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Divorce is the dissolution of marriage within legal bounds, and dealing with issues connected to divorce can be very traumatic. Even so, many marriages end this way. Popularly thought to be a very common issue in the United States, but in actuality divorce rates in Europe are not much better and in fact may be worse.
It may surprise you to know that by recent survey data, both the US and the UK actually hover at around 40% divorce rate compared to others like Portugal, Belgium, and Denmark, which break 50% to 60%.
Divorce can exhaust you mentally, physically and financially so it is just right to know the direction you’re headed when thinking about divorce. Divorce laws are of course different for every country, but in some ways just divorce laws between states can be as varied as entirely different countries. As much as the US and the UK have strong similarities there are also important cultural differences.
With these oddly similar numbers, do they view marriages and divorce the same way?
1. There is no No-Fault Divorce in England and Wales.
There are two ways to approach divorce – Fault and No-Fault.
The first one is the No Fault divorce, which includes lack of support from your spouse and any other cause without any rational possibility to reconcile. This includes two parties living apart from each other for three years or more. Another case would be due to mental health issues that last for more than three years, marriage could be ended as there may be no chance for recovery.
The other type is the Fault Divorce, which often times the most common basis for divorce conditions. This includes cruelty or bad behavior and abuse towards the partner (whether mental or physical), adultery or infidelity, felony (when a partner commits crime and imprisoned for more than a year) and abandonment (when partner leaves the other for more than a year).
England and Wales does not have the provisions for no fault divorce; that is, one party cannot unilaterally decide to end the marriage due to differences. A fault-based system imposes penalties on the misbehaving party in a relationship, but of course when neither want to lose their properties and rights to their children they must have an option other than suffering a loveless marriage.
Among the grounds for divorce there is one way to achieve functionally the same result, when married partners live apart with mutual consent for at least two years. However, this period may be prolonging the pain of an irreconcilable marriage and imposes greater burden on their children. Ireland has a harsher requirement, four years before divorce is allowed under grounds of separation.
Scotland had No-Fault Divorce provisions since 2006.
2. Minimum amount of time to be married before allowed to file for divorce
In the United Kingdom, the couple must be married for at least a year prior for a divorce case to be filed for petition.
In the US, in theory you can apply for a fault-based divorce almost immediately if the marriage would be harmful. For amicable no-fault divorce, it generally depends upon the State but about one year of separation.
Alimony or terms of spousal support still tends to be awarded based the length of time being married.
3. The Decree Nisi and the Decree Absolute
Divorce proceedings in the US have an almost clinical efficiency. Most of it is spent in talks and negotiations between lawyers, only taking it to court when there must be a judgement laid on adversarial conditions regarding custody and properties.
Divorce proceedings in the UK, being an at-fault mechanism, is between the petitioner and respondent. The respondent may choose to defend (against) the divorce or file a divorce petition of their own. When the intent to defend or both sides have filed divorce petition, the court will schedule a hearing.
The Decree Nisi and the Decree Absolute are the final two stages of divorce proceedings. When the court issues the Decree Nisi, it has found that the marriage is no longer viable. After a specified amount of time, if the Decree Nisi is not given grounds to be retracted, it will become a Decree Absolute, it does not apply merely to divorce proceedings.
Even so it is possible that the court can suspend divorce process even after issuing the Decree Nisi when there is a reason for both parties to reconcile with each other. Only the petitioner may ask for this suspension.
4. Child Support Agency and maintenance
There is no court power in terms of dealing with maintenance of the children. It is now only limited to a number of special cases, when both parents apply for order of consent. These can happen in payment of school fees or when there are care costs for a disabled child. CSA assesses based on information provided and will chase when defaulted.
In this case, lawyers can assess their client’s capacity to make an application to the courts or leave it for the CSA.
In the US, a parenting plan is required and both parties are encouraged to decide on custody and visitation agreements.
5. Divorce automatic resident rules
The effect of divorce decree for a property on a different country may vary. Logistically, it would be best to file the divorce decree in the country where most of your assets are located.
Interestingly, one only needs to stay in the UK for 183 days or more to be considered a resident.
But even if you don’t, you can still be automatically considered to have legally been a resident of the UK if you have a home in the UK for (owned, rented, or lived in) more than 90 days and present in said home for at least 30 days. If you have sufficient family ties to the UK and you have spent more than 15 days with them, you may be considered a resident for jurisdictional purposes.
US laws allow you to file for divorce even if you were married overseas. If either you or your spouse is American, jurisdiction still often a matter of where you presently live than where you filed your marriage. Divorce across borders have much greater issues with regards to custody and division of property.
Article by Hadaway & Hadaway solicitors in the North East UK.