Divorce

From Max-EuP 2012

by Dieter Martiny

1. Notion and admissibility of divorce

Divorce is one kind of dissolution of marriage; the marriage is dissolved ex nunc. canon law allowed only a marriage annulment and what literally translates to a ‘separation of table and bed’ (separatio a mensa et toro), ie a decision that does not dissolve the marital bond but ends cohabitation as husband and wife. On the other hand, the protestant conception of marriage authorized a divorce on the grounds of fault. Until recently, despite a temporary relaxation of marriage dissolution laws under the influence of natural law (eg Allgemeines Landrecht für die Preußischen Staaten (ALR)), a restrictive attitude with respect to divorce shaped the legislation of many countries. Divorce, in the Italian Divorce Law of 1970, is still referred to as scioglimento del matrimonio (dissolution of marriage) and not as divorzio. However, since Ireland began allowing divorce in 1997, the admissibility of divorce has now become the rule. Today, divorce is possible in all EU Member States except Malta. After a non-binding referendum in May 2011, it is now up to the Maltese parliament to enact a law legalizing the dissolution of marriage.

As a preliminary stage to obtaining a divorce, but also as an alternative, a number of legal systems allow for a legal separation (eg France, Italy, Netherlands and Poland). While such a separation does not sever the bond of marriage, it creates a right to live separately and has consequences in matrimonial property law. In England, judicial separation exists in addition to divorce (s 17 ff Matrimonial Causes Act of 1973 (MCA)).

Society as a whole is presently witnessing a rise in divorce rates, with the increase probably only being held in check by the growing competition marriage faces from cohabitation. The trend in favour of divorce has occurred alongside its facilitation in legislation. In the law of divorce, the focus is now often placed on the consequences of divorce, eg compensating marriage-related detriments and safeguarding the best interests of children affected by a divorce, rather than on the prerequisites to divorce as such. The efforts of reducing the emotional impact of a divorce coincide, on the one hand, with the facilitation of divorce proceedings, and, on the other hand, with an increasing use of mediation.

Despite the fact that uniform law does not exist in the area of divorce, there is a European trend toward its facilitation. Whereas European family law still does not contain uniform rules on conflicts of laws in matrimonial matters for all Member States, international civil procedure for divorce, legal separation and marriage annulment has already been laid down in the Brussels IIbis Regulation. After an unsuccessful attempt to introduce uniform rules on conflict of laws for divorce, fourteen Member States used the procedure of enhanced cooperation and introduced the Council Regulation of December 2010 in the area of the law applicable to divorce and legal separation. There is also a Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes of March 2011 which regulates the consequences of divorce as well.

Additionally, the Commission on European Family Law (CEFL) developed the Principles of European Family Law Regarding Divorce and Maintenance between Former Spouses (2004) (Principles of European Family Law) (maintenance). While striving to reflect recent tendencies, the Principles also propose original solutions.

2. Kinds of divorce

Divorces can be classified according to the kind of dissolution of marriage and the grounds for divorce. Divorce results generally from a judgment or decree in the framework of proceedings in a family court. According to the CEFL Principles (Principles of European Family Law), a divorce is to be granted by a competent authority which is either a judicial or an administrative body (civil status registration). A divorce put into effect only through the consensual agreement of the spouses or through a unilateral act (talaq under Islamic law, get under Jewish law) is not recognized by European legal systems. In some cases, however, a divorce through the mutual consent of childless couples is possible as long as it is based solely on an administrative registration (Portugal, Russia).

Some legal systems also permit divorce by mutual consent to be ascertained by the court. The most common categories of divorce are divorce on the grounds of an irretrievable breakdown of marriage and divorce on the grounds of fault. In some countries, more than one kind of divorce is prescribed (eg France and Austria). The CEFL Principles similarly provide for multiple forms of divorce, namely a divorce by mutual consent and a divorce without consent of one of the spouses (Principle 1:3).

3. Divorce by mutual consent

A divorce by mutual consent, where—apart from the consent of the spouses—no other reason has to be given, is permitted in some legal systems (eg Austria and France). In Germany, a consensual divorce is not permitted, but, if there is consent of the spouses, the process is facilitated and an irretrievable breakdown of the marriage is irrefutably presumed.

The CEFL Principles permit divorce upon the basis of the spouses’ mutual consent. No period of factual separation is required. Mutual consent is understood as an agreement between the spouses that their marriage should be dissolved. This agreement may be expressed either by a joint application of the spouses or by an application by one spouse with the acceptance of the other (Principle 1:4). This provision reflects the growing tendency to respect an agreement of the spouses even though national legal systems may still by their terms only view an agreement of the spouses as evidence of irretrievable breakdown. Pursuant to the CEFL, a certain impediment—inspired by Finnish and Swedish law—is formed by the required observance of a reflection period. If at the institution of divorce proceedings, the spouses have children under 16 years of age and have agreed upon all consequences to divorce (parental responsibility; maintenance; division of property (matrimonial property law)), there is a three-month reflection period that must be observed before the divorce can be obtained. If they have not agreed upon all the consequences, then a six-month period is required (Principle 1:5).

If at the commencement of the divorce proceedings the spouses have no children under the age of 16 and they have agreed upon property division and maintenance after divorce, no period of reflection is required. If they have not agreed upon all the consequences, then a three-month period of reflection must be observed. However, no period of reflection is required if at the commencement of the divorce proceedings the spouses have been factually separated for six months (Principle 1:5).

Regarding the consequences of divorce, the CEFL Principles allow for agreements between the spouses. Such arrangements may regulate the division or reallocation of property, post-divorce maintenance and, where necessary, child support and parental responsibility, including the residence of and the contact arrangements for children. These agreements must be made in writing (Principle 1:6).

Moreover, the Principles provide for a decision of an administrative agency or a court on the consequences. The competent authority decides on parental responsibility and child support. However, any admissible agreement of the spouses is to be taken into account to the extent that it is consistent with the best interests of the child. With regard to arrangements relating to the division or reallocation of property and spousal maintenance, the competent authority shall at a minimum scrutinize the validity of the agreement.

If the spouses have not come to an agreement or have only reached a partial agreement on the division or reallocation of property and post-divorce maintenance, the competent authority may determine these consequences (Principle 1:7). The Principles also strive to create the possibility of a consensual divorce where the spouses cannot agree or can only partially agree on the consequences of divorce.

4. Divorce without the consent of the other spouse

A divorce per the request of only one spouse is still problematic. National legal systems often permit a divorce based on a breakdown of the marriage—in England, irretrievable breakdown (s 1 MCA). Such a breakdown is inferred particularly from certain periods of separation. Germany generally requires a separation of one year. A divorce after a shorter separation is only possible in the case of an unreasonable hardship (§ 1565(2) Bürgerliches Gesetzbuch (BGB)). Nevertheless, after a separation period of three years, there is an irrefutable presumption that the marriage has broken down (§ 1566(2) BGB). Some legal systems require three years of separation for certain kinds of divorces (eg § 55 Austrian Ehegesetz for divorce due to a termination of the common household) whereas in other jurisdictions such a relatively long period of separation is generally required, eg three years in Italy and four years in Ireland. Finland and Sweden demand no period of separation for a divorce without consent, a unilateral wish to divorce being sufficient. They do, however, require a six-month reflection period to be observed during the divorce proceedings after which time the divorce may be granted. After the reform of 2005, Spain does not require any ground for divorce. The only requirement is generally a minimum of three months having elapsed from the celebration of the marriage until the application for divorce.

The CEFL Principles also regulate a divorce without the consent of the other spouse. They do not, however, expressly require a breakdown of the marriage. Instead, the decisive criterion is solely factual separation. A divorce is permitted without consent of one of the spouses if they have been factually separated for one year (Principle 1:8). This considerably facilitates a divorce in comparison to the existing periods of separation required by most national legal systems. This solution is a logical consequence of the various national systems having, in practice, already ceased to require much if any proof of a real breakdown.

The CEFL Principles also lay down rules—in accordance with the majority of European legal systems—facilitating divorce upon a showing of exceptional hardship. In cases where the petitioner demonstrates exceptional hardship, the competent authority may grant a divorce where the spouses were not factually separated for one year (Principle 1:9).

European legal systems also accept in principle that it would be grossly unfair to grant a divorce in certain cases. Therefore, in some statutes there is a hardship clause which excludes divorce despite the breakdown of the marriage (eg § 1568 BGB). As a whole there is a tendency to restrict the use of such hardship clauses. The CEFL Principles have not adopted such a clause.

5. Divorce on the grounds of fault

One of the main grounds for divorce in the past, divorce on the grounds of fault—awarded after the marital misconduct of one or both spouses—is still recognized in some legal systems as one of several kinds of divorce (eg in France, Art 242 Code civil; in Austria, § 49 Ehegesetz). It has, however, increasingly been abolished and no longer exists in many legal systems. Moreover, there is no fault-based divorce in the CEFL Principles.

6. Consequences of a divorce

The legal consequences of a divorce are increasingly independent of the kind of divorce and the ascertainment of fault in the breakdown of the marriage. One of the particular consequences of divorce is the dissolution of matrimonial property, which is linked to the respective matrimonial property regime. If, as in France and Italy, a community of property is the legal matrimonial property regime, a division of property with compensation, if necessary, will ensue. The typical deferred community of property in the Nordic countries also leads to compensation. Other legal systems have as their starting point a separation of property during marriage with a later equalization of accrued gains (see the German and the Greek community of accrued gains (Zugewinngemeinschaft) and the Swiss participation in acquisitions (Errungenschaftsbeteiligung)). Though in English law there are no matrimonial property claims as such, a judicial distribution of marital assets can take place (s 21 MCA). The majority of legal systems, however, distinguish between a division of property and the granting of maintenance after divorce. In some instances, special rules in relation to a family home may represent a further and related consequence of divorce.

In some countries, a separate equalization of pension rights and expectancies acquired by the spouses during the marriage takes place at the time of divorce (Germany, the Netherlands, Switzerland). Other legal systems include pension rights in a compensation scheme for matrimonial property (eg France) or permit pension sharing orders (s 21A MCA).

A divorce also has consequences for the children of the marriage. Arrangements for parental responsibility (particularly custody and contact) and child maintenance are necessary. In this regard, attempts have been made to include the consequences of a divorce as much as possible in the divorce proceedings and to reach, at this stage, reliable solutions for the future.

The CEFL Principles also aim to ensure that clear decisions are reached in respect of the welfare of children affected by a divorce. As far as necessary, the competent authority shall decide on parental responsibility, including residence and contact arrangements for the children. Moreover, arrangements for child support are to be made in accordance with national legal systems. Where agreements of the parents are admissible, they shall be taken into account but only to the extent that they are consistent with the best interests of the child (Principle 1:10(1)).

On or after granting the divorce, the competent authority may also determine the economic consequences for the spouses. The authority takes into account any admissible agreement made between the spouses (Principle 1:10(2)). The court’s role is, therefore, not restricted to taking notice of the agreement, but also encompasses, to some extent, the task of supervising its content. In other respects, the Principles do not tackle in detail the manifold problems of the admissibility and fairness of agreements reached by the spouses.

Literature

Alexander Bergman, Murad Ferid and Dieter Henrich (eds), Internationales Ehe- und Kindschaftsrecht mit Staatsangehörigkeitsrecht, 20 vols (looseleaf); Anders Agell, Nordisk äktenskapsrätt: en jämförande studie av dansk, finsk, isländsk, norsk och svensk rätt med diskussion av reformbehov och harmoniseringsmöjligheter, Nordiska Ministerrådet (2003); Sibylle Hofer, Dieter Schwab and Dieter Henrich (eds), Scheidung und nachehelicher Unterhalt im europäischen Vergleich (2003); Katharina Boele-Woelki and others, Principles of European Family Law Regarding Divorce and Maintenance Between Former Spouses (2004); Masha Antokolskaia, ‘Convergence and Divergence of Divorce Laws in Europe’ (2006) 18 Child and Family Law Quarterly 307; Katharina Boele-Woelki and Dieter Martiny, ‘Prinzipien zum Europäischen Familienrecht betreffend Ehescheidung und nachehelicher Unterhalt’ (2006) 14 ZEuP 6; Rembert Süß and Gerhard Ring (eds), Eherecht in Europa (2006); Ole Lando, ‘Trends Towards Convergence of Marriage and Divorce Law’ in Paul Demaret, Inge Govaere and Dominik Hanf (eds), European Legal Dynamics (2007) 266; Bea Verschraegen, ‘Moving to the Same Destination? Recent Trends in the Law of Divorce’ in Masha Antokolskaia (ed), Convergence and Divergence of Family Law in Europe (2007) 159; Jordi Ribot, ‘The financial consequences of divorce across Europe’ (2011) 12 no 1 ERA Forum 71.

Retrieved from Divorce – Max-EuP 2012 on 22 May 2022.

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