Snježana Husinec, PhD shusinec@pravo.hr Unit 23 DIVORCE Snježana Husinec, PhD shusinec@pravo.hr

Judicial Divorce under English Law MARRIAGE DISSOLUTION / TERMINATION BREAKDOWN OF MARRIAGE The rules governing marriage (eg. what is to amount to a breach of the contract; what compensation shall be paid for any such breach; how the contract may be brought to an end etc.) Determined by the law of the land (annulment of marriage =declaration that a marriage is void)

Divorce Law in England before 1969 THE DOCTRINE OF MATRIMONIAL OFFENCE Divorce granted only to the “innocent” party to a marriage who could prove that the other party had been guilty of some wrongful conduct such as ADULTORY CRUELTY DESERTION

Change of Attitude to Divorce a growing fashion for divorce – an increase in the popularity of marriage MARRIAGE – no longer necessarily permanent (people marry younger with less preparation) MARRIAGE NOWADAYS an attempt at finding a life-partner

PETITIONER RESPONDENT Divorce procedure filing/issuing a DIVORCE PETITION PETITIONER RESPONDENT granting a DIVORCE DECREE a DECREE NISI (an order of the Court confirming that the grounds for the divorce have been proved and that the marriage has irretrievably broken down) b) a DECREE ABSOLUTE (legal document that ends the marriage; can be applied 6 weeks and one day after decree nisi)

Fault vs. No-Fault Divorce Divorce by consent (no-fault; also uncontested divorce): - parties are not required to prove either was at fault for the breakdown of the marital relationship or that specific grounds exist for a divorce - the moving party must only show that the marriage is irretrievable, broken or irreconcilable differences exist (USA most states - no-fault divorce) Fault divorce (contested divorce): - a divorce granted for reasons which are typically enumerated in law - an action for divorce maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the legal grounds (England and Wales)

Fault or No Fault Divorce? Example 1: Wendy files for divorce, stating that her husband, Donald, had an affair with his secretary. Wendy offers evidence to the court in the form of photographs, text messages, and a statement by the secretary. Although Wendy’s state requires a 6-month separation period for no fault divorces, there is no waiting period for a fault divorce, and because she has proven her case, the divorce is granted within weeks.

Fault or No Fault Divorce? Example 2: Larry is very concerned about protecting his financial and property assets when he files a divorce. His understanding is that, if he proves that his wife, Natalie, did something wrong to cause the destruction of the marriage, the division of marital assets will be made in his favour. Larry appears at court claiming Natalie committed adultery several times, and he just can’t take it anymore. Larry wants to keep the house, both cars, and all of his retirement fund. In addition, Larry asks that no spousal support be ordered. When questioned by the judge, however, Larry is unable to provide any actual evidence of Natalie’s infidelity. He has no records of phone calls or text messages, no emails, no photographs, and no witness testimony to present to the court. Natalie is not objecting to the divorce, but is requesting an equal division of marital property, and a substantial amount of spousal support. Because Larry could not prove his case, the judge orders the divorce, to be final six months after the date of filing, and divides the marital property equally. The judge also orders spousal support to be paid to Natalie for a period of three years, or until she gains full time employment, or remarries.

"irreconcilable differences“ How to obtain divorce under English divorce law? England and Wales- a fault divorce system "irreconcilable differences“ (unhappy marriage which couples want to bring to an end) –the most common reason why people file for divorce (does not exist as a ground for divorce) To obtain a divorce on this ground English law insists that that one of the the marriage has broken down irretrievably that one of the parties to the marriage has behaved in such an unreasonable manner that the other finds it intolerable to live with him or her (fault divorce)

The Grounds for Divorce under English law divorce in England & Wales "irretrievable breakdown" of the marriage must be proved by evidence of one of five "facts“ (Matrimonial Causes Act 1973) Adultery (the Petitioner needs to prove that he/she finds it intolerable to live with the Respondent; divorce takes place on the basis of the Respondent’s admitted adultery committed with a person of the opposite sex (for opposite-sex marriages) or same sex (for same-sex marriages) during the period of 6 months before the petition) Unreasonable behaviour (e.g. physical violence, verbal abuse, habitual drunkenness or drug-taking; refusing to pay for housekeeping, etc.) - the most frequent ground – an “instant divorce” Desertion (to physical separation there must also be an intention on the part of the deserting spouse to permanently end cohabitation) without the agreement of another spouse;without a good reason;to end the relationship;for more than 2 years in the past 2.5 years Two years' separation with consent (CONSENT DIVORCE) (the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted – consent divorce) Five years' separation without consent (the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition; respondent doesn’t consent)

Consequences The legal process for divorce may also involve issues of: spousal support child custody child support distribution of property division of debt

Essential expressions dissolution/termination/breakdown of marriage = razvrgnuće/raskid/raspad braka annulment of marriage = poništenje braka to avoid/annul marriage = poništiti brak terminate = raskinuti, okončati to obtain divorce = dobiti razvod braka grounds for divorce = razlozi za rastavu to file a divorce petition = podnijeti zahtjeva za razvod to grant a divorce decree = izdati rješenje o razvodu braka irretrievable breakdown = nepovratni raspad irreconcilable differences = nepomirljive razlike a petitioner / a respondent = podnositelj zahtjeva / tuženik adultery, cruelty, desertion = preljub, okrutnost, napuštanje no-fault divorce = divorce by mutual consent = uncontested divorce = sporazumni razvod braka ( divorce is granted without requiring the petitioner to provide evidence that the defendant has committed a breach of the marital contract)

Complete the following sentences. The rules governing marriage are determined by …. Until 1969 the grounds for a divorce were …. Where there are children the violent deed of the final rupture called divorce can be tragic because the children suffer either from ….. or ….. In the last decades most people …… divorce. A consequence of the growing fashion for divorce has been ….. and … The admissible grounds for divorce nowdays are …

Find English equivalents for the following legal terms and expressions. poništiti, promijeniti ili prekinuti ugovor biti propisan zakonom kršenje/povreda ugovora štetan/protuzakonit postupak poput preljuba, okrutnosti i napuštanja osnova/temelj za razvod neuspjeh braka raskid bračnih veza čin nasilja

Croatian Family Act (2015) Study the following articles regulating divorce in Croatia and compare them with the regulations of English law. Translate them into English. Članak 34. (1) Bez obzira na oblik u kojem je sklopljen, brak prestaje: smrću bračnog druga, proglašenjem nestalog bračnog druga umrlim, poništajem ili razvodom. Članak 42. (1) Razvod braka može tužbom zahtijevati bračni drug, a oba bračna druga sporazumnim zahtjevom. (2) Bračni drug nema pravo na tužbu za razvod braka za vrijeme trudnoće žene ili dok njihovo dijete ne navrši godinu dana života. Članak 43. Sud će razvesti brak: 1. ako utvrdi da su bračni odnosi teško i trajno poremećeni, ili 2. ako je od prestanka bračne zajednice protekla godina dana, ili 3. ako oba bračna druga sporazumno zahtijevaju razvod braka.