorce temples" for several years, and were able to obtain a divorce thereby. In 19th century Japan, at least one in eight marriages ended in divorce.
There are four types of divorce in Japan: Divorce by agreement in which the divorce is mutual, divorce by mediation which happens in family court, divorce by decision of family court that takes place when a couple cannot complete a divorce through mediation, and divorce by judgment of district court.
On an all-India level, the Special Marriage Act was passed in 1954, and the Hindu Marriage Act, in 1955 which legally permitted divorce to Hindus and other communities who chose to marry under these acts. Divorce can be sought by husband or wife on certain grounds, including: adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, and leprosy. Divorce is also legal based on mutual consent of both the spouses, which can be filed after at least one year of separated living. Mutual consent divorce can not be appealed against, and the law mandates a minimum period of six months (from the time divorce is applied for) for divorce to be granted.
Official figures of divorce rates are not available, but it has been estimated that 1 of 100 or another figure 11 of 1,000 marriages in India end up in divorce.
Various communities are governed by specific marital legislation, distinct to Hindu Marriage Act, and consequently have their own divorce laws:
- The Parsi Marriage and Divorce Act, 1936
- The Dissolution of Muslim Marriage act, 1939
- The Foreign Marriage Act, 1969
An amendment to the marriage laws to allow divorce based on "irretrievable breakdown of marriage" (as alleged by one of the spouses) is currently under consideration in India. In June 2010, the Union Cabinet of India approved the Marriage Laws (Amendment) Bill 2010, which, if cleared by Parliament, would establish "irretrievable breakdown" as a new ground for divorce.
In Islamic law and marital jurisprudence, divorce is accepted and referred to as talaq. Khula is the right of a woman in Islam to divorce or separate from her husband. The triple talaq is a mechanism for divorce which exists in Sunni sect of Islam while rejected by the Shia sect. Talaq (conflict) deals with the relationship between religious and secular systems for terminating the marriage in the conflict of laws.
According to Yossef Rapoport, in the 15th century, the rate of divorce was higher than it is today in the modern Middle East, which now has generally low rates of divorce. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.
Causes of divorce
An annual study in the UK by management consultants Grant Thornton, estimates the main proximal causes of divorce based on surveys of matrimonial lawyers.
The main causes in 2004 were:
- Adultery; Extramarital sex; Infidelity - 27%
- Domestic violence - 17%
- Midlife crisis - 13%
- Addictions, e.g. alcoholism and gambling - 6%
- Workaholism - 6%
According to this survey, husbands engaged in extramarital affairs in 75% of cases; wives in 25%. In cases of family strain, wives' families were the primary source of strain in 78%, compared to 22% of husbands' families. Emotional and physical abuse were more evenly split, with wives affected in 60% and husbands in 40% of cases. In 70% of workaholism-related divorces it was husbands who were the cause, and in 30%, wives. The 2004 survey found that 93% of divorce cases were petitioned by wives, 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.
The age at which a person gets married is also believed to influence the likelihood of divorce; delaying marriage may provide more opportunity or experience in choosing a compatible partner.
Religion and divorce
In some countries (commonly in Europe and North America), the government defines and administers marriages and divorces. While ceremonies may be performed by religious officials on behalf of the state, a civil marriage and thus civil divorce (without the involvement of a religion) is also possible. Due to differing standards and procedures, a couple can be legally unmarried, married, or divorced by the state's definition, but have a different status as defined by a religious order. Other countries use religious law to administer marriages and divorces, eliminating this distinction. In these cases, religious officials are generally responsible for interpretation and implementation.
Islam allows divorce, and it can be initiated by either the husband or the wife. However, the initiations are subject to certain conditions and waiting periods, which are meant to force the initiating party to reconsider. Dharmic religions do not allow divorce. Christian views of divorce vary, with Catholic teaching allowing only annulment, but most other denominations discouraging but allowing divorce. Jewish views of divorce differ, with Reform Judaism considering civil divorces adequate. Conservative and Orthodox Judaism require that the husband grant his wife a divorce in the form of a get.
Several countries use sharia (Islamic law) to administrate marriages and divorces. Marriage in Israel is administered separately by each religious community (Jews, Christians, Muslims, and Druze), and there is no provision for interfaith marriages other than marrying in another country. For Jews, marriage and divorce are administered by Orthodox rabbis. Partners can file for divorce either in rabbinical court or Israeli civil court to have the household divided.
Gender and divorce
According to a study published in the American Law and Economics Review, women currently file slightly more than two-thirds of divorce cases in the United States. 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. Evidence is given that among college-educated couples, the percentages of divorces initiated by women is approximately 90%.
A study has found that White female-Black male and White female-Asian male marriages are more prone to divorce than White-White pairings. Conversely, unions between White males and non-White females (and between Hispanics and non-Hispanic persons) have similar or lower risks of divorce than White-White marriages.
Regarding divorce settlements, according to the 2004 Grant Thornton survey in the UK, 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 report concluded that the percentage of shared residence orders would need to increase in order for more equitable financial divisions to become the norm.
Some jurisdictions give unequal rights to men and women when filing for divorce.
For couples to Conservative or Orthodox Jewish law (which by Israeli civil law includes all Jews in Israel), the husband must grant his wife a divorce through a document called a get. If the man refuses, the woman can appeal to a court or the community to pressure the husband. A woman whose husband refuses to grant the get or who is missing is called an agunah, is still married, and therefore cannot remarry. Under Orthodox law, children of an extramarital affair involving a married Jewish woman are considered mamzerim (illegitimate) and cannot marry non-mamzerim.
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