Category: Divorce Laws

Category: Divorce Laws

UK Divorce laws overhaul will ‘end blame game’ for couples

Existing UK divorce laws mean spouses have to provide evidence for a divorce if one partner does not agree to it.

For the first time in 50 years, UK divorce laws are being overhauled in an attempt to end the “blame game” for couples trying to end their marriage.

Current laws in England and Wales dictate that unless someone can prove there was adultery, unreasonable behaviour or desertion, the only way to get divorced without a spouse’s agreement is to live apart (be separated) for five years.

The new laws state that one side will now only have to submit a “statement of irretrievable breakdown” to say the marriage has broken down; instead of having to provide evidence about length of separation or their spouse’s behaviour. In addition to this,the ability of one partner to contest a divorce will also be scrapped.

The existing two-stage process of a decree nisi, a document which says the court cannot see any reason why you cannot divorce, followed by a decree absolute, the legal document which ends a marriage, will remain the same; however, a six month minimum period will be introduced between the lodging of a petition to the divorce being made absolute.

Couples will also be able to make joint divorce applications, alongside the current option for one partner to start the process.

Similar changes will also be made to the law governing the dissolution of civil partnerships.

The overhaul follows a government consultation last year, when details of the proposals were first unveiled.

The Ministry of Justice said the new legislation is expected to be introduced as soon as parliamentary time allows.

Divorce – Dissolution of marriage

Dissolution of marriage (Divorce) is the process of terminating a marriage.

Divorce usually entails the cancelling or reorganising of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world, but in most countries divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property, child custody, alimony (spousal support), child visitation / access, parenting time, child support, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person.

Divorce is different from annulment, which declares the marriage null and void, with legal separation or de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto separation (a process where the spouses informally stop cohabiting). Reasons for divorce vary, from sexual incompatibility or lack of independence for one or both spouses to a personality clash.

The only countries that do not allow divorce are the Philippines, the Vatican City and the British Crown Dependency of Sark. In the Philippines, divorce for non-Muslim Filipinos is not legal unless the husband or wife is an alien and satisfies certain conditions. The Vatican City is an ecclesiastical state, which has no procedure for divorce.

Overview

Grounds for the dissolution of marriage vary widely from country to country. Marriage may be seen as a contract, a status, or a combination of these. Where it is seen as a contract, the refusal or inability of one spouse to perform the obligations stipulated in the contract may constitute a ground for divorce for the other spouse. In contrast, in some countries divorce is purely no fault. Many jurisdictions offer both the option of a no fault divorce as well as an at fault divorce. This is the case, for example, in many US states.

Though divorce laws vary between 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 behavior of the parties when dividing property, debts, evaluating custody, shared care arrangements and support. In some jurisdictions one spouse may be forced to pay the attorney’s fees of another spouse.

Laws vary as to the waiting period before a dissolution of marriage 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.

In Europe, divorce laws differ from country to country, reflecting differing legal and cultural traditions. In some countries, particularly (but not only) in some former communist countries, divorce can be obtained only on one single general ground of “irretrievable breakdown of the marriage” (or a similar formulation). Yet, what constitutes such a “breakdown” of the marriage is interpreted very differently from jurisdiction to jurisdiction, ranging from very liberal interpretations (e.g. Netherlands) to quite restrictive ones (e.g., in Poland, there must be an “irretrievable and complete disintegration of matrimonial life,” but there are many restrictions to granting a divorce). Separation constitutes a ground of divorce in some European countries (in Germany, e.g., a divorce is granted on the basis of a 1-year separation if both spouses consent, or 3-year separation if only one spouse consents). Note that “separation” does not necessarily mean separate residences – in some jurisdictions, living in the same household but leading a separate life (e.g., eating, sleeping, socialising, etc. separately) is sufficient to constitute de facto separation; this is explicitly stated, e.g., in the family laws of Latvia.

Divorce laws are not static; they often change reflecting evolving social norms of societies. In the 21st century, many European countries have made changes to their divorce laws, in particular by reducing the length of the necessary periods of separation.

Divorce in Poland

1. Where do we get a divorce in Poland and how?

Individuals can divorce in Poland by lodging a petition for divorce (dissolution of the marriage) by one of the spouses. Divorce proceedings cannot be initiated either by the public prosecutor or any other person. Spouses can only divorce in the court. Actions shall be brought in a Regional Court. Actions pertaining to marital relations shall be brought exclusively in a court in whose district the spouses had their last place of residence, insofar as one of them still resides or stays there. Otherwise, exclusive jurisdiction shall be vested in the court for the respondent’s place of residence or where there is no such place, with the court for the petitioner’s place of residence.

2. What are the most common reasons that spouses may invoke?

If there has been an irretrievalbe and complete breakdown of matrimonial life between the spouses, divorce may be requested by either of the spouses to the court to order the marriage dissolved by divorce. Both conditions must be met. This complete disintegration will consist of a lack of any spiritual, physical and economic bonds between the spouses. The main reasons causing breakdown of marriage are alcoholism, aggression, violence & marital infidelity.

3. How long does it take to divorce in Poland?

The greater the discrepancies between the parties the longer the process. In the first place the contentious issue may be the fault as to the breakdown of the marriage. If the spouses do not agree to a divorce without adjudging on the guilt, it already heralds a rather lengthy trial, because the court will have to carry out all the evidentiary proceedings in the matter of guilt. Most often this involves the interrogation of a few or a dozen or so witnesses, as well as bringing a number of documents. The second factor that affects the length of the process is the issue of the spouses children. Divorce can end very quickly – even after the first hearing and in the event of an advanced conflict of the spouses – may take up to several years. Thus, you can wait for a long time for a final court decision, but it all depends on the individual circumstances of the particular case.

4. What types of evidence can be used when divorcing?

Evidence proceedings in a divorce case are primarily aimed at determining the circumstances surrounding the breakdown of marriage. The court can allow evidence from witnesses, official documents, private documents, experts opinions, environmental interviews, e-mails, bills and SMS printouts. These are not all acceptable evidence – their catalog is not closed. The possibility of using other proofs is regulated by the Polish Code of Civil Procedure.

5. What other family life aspects are settled once with the divorce?

In the ruling on the divorce, the court rules on joint parental authority over a minor child of both spouses and on parental contact with the child, and decides how much each spouse is obliged to bear on the costs of living and educating a child. The court may also delegate the exercise of parental authority to one of the parents, limiting the parental authority of the second parent to specific rights and duties in relation to the child. The court takes into account the agreement of the spouses on how to exercise parental authority, and maintaining contact with the child after the divorce, if it is compatible with the welfare of the child. Siblings should be brought up together, unless the welfare of the child requires a different outcome. Upon a mutual request of the parties, the court does not adjudicate on keeping contacts with the child.

If the spouses occupy shared accommodation, in the ruling on divorce the court will also rule on the use of the residence for as long as the divorced spouses are sharing accommodation. There is also the possibility that at the motion of one of the spouses, the court may, in the ruling on divorce, divide the joint property, as long as carrying out the division does not cause undue delay to the proceedings.

When the divorce verdict becomes final, a divorced spouse who changed a previous surname as a result of the marriage may submit a statement before the head of the registry office on reverting back to the surname from before the marriage.

6. Is my presence necessary when divorcing?

During the trial, either party could be represented by an attorney at law, however each time in divorce cases the court orders obligatory hearing of the parties, then the presence in court is obligatory.

7. What kind of temporary measures concerning children can be ordered during divorce proceedings?

During a divorce case, the court may grant for injunction by regulating custody of minors and contacts with a child and the secure maintenance claims.

8. How can a parent living abroad keep in touch with his child?

A parent living in another state can keep in touch with his child by visiting him at his place of residence, by having the children over and using electronic means of communication. The issue is not regulated by the law and is left to be regulated by parents.

9. In case a parent lives in another EU State, is that an obstacle for joint custody?

The place of residence of parent is not an obstacle when applying for joint custody.

10. How can a divorce resolution issued in Poland be acknowledged in another EU State?

When divorce is finalised, parties may request the issuance of a European form that can be used in any EU State and is recognized in the other Member States without any special procedure being required.

International divorce and family law issues are very different from purely English family law cases, so it is essential that you seek specialist legal advice.