European Family Law Divorce and separation Friday, 23^rd November 2007 Dr. Ian Curry-Sumner, Universiteit Utrecht US Divorce Quotes Structure of the lecture l Divorce in England and Wales l Divorce in The Netherlands l Divorce in Europe l CEFL Comparative Research l CEFL Principles History of English Divorce Law l <1857 – Private Act of Parliament l 1857 – Matrimonial Causes Act l 1923/37 – Grounds for divorce widened l 1969 – Divorce Reform Act l 1973 – Matrimonial Causes Act l 1990 – Grounds for Divorce Report l 1996 – Family Law Act 1996 Grounds for Divorce in England Number of Divorces in 2000 The Netherlands l Art. 1:150, Dutch Civil Code l Either sole or joint petition l Article 1:151, Dutch Civil Code l Sole petition l Ground: irretrievable breakdown of the marriage l Article 1:154, Dutch Civil Code l Joint petition l Ground: irretrievable breakdown of the marriage Number of Divorces up to 2001 ECHR l Article 8: Private and family life? l Article 12: Right to marry Does these articles include a right to divorce? Johnston v. Ireland (1986)‏ The European Picture l CEFL l Comparative Research l CEFL Principles Different grounds for divorce - 1 l fault-based divorce (divorce-sanction): the state is a guardian of universal morality, and has to punish the spouse who has committed a matrimonial offence l divorce upon irretrievable breakdown of marriage (divorce-remedy): the state has to protect the stability of marriage for the sake of society; and to protect the spouses from their own ill-considered decisions l divorce by mutual consent (divorce as an autonomous decision by the spouses): nobody is in a better position to decide on the dissolution of the marriage than the spouses themselves l divorce on demand (divorce as a right): a marriage should and cannot be kept intact if even one of the spouses wishes to terminate it Different grounds for divorce - 2 What is irretrievable breakdown of the marriage? l Fault-based divorce: upon proof of a matrimonial offence (England and Wales)‏ l Irretrievable breakdown in the narrow sense: upon proof of breakdown of a marriage (Hungary)‏ l Divorce on the ground of separation for a stated period of time without enquiry (Denmark)‏ l Divorce by consent: upon the agreement of the spouses without inquiry (The Netherlands)‏ Divorce on demand: upon the unilateral request of each spouse (Russia)‏ Proof of the irretrievable breakdown of the marriage l Enquiry which convinces the court that the marriage cannot be saved (Bulgaria, Czech Republic, The Netherlands, Poland, Hungary etc.)‏ l Enquiry and a certain period of separation (four years in Ireland, three years in Austria, two years in Belgium etc.) Do differences in divorce law diminish over time? Requirements for the divorce by consent l Certain duration of the marriage (three years in Bulgaria, two years in Belgium, one year in the Czech Republic and Greece, six months in France)‏ l Certain period of separation (two years in England and Wales and in Scotland, one year in Germany and six months in Denmark, the Czech Republic and Iceland)‏ l Agreement on ancillary matters (Austria, Belgium, Bulgaria, France (only for divorce by joint application), Greece, Germany, Hungary, Denmark, Portugal) CEFL Principles l Principle 1:1 – Permission of divorce l The law should permit divorce l No duration of the marriage should be required l Principle 1:2 – Procedure by law l The divorce procedure should be determined by the law l Divorce should be granted by a competent authority which can either be a judicial or administrative body l Principle 1:3 – Types of divorce l The law should permit both divorce by mutual consent and divorce without the consent of one of the parties. CEFL Principles l Principle 1:4 – Mutual consent l Divorce should be permitted upon the basis of the spouses’ mutual consent. No period of factual separation should be required. l Mutual consent is to be understood as an agreement between the spouses that their marriage should be dissolved. l 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 spouses. European Divorce Jurisdiction l Brussels IIbis (Regulation 2201/2003)‏ l Rules on jurisdiction (Article 3)‏ l Both parties citizens, or l Habitual residence of the defendant; or l Habitual residence of the claimant and: § If last marital HR there, or § If lived there 1 year prior to petition, or § If lived there 6 months prior to petition and national. l No choice! European Divorce Recognition l Brussels IIbis (Regulation 2201/2003)‏ l Rules on recognition (Article 21)‏ l Recognition without any procedure l Very limited refusal grounds (Article 22)‏ § Public policy § Untimely summons and other Article 6, ECHR protection § Incompatibility with previous decision § No jurisdictional test