Comparative divorce systems in Europe
Eropean law school frist year, private law (family law)
1. England
1.1. Fault-based vs. non-fault-based
1.1.1. Non-fault-based: fully transitioned to a non-fault-based regime with the divorce, Dissolution and Separation Act 2020.
1.2. Grounds of divorce
1.2.1. irretrievable breakdown of marriage: sole ground of divorce.
1.2.2. Fault is no longer required.
1.3. Substantive requirements
1.3.1. Cooling-off period: minimum 20-week waiting period from application to conditional order.
1.3.2. No evidence of fault needed: statement of irretrievable breakdown suffices.
2. Netherlands
2.1. Fault-based vs. non-fault-based
2.1.1. Non-fault-based: predominantly non-fault-based
2.1.2. Fault is irrelevant for granting a divorce
2.2. Grounds of divorce
2.2.1. Irretrievable breakdown of marriage: primary ground for divorce
2.2.2. Both spouses or one spouse may file
2.3. substantive requirements
2.3.1. Evidence of breakdown: cohabitation not required during proceedings, but spouses must demonstrate that reconciliation is impossible.
2.3.2. Cooling-off period: none explicitly required.
3. France
3.1. Fault-based vs. non-fault-based
3.1.1. Mixed system: fault-based and non-fault-based options.
3.1.2. fault divorce available but increasingly rare.
3.2. Grounds for divorce
3.2.1. Mutual consent: simplest and quickest procedure.
3.2.2. Fault divorce: requires proof of serious misconduct
3.2.3. Separation: Living apart for 2+ years can also serve as grounds.
3.3. Substantive requirements
3.3.1. Mutual consent divorce: requires written agreement between spouses.
3.3.2. Fault divorce: substantive proof of misconduct required.
3.3.3. Judicial oversight: courts ensure fairness in division of assets and children's welfare.
4. Germany
4.1. Fault-based vs. non-fault-based
4.1.1. Non-fault-based: Fault plays no role in the legal basis for divorce
4.2. Grounds of divorce
4.2.1. Irretrievable breakdown of marriage: usually presumed after one year of sepraration.
4.2.2. Separation periods:
4.2.2.1. One year for consensual divorce.
4.2.2.2. Three years if contested by one spouse.
4.3. Substantive requirements
4.3.1. Separation requirements: proof of separate living arrangements during the stipulated time.
4.3.2. No fault assessment: courts do not evaluate marital misconduct.