European laws on divorce

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)

o Cruelty has been made irrelevant. See Gollins v Gollins [1964] A.C. 644

• Family Law Act 1996.

• Children Act 1989.
• The Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991.
• Marriage Act 1949.
• Marriage Act of 1994.

::France
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%).

::Italy

Presumably due to the strong influence of the Roman Catholic Church, divorce was all but unobtainable in the Italian Republic and its predecessor states. The difficulty of ridding oneself of an unwanted spouse was a frequent topic of drama and humor, reaching its apotheosis in the 1961 film Divorce, Italian Style. On December 1, 1970, the civil code of Italy was amended to permit the granting of divorces by the civil courts. Subsequent efforts at repealing the divorce statute by referendum have so far been unsuccessful.

::Republic of Ireland

The largely Catholic population of the Republic of Ireland has tended to be averse to divorce. Divorce was prohibited by the 1937 Constitution. In 1986, the electorate rejected the possibility of allowing divorce in a referendum. Subsequent to a 1995 referendum, the Fifteenth Amendment repealed the prohibition of divorce, despite Church opposition. The new regulations came into effect in 1997, making divorce possible under certain circumstances. In comparison to many other countries, it is difficult to obtain a divorce in the Republic of Ireland.

A couple must be separated for at least four of the preceding five years before they can obtain a divorce. It is sometimes possible to be considered separated while living under the same roof.
Divorces obtained outside Ireland are recognised by the Republic only if the couple was living in that country; it is not therefore possible for a couple to travel abroad in order to obtain a divorce.

::Scotland

About one third of marriages in Scotland end in divorce, on average after about thirteen years. 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. Divorce

(Scotland) Act 1976.

It is likely that the two year separation period required for a no-fault divorce with consent will be reduced to one year. See now the changes introduced under the auspices of the Scottish Parliament through the Family Law (Scotland) Act 2006. 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.