Committee Reports > List of Committees > Joint > 1985 > Committee on Marriage Breakdown > Report - Marriage Breakdown

Appendix E

Divorce laws in other Jurisdictions

This appendix contains a summary of the types of divorce legislation which exists in the following Jurisdictions:

1. Australia

2. California

3. Colorado

4. England & Wales

5. Germany

6. Italy

7. New York

8. New Zealand

9. Northern Ireland

10. Spain

11. Sweden

Divorce laws in other jurisdictions

Australia

The principal statute is the Family Law Act 1975.

Divorce is granted if the marriage has broken down irretrievably. This is established by 12 months separation.

The court shall not make a decree if satisfied that there is a reasonable likelihood of cohabitation being resumed.

Where the parties have been married less than two years the court shall not hear the proceedings unless satisfied that the parties have considered reconciliation with the aid of a marriage counsellor.

Where there are minor children a decree nisi will not become absolute unless the court is satisfied that proper arrangements have been made for their welfare.

Special Family Courts were set up by the principal Statute. There are provisions to reduce formalities and humanise proceedings as far as is compatible with the inherently judicial and in the last analysis adversarial nature of the proceedings. Provisions include closed courts, no undue formality (including the abolition of robes and wigs) or protracted proceedings. There are also provisions setting up a court-based reconciliation and conciliation service. Officers who are defined as both marriage counsellors and welfare officers are attached to the court. There is also provision for a pre-trial mediation conference before a registrar.

California

The principal statute is the Act of January 1, 1970, Public Law No. 1608.

The only grounds for divorce are irreconcilable differences leading to irremedial breakdown of marriage and incurable insanity. Irreconcilable differences are those grounds which are determined by the courts to be substantial reasons for not continuing marriage and which make it appear marriage should be dissolved.

There is a court-linked counselling and mediation service.

A summary dissolution procedure is available where both parties consent, there are no children, they are married less than five years, do not have debts of more than a certain amount, do not have community or separate property of more than a certain amount, have waived any rights to spousal support and have executed an agreement concerning their rights and liabilities.

Colorado

The principal statute is the Act of June 2 1971, Public Law No. 130, as amended. This is a somewhat modified adoption of the Uniform Marriage and Divorce Act (1970-1973).

The sole ground is the irretrievable breakdown of the marriage. This is established either

(a)By the parties living separate and apart for at least 180 days

(b)By establishing that there is serious marital discord adversely affecting the attitude of one or both of the parties towards the marriage and there is no reasonable prospect of reconciliation.

Where the respondent denies that the marriage is irretrievably broken the court may adjourn the matter for further hearing. This adjournment to be at least thirty and no more than sixty days. Furthermore the court may, or if so requested by one of the parties must, order a conciliation conference.

The court may bifurcate the issues, rendering an interlocutory judgement of dissolution of marriage, whilst expressly reserving jurisdiction as to all ancillary issues.

A marriage may be dissolved summarily, by affidavit, where:

There are no minor children and the wife is not pregnant or where the spouses, both with legal advice, have entered into a separation agreement setting out the amount of child support and granting custody to one or both parties. Furthermore there must be no material fact in issue and there must be either a division of property by agreement or no property to be divided.

England and Wales

The principal statute is the Matrimonial Causes Act, 1973, as amended.

The sole ground on which a petition for divorce may be based is that the marriage has broken down irretrievably. To establish this the petitioner must satisfy one or more of the following facts:

(a)That the respondent has committed adultery and that the petitioner finds it intolerable to live with them. The use of this fact is barred however if the petitioner, after learning of the respondents adultery, lives with them for an aggregate period exceeding six months.

(b)That one respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them.

(c)That the respondent has deserted the petitioner for a continuous period of at least two years. The use of this fact is barred by condonation.

(d)That the parties have been separated for at least two years and that the respondent consents to the grant of a decree.

(e)That the parties have been separated for at least five years. If however the respondent opposes the petition on the basis that it would cause them grave financial or other hardship, the court, if it accepts this, may dismiss the petition.

There is an absolute bar on divorce for one year after marriage.

Where there are minor children the court will not, in the absence of special circumstances, make absolute a decree of divorce unless satisfied that arrangements for their welfare are satisfactory or the best that can be devised.

The court may adjourn divorce proceedings for such period as it thinks fit if it believes there to be a reasonable possibility of reconciliation, to enable attempts to be made to effect such. Furthermore the petitioner’s solicitor must supply the court with a certificate certifying that he has mentioned the possibility of reconciliation to the petitioner.

Divorce is dealt with by the Family Division of the High Court and by such County Councils as are designated Divorce County Courts. If the petition is undefended there is a procedure called the Special Procedures List. The petitioner lodges an affidavit to the Registrar of the divorce Registry. If this proves that the contents are to the Registrar’s satisfaction he will so certify. Where there are minor children the Registrar must arrange an appointment with a judge in the chambers who will consider the arrangements for the children. All other ancillary matters being settled, this will lead to the court granting the decree without a hearing.

Decrees will be nisi, in the first instance. They will usually be made absolute in six weeks.

Germany

The principal statute is the Law of Marriage of 14 June 1976.

Breakdown of marriage is the only ground for divorce. This is taken to have occurred if the spouses are no longer on living terms and it is not to be expected that they can re-establish the society that they have lost.

There is an irrebuttable presumption that the marriage has broken down if the spouses have lived apart

(a)For one year, where both consent to divorce

(b)For three years, otherwise.

Spouses who have lived apart for less than one year can only be divorced if it would be an unbearable hardship on the complainant, in view of some personal characteristic of the respondent, to have the marriage continue.

Even where the marriage has broken down a divorce will not be granted if

(a)The divorce would be a severe hardship to the respondent by virtue of some unusual circumstances.

(b)If, for some special reason, the marriage must be kept afloat in the interests of the children.

Neither of the above apply when the parties have lived apart for more than five years.

The Law of 1976 set up a system of family courts with jurisdiction over all family and matrimonial issues.

Italy

The principal statutes are the Laws of December 1, 1970 and September 25, 1975.

Divorce may be granted where:

(1)The respondent is convicted of certain offences or sentenced to certain periods of imprisonment or acquitted of certain offences on the grounds of total unsoundness of mind or other specified reasons.

(2)There is non-consummation of the marriage.

(3)The respondent being a foreign national has obtained an annulment or dissolution abroad, and has subsequently remarried.

(4)Where there has been a judicial separation or a consensual separation ratified by the court. The petition for divorce may be made after five years if there is mutual consent, six years if the respondent objects but the initial separation was by consent, or seven years where the respondent objects and the initial separation was on foot of a judicial separation caused by a fault of the petitioner.

The court may refuse to ratify a separation agreement if not satisfied with the arrangements made for childrens material or moral welfare. This obliges the parties to come up with an arrangement which will satisfy the court.

The court must attempt to achieve a reconciliation of the parties. They will be heard first separately and then together. If the court forms the opinion that there is a possibility of reconciliation it can delay the trial for up to a year; if the reconciliation is refused however the court must, finally, accept this.

New York

The principal statute is the Domestic Relations Law.

The following can be grounds for divorce:

(a)Cruel and inhuman treatment such that the respondent’s conduct so endangers the petitioner’s physical and mental well-being as to render cohabitation unsafe or improper.

(b)Abandonment by one respondent for one year.

(c)Imprisonment, after marriage, of the respondent for three consecutive years.

(d)Adultery or sexually deviate intercourse by the respondent. Adultery is barred however where there is procurement or connivance by the petitioner, or the petitioner affirmatively forgives the adultery, or cohabits voluntarily with the respondent knowing of the adultery, or the action is not commenced within five years of the adultery, or where the petitioner is guilty of adultery in circumstances such that the respondent would have been entitled, if innocent, to divorce.

There are provisions for conciliation proceedings by reference to the Family Court.

Default judgements can be entered in uncontested divorces without any court appearance.

New Zealand

The principal statute is the Family Proceedings Act 1980.

Marriages may be dissolved if the marriage has broken down irreconcilably.

The unique fact which establishes this is two years separation.

The court may adjourn dissolution proceedings and refer the spouses to a counsellor for the purposes of reconciliation or conciliation, where it is of the opinion that there is a reasonable possibility of such. Furthermore the petitioner’s legal advisers must certify that they have made their clients aware of the facilities available for promoting reconciliation and conciliation and that they have taken any further steps such as might assist in the promotion thereof. To this end the parties may request the Registrar of the Family Court to arrange for such counselling.

Where there are minor children the court will postpone final dissolution until it is satisfied with the arrangements made for their welfare.

The Family Courts Act 1980 set up a system of Family Courts. Special features of these courts include:

The fact that the court may receive any evidence it thinks fit, whether otherwise admissible in a court of law or not. The court may call as a witness any person whose evidence they believe may be of assistance to the court.

In undefended, including joint, proceedings the order dissolving the marriage takes effect on being made. In defended proceedings it automatically takes effect after a month, in the absence of an appeal to the High Court.

There is also provision for a mediation conference before a judge prior to the trial.

Northern Ireland

The principal statute is the Matrimonial Causes (N.I.) Order 1978. This is based on and substantially similar to the English Matrimonial Causes Act 1973.

Note however:—

(1)That there is no absolute bar in the first year of marriage. There is instead a three year bar on bringing a petition in the absence of exceptional hardship suffered by the petitioner or exceptional depravity on the part of the respondent.

(2)There is no need for the petitioner’s solicitor to certify that he has mentioned the possibility of reconciliation to the petitioner.

(3)The Special Procedures List does not exist as in England and Wales.

Spain

Divorce was introduced by Law No. 30/1981 of July 7, 1981.

Marriage may be dissolved where:

(1)There has been one year’s separation from the date of bringing a petition for judicial separation jointly or by consent.

(2)One year’s separation from the bringing of a petition (or counterpetition) for judicial separation. The grounds for judicial separation include

(a)Desertion, adultery (not if spouses separated by mutual consent or by the act of spouse alleging adultery), injurious or vexatious conduct and any other serious or repeated breach of matrimonial duties.

(b)Any serious or repeated breach of duties towards children of the marriage or those of either spouse living in the family home.

(c)Conviction followed by imprisonment exceeding six years.

(d)Alcoholism, use of narcotics or mental derangement whenever the interest of the other spouse or of the family demands the suspension of cohabitation.

(e)There are also several distinct separation grounds.

(3)Two years separation since:

(a)The freely agreed actual separation of the spouses.

(b)One of the spouses has been declared missing, on the petition of the other spouse.

(c)The actual separation of the spouses when the petitioner alleges that the other spouse had given him cause sufficient for judicial separation.

(4)Five years separation on the petition of either spouse.

(5)Conviction for an attempt on the life of the petitioner, his ancestors or descendants.

Sweden

The principal statute is the Law of June 5, 1973.

The unique ground for divorce is that one or both of the spouses has no wish to continue the marriage. The court has no discretion.

Where there are minor children or where one of the spouses opposes the divorce there must be a six month reflection and reconsideration period before divorce can be decreed. This is not necessary however, where the parties have lived apart for at least two years.

There is a statutory counselling service and this will be adverted to but mediation is now voluntary.