Continental versus Anglo-Saxon divorce law

Divorce law in England and Wales

The divorce law applicable in England and Wales is worth a particular mention on its own because of its reputation as the most ‘friendly’ to either the woman or the party with fewer assets.

Many wealthy individuals fear getting divorced in England or Wales as not only do they face being stripped of more of their assets; they are more likely to be ordered to pay maintenance for an indefinite period. And unlike in countries such as France, there is no requirement for the spouse to prove a need for the maintenance payments and an end date does not have to specify (as it does in Scotland where it is normally limited to three years).

Pre-nuptials

Pre-nuptial agreements have becoming increasingly more common in recent years as wealthier spouses attempt to protect their assets from being divided in the event of a divorce.

In England and Wales, a pre-nuptial agreement is not recognised as legally binding although the judge will take it into account. If the marriage has been short-lived there is a reasonable chance the pre-nup will be allowed to stand but if the couple have been together for a reasonable amount of time or circumstances have changed, expect to see the agreement completely disregarded.

France takes a very different view and almost provides a pre-nuptial agreement as part of its constitution. French law states that unless specified to the contrary, any assets acquired during the marriage – during not prior – shall be split equally upon the dissolution of the partnership. This is stated as part of the French Civil Code. However, any individual wanting a different arrangement can simply set up a marriage contract which as long as it is ratified by a notary will be recognised if a divorce takes place[2].

Grounds for divorce

Having made the decision to get married, you could be mistaken for thinking you also have the right to petition for divorce if you realise things aren’t working out. However, in some countries, a divorce is only granted when specific criteria are fulfilled.

In England and Wales, a divorce can be processed if the marriage has ‘irretrievably broken down’ as evidenced by any of five factors which include living separately, desertion, adultery and unreasonable behaviour. A divorce cannot be requested until the marriage has been in place for at least 12 months[3]. Many countries across the European Union have a similar set of values which stipulate what types of behaviour or actions are considered justifiable grounds for allowing a divorce to take place. In Hungary, the Family Law Act approaches things rather differently. Rather than setting out the criteria which has to be met for a divorce to be granted the court has the responsibility for deciding whether as a marriage has ‘completely and irretrievably broken down’. To do this they will examine the full facts and conduct an investigation; they are not concerned with the matter of blame, just whether the marriage can be saved. The only exception to the Family Law Act rules is if both parties agree that a divorce is the best way to proceed, then the courts will permit the action without further investigation[4].