A Comparative Analysis of the Divorce Law in
England and Denmark
Thesis: CLM/MA in LSP
English Department
Legal language/comparative law
Anne Hofmann Larsen
Supervisor: Bente Jacobsen
Number of characters, thesis: 176,987
Number of characters, summary: 4,207
September 2010
The Aarhus School of Business
Table of contents
1. Introduction ...........................................................................
5
1.1 Problem statement ............................................................................
1.2 Delimitation of study .........................................................................
1.3 Method and structure .........................................................................
6
7
10
2. Theory .................................................................................... 16
2.1 The comparative law theory ............................................................... 16
3. A historical perspective ......................................................... 19
3.1 The legal systems ................................................................................. 19
3.1.1 Acceptance of the Civil law tradition ..............................................
20
3.1.1.1 Common law tradition ......................................................... 20
3.1.1.2 Civil law tradition.................................................................. 21
3.1.2 The sources of law and the principles behind a legal decision .......
22
3.1.2.1 Common law tradition .......................................................
3.1.2.2 Civil law tradition ...............................................................
22
24
3.1.3 Procedure, judges and lawyers and their educational background
25
3.1.3.1 Common law tradition........................................................
3.1.3.2 Civil law tradition ...............................................................
25
26
3.2 Sub conclusion .................................................................................... 29
2
3.3 The historical development of the divorce law in England ................... 30
3.3.1 From 1500 to 1857 – from divorceless society to divorce by
'Private Act of Parliament'...............................................................
3.3.2 From 1857 to 1923 – from judicial divorce toward elimination
of the 'double sexual standard' .......................................................
3.3.3 From 1923 to 1937 – from elimination of the 'double sexual
standard' toward the first extension of the grounds for divorce ....
3.3.4 From 1937 to 1969 – from the first extension of the grounds for
divorce toward one sole ground and the decline of the
matrimonial offence doctrine..........................................................
30
31
33
34
3.4 The historical development of the divorce law in Denmark .................. 39
3.4.1 From 1500 to 1922 – from divorceless society to unregulated
administrative separation and divorce ............................................. 39
3.4.2 From 1922 to 1969 – from the first secular marital act
toward easier legal separation (separation)...................................... 41
3.4.3 From 1969 to 2007 - from easy legal separation toward
further reduction of legal separation time and abolition of guilt..... 42
3.5 Sub conclusion ..................................................................................... 46
4. Existing divorce law in England and Denmark .................... 47
4.1 Existing grounds for divorce in England ................................................ 47
4.2 Existing procedure for obtaining a divorce in England ........................... 51
4.2.1 Undefended divorces ....................................................................... 51
4.2.2 Defended divorces ............................................................................ 52
4.2.3 The two-part process: decree nisi – decree absolute........................ 52
4.3 Existing grounds for divorce in Denmark .............................................. 54
4.4 Existing procedure for obtaining a divorce in Denmark ......................... 57
4.4.1 The administrative procedure........................................................... 57
4.4.2 The judicial procedure ...................................................................... 58
3
5. Comparative analysis ............................................................. 59
5.1 Existing grounds for divorce in England and Denmark .......................... 59
5.1.1 'Ground' and facts for divorce .......................................................
5.1.2 Distinction between fault/no-fault.................................................
5.1.3 Bar to divorce .................................................................................
5.1.4 Individual 'grounds' and facts for divorce ......................................
5.1.5 Wording of the Acts .......................................................................
59
60
60
60
63
5.2 Existing procedure for obtaining a divorce in England and in Denmark . 64
5.3 Sub conclusion .................................................................................... 67
6. Analysis and discussion of why the established differences exist . 68
6.1 Sub conclusion ...................................................................................... 76
7. Conclusion and perspectives .....................................................
77
8. Summary ..................................................................................
80
References ...................................................................................
82
Appendices ..................................................................................
88
4
1. Introduction
From earliest years, in both England and Denmark, and until around the 18th and 19th centuries,
getting married was a relatively uncomplicated affair, in which the law did not involve itself too
much; an individual was free to 'marry' merely by the exchange of vows, or by the act of sexual
intercourse with their partner1.
Getting a divorce, on the other hand, was a completely different, highly controversial and
complicated affair since the Christian idea of marriage as an indissoluble life-long union prevailed
in both countries2; this view becomes unmistakably clear in the two statements below.
"Those whom God had joined together were not to be put asunder by any human act" 3.
"Hvad Gud har sammenføjet, må et menneske ikke adskille"4 (What God has joined together, a
human being must not put asunder).
To judge from the above statements, it seems that in ancient society the public view, i.e., that of
the Church, on divorce was virtually the same in England and Denmark; according to the medieval
Canon law5 6, divorce was not acknowledged, except in extraordinary cases.
In the meantime, however, divorce has become an available legal remedy obtainable before a
judicial court7, and the rules on divorce matters have developed continuously since then and been
relaxed significantly in both countries.
Similarly today, at least on the surface, the two countries appear to be relatively alike in rather
many aspects: both are western democracies, members of the EU, have a predominantly Christian
population8, and a practical and non-philosophical approach to many things in life9. And this is
probably the reason why the two countries are so often being compared in various respects.
Seen in this light, one may well be tempted to ask what exactly justifies a thesis on a comparative
analysis of the divorce law in England and Denmark when there seems to be so relatively little
difference between the two countries.
1
Rodgers, M.E. 2004. Understanding Family Law. Routledge-Cavendish, p. 1, Nielsen, Linda og Vorstrup, Jesper. 2001.
Familieretten. 3. udg. Forlaget Thomsen, p. 23, Tamm, Ditlev. 1989. Lærebog i Dansk Retshistorie. Foreløbig udg. Jurist- og
Økonomforbundets Forlag, p. 47, and Glendon, Mary Ann. 1989. The Transformation of Family Law. The University of Chicago
Press, p. 19.
2 Nielsen, Linda. 2008. Skilsmisseret – de økonomiske forhold. København: Thomsen Reuters, p. 23, and Standley, Kate. 2006. Family
Law. 5th ed. New York: Palgrave Macmillan Law Masters, p. 146.
3 Cretney, Stephen. 2003. Family Law in the Twentieth Century. Oxford – New York: Oxford University Press. p. 161.
4 Nielsen, Linda og Vorstrup Jesper. op.cit., p. 23.
5 Canon law is the body of laws and regulations made by or adopted by the ecclesiastical authority, for the government of the
Christian organization and its members. Colloquially also referred to as 'Church law'.
6 Andersen, Ernst. 1971. Familieret. 3. udg. København: Juristforbundets Forlag, p 133.
7 Cretney, Stephen. 2003. Principles of Family Law.7th ed. London: Thomson. p. 269, and Tamm, Ditlev. op.cit., p. 236
8 http://en.wikipedia.org/wiki/Anglicanism, and
http://www.dr.dk/Tro/Temaer/Troens%20rødder/Kjeld%20Holm/20060809103729.htm
9 http://frost.blogs.berlingske.dk/2008/09/22/farvel-til-danmark-2-%e2%80%93-et-konsensussamfund/
5
But as is often the case, closer inspection reveals that under the surface things tend to be more
complex. And indeed, studying family law at the Aarhus School of Business, Aarhus University, at
the 2nd semester legal language course programme, ASB Master Programme, soon made it clear to
me that this legal field covers an area whose rules of law differ quite remarkably in a number of
ways in the two countries. This finding inspired me not just to make a thorough investigation into
the area in order to carry out a comparative analysis to delineate the differences, but also to make
attempts to find out why these differences exist.
Hence, the overriding purpose of this thesis is indeed to make a comparative analysis, but perhaps
to some extent in a more untraditional way, since it will combine the rigidity of outlining the
existing rules of the divorce law with the more soft approach of investigating the main question of
this study namely, why the established differences, in substance and in tone, within the two legal
areas of the divorce law in question namely, 'the existing grounds for divorce' and 'the existing
procedure for obtaining a divorce' exist (see also 1.1 below). Thus, the readership should be
prepared to read a comparative analysis that distinguishes itself from a traditional comparative
analysis in that it treats only selected sections and provisions within the legal areas in question,
and be willing to accept some sacrifices both in range and depth of coverage (see subchapter 1.3 –
Method and structure). It is my hope that this way of building up and delimiting the study will
provide the readership with a more holistic view on and a better understanding of the subject
matter.
1.1
Problem statement
Based on a comparative analysis that will establish the differences, in substance and in tone,
within the following two areas of the divorce law in England and Denmark namely,
-
the existing grounds for divorce, and
the existing procedure for obtaining a divorce,
the main question that I will attempt to answer in this study is:
Why do these differences, in substance and in tone, within the two above-mentioned areas of the
divorce law exist?
6
1.2
Delimitation of study
It seems natural to consider family law as a kind of story starting with marriage and sometimes
ending in divorce. Seen from this perspective, and if only divorce, which is the subject matter of
this study, is considered, it might have seemed obvious to include property and finance on divorce
and arrangement for children, to complete the story, so to speak. These two areas, however, have
been left out. Not because they are of less importance and interest, but simply due to time and
space limitations.
Instead only the areas governing the grounds for divorce and the procedure for obtaining a
divorce will be treated here. It is my belief that selecting only these two areas as the point of
departure for this thesis cannot only be justified in terms of time and space, but also in terms of
substance, i.e. if we approach divorce from either a human or material aspect.
As a case in point, in a simple world, the story of family law could probably be reduced to two
'chapters', namely marriage and divorce, focusing exclusively on the human aspect - i.e. the desire
to marry/divorce or not – only, without having regard to the material aspect - i.e. ancillary relief,
financial settlement and arrangement for children. With this division in mind, it could be argued,
and perhaps reasonably so, that the procedure for obtaining divorce should fall under the material
aspect. However, I have chosen to categorise this area under the human aspect as the procedure
is deemed necessary in order to obtain the status 'divorced' in the same way as some kind of
marriage ceremony is required in order to obtain the status 'married'. It is on the basis of these
considerations that I find it defensible and relevant to delimit this study to the two areas
mentioned and make them the basis of the investigation with regard to establishing why the
differences within these two areas exist.
Having selected the areas for the comparative analysis and established, by way of introduction,
that a number of differences exist, the next point to be considered is where to search for an
answer to why they exist? At first, it seems obvious to search for it in the concepts behind the
legal system (also referred to as the legal system/culture argument) of the two countries and in
the historical development (also referred to as the historical development argument) of their
respective divorce law. And this is also where I have decided to look for an answer. Scholarly
support for this choice can be found by Phillips and Stone at the end of this subchapter 1.2 as well
as by Shears and Stephenson who say that the reason for any given character of the law is to be
sought in the evolution of the legal system or legal tradition10 11. It will be assumed in this thesis
that the legal tradition to which the Danish legal system belongs is the Civil law tradition12, which
10
Most experts operate with three influential legal systems or traditions in contemporary world: Common law, Civil law and
Socialist law. Zweigert, Konrad. 1998. An Introduction to Comparative Law. 3rd ed. Oxford – New York: Oxford University Press. pp.
64-188 and Merryman, John Henry. 1985. The Civil Law Tradition. 2nd ed. California: Stanford University Press. pp. 1-5.
11 Shears, P. and Stephenson, G. 1996. James' Introduction to English Law. Butterworths, London, Dublin and Edinburgh. p. 8.
12
Civil law in this context must not be confused with what is called 'civilret' in Danish. It is one of the two main categories into
which Danish law is divided. The other category is called 'offentligret' in Danish. The English translation of the two terms would be
'private law' and 'public law' respectively. 'Civilret' is also often referred to as 'privatret' or 'borgerlig ret' in Danish and would also
7
traces its origin directly to Roman law that bases its existence on the code of Roman law called
Corpus Juris Civilis,13 and contains huge mutual differences, although this adherence has been
subject to much debate among experts14. Likewise it will be assumed that the legal tradition to
which the English legal system adheres is the Common law tradition, which dates back to the
conquest of England by the Normans in 106615.
With regard to the historical development of the divorce law (the historical development
argument), since no single model of change exists that can explain the history of marriage
breakdown and divorce in one country for all periods of time and for all classes of society, it is
difficult to confine the chronology of changes in attitudes towards divorce, and much more
difficult to explain it. Those who claim that either the law has always formed marital practices or
vise versa, or that the causes of change were at the end legal, economic and social, or cultural and
moral, or intellectual, is presenting a too simplistic conclusion to the readership - a conclusion,
which is not supported by evidence16. As Lawrence Stone puts it: 'History is messier than that'17.
Everything in the social, economic and legal fields interacts, and the reasons may lie anywhere in
the whole realm of social life18. Therefore it would be too much to say that one must
systematically master all this knowledge before one is allowed to begin any kind of comparative
work and attempt to find answers to why differences exist19. Consequently, and despite Stone's
and Phillips' recommendation that an analysis on divorce laws always must relate to wider
considerations of society, I have chosen to focus mainly on the development of legal changes of
the two areas of the divorce law mentioned in the problem statement.
be conveyed into 'private law' in English.
http://www.denstoredanske.dk/Samfund,_jura_og_politik/Jura/Almindelig_retsl%C3%A6re,_retsfilosofi_og_terminologi/civilret.
13 When reference is made to Roman law this is normally to be understood as a reference to a specific code of Roman law, namely
'Corpus Juris Civilis' issued by the Roman Emperor Justinian during the years 529-534. With the fall of the Roman Empire, the
'Corpus Juris Civilis' fell into disuse. However, late in the 11th century there was 'a revival of Roman law' – conceded to have its
beginning in Italy where the first modern European university appeared at which law was a major object of study. Over the years,
though, the original Roman law was influenced by different legal scholars resulting in Roman law becoming a hybrid consisting of
many heterogeneous legal directions. This mix of different legal directions was transmitted to Civil law and the reason why there
are so relatively many variations of the Civil law tradition today. Merryman, John Henry. op.cit., pp. 6-13.
14 Zweigert is of the opinion, as is Merryman, that it would be correct to attribute the Nordic laws, which comprises Danish law, to
the Civil law tradition although the laws must undoubtedly form a special legal tradition alongside the Romanistic and German legal
traditions of Civil law, since Roman law has played a smaller role in the legal development of the Nordic countries than it has in
Germany. Zweigert, Konrad. op.cit., p. 277 and Merryman, John Henry. op. cit., p. 5. However, Sundberg disagrees with this stance
claiming that Denmark belongs to the overall Civil law tradition as there is no such thing as a special Scandinavian Civil law
tradition. Sundberg, Jacob.W.F. 1969. Civil Law, Common Law and the Scandinavians. Stockholm: Almqvist & Wiksell.p. 204. The
adherence of English law to the Common law tradition seems to be indisputable though. See also note 15.
15 It is correct that before the Norman Conquest in 1066, England did have legal practices under the Anglo-Saxon kings. But
according to experts, English legal history begins by the Norman Conquest in 1066. Although the Normans did not make a sudden
change in English law in 1066, the subsequent effect of the Norman invasion on the law was so profound that earlier influences can
be ignored. It is estimated that the formation of the Common law of England was complete by about 1250.This should be seen in
contrast to the Civil law tradition which has existed, however in various sub-traditions and subject to many changes, since the reign
of the Roman emperor Justinian in the 6th century A.D. Zweigert, Konrad. op.cit., p. 182, and Tamm, Ditlev. 2009. Global Retskultur
– en indføring i komparativ ret på historisk grundlag. Frederiksberg: Samfundslitteratur. p. 35. See subchapter 3.1 for further detail
on the legal systems.
16 Phillips, Roderick. 1988. Putting Asunder. A history of divorce in western society. Cambridge – New York – New Rochelle –
Melbourne – Sydney: Cambridge University Press p. 630-640.
17 Stone, Lawrence. 1990. Road to Divorce. Oxford: Oxford University Press, p. 27.
18 Zweigert, Konrad. op.cit., p.44.
19 Ibid. p.36.
8
Finally, as to subchapters 3.3 and 3.4 - The historical development of the divorce law in England
and Denmark - my reason for making the beginning of the 16th century the point of departure for
the outlining of the this subchapter, is that with the Reformation followed a time that marked a
change away from a restrictive divorceless society towards a secularized20 society that slowly
started to accept and tolerate some kind of dissolution of marriage21. It also follows from the
relatively long time period subject to investigation that subchapters 3.3 and 3.4 cannot be treated
in detail.
Based on these considerations, a definition and description of the legal systems together with a
description of the historical development of the divorce law in England and Denmark appear to be
both relevant and appropriate fields of study in an attempt to answer the main question of this
study.
20
Refers to the decline of formal and informal religious or spiritual influences on political, social, and personal life and their
replacement by non-religious influences. Phillips, Roderick. op. cit., p. 192.
21 Dübeck, Inger. 1994. Introduktion til Dansk Ret. Nomos Verlagsgesellschaft. p. 13. Cretney, Stephen. 1992. Elements of Family
Law. London: Sweet & Maxwell. p. 30 and Graversen, Jørgen m.fl. 1980. Familieret. København: Juristforbundets Forlag. p. 4.
9
1.3
Method and structure
Chapter 1 – Introduction
This chapter introduces the readership to the subject matter of this study. Delimitation as well as
the method and structure of the thesis are also provided for in this chapter.
Chapter 2 - Theory
This chapter contains subchapter 2.1 – The comparative law theory which is concerned with an
outline of the elements on which the comparative law theory builds. The structure is mainly based
on Lando's and Zweigert's presentation of the comparative law theory, however, structured so as
to best explain its application on this study.
Chapter 3 – A historical perspective
This chapter contains three subchapters namely:
Subchapter 3.1 – The legal systems
The structure chosen for subchapter 3.1 the legal systems is based on a number of criteria thought
most relevant to retrieve the essence of each of the two legal traditions: Common law and Civil
law, and subsequently the differences between them. Inspiration for the selection of these criteria
is, in the main, found in Sundberg's book22, but also in Edlin's book23. Since their points of
departure for analysing these legal traditions differ from mine, the criteria have been slightly
modified in order to fit the purpose of this study. Given the nature of theorizing about concepts
such as Common law and Civil law, the division based on the above criteria will inevitably overlap
since no one criteria can be understood in isolation from the others. Both Sundberg and Edlin offer
a simplistic structure compared to Merryman's structure, for instance, which is more
comprehensive and detailed. Despite the simplicity of the structure applied by Sundberg and Edlin,
it grasps, in my view, the complexity of the nature of theorizing about legal systems, because it
uses the overlap mentioned above in a complementary way that furthers understanding.
Subchapter 3.3 – The historical development of the divorce law in England
In this subchapter the historical development of the divorce law in England will be outlined. To
present the readership with a structured overview of the development, the subchapter has been
divided into time periods centring on the revisions of the English divorce law. As the main focus is
on the development of the substantive law, the procedural law will not be included in the
overview table available at the end of the subchapter, but will of course be mentioned throughout
the subchapter.
Subchapter 3.4 – The historical development of the divorce law in Denmark
The structure of this subchapter is similar to the one applied to subchapter 3.3. However, the
statutory amendment made in 2003 to the Danish Formation and Dissolution of Marriage Act (Lov
22
23
Sundberg, Jacob.W.F. op.cit.
Edlin, Douglas E. 2007. Common Law Theory. Cambridge University Press.
10
om ægteskabs indgåelse og opløsning) is considered insignificant in substance24 and, therefore,
will not be treated under a separate headline. Translations into English of the Danish terms are my
translations. The translations are followed by the original Danish terms in italic. In general, the
English terms used to describe the historical development of the divorce law in Denmark and
other circumstances relating to Denmark in chapters 4, 5 and 6 are predominantly source-text
oriented25.
Chapter 4 – Existing divorce law in England and Denmark
This chapter contains four subchapters namely:
Subchapter 4.1 – Existing grounds for divorce in England
This subchapter will make an outline of the existing ground for divorce in England. Under PART I of
the Matrimonial Causes Act 1973 (MCA 1973) only Divorce, sections 1 and 3 will be treated in
detail. Sections 2, 5 and 10, except 10A, will not be treated in detail. For details on these sections
appendix 1 may be consulted. Inspiration for the selection of sections and structure of this
subchapter is based mainly on the structures found by the authors treating this area26.
Subchapter 4.2 – Existing procedure for obtaining a divorce in England
This subchapter will make and outline of the existing procedure for obtaining a divorce in England.
The Family Proceedings Rules (FPR) 1991 which govern the divorce procedure will not be treated
in detail to the same extent as the MCA 1973 in subchapter 4.1. An outline of the overall principles
of the procedure will be sufficient to show relevant and significant differences between the two
countries' divorce procedure and hence, no specific references will be made to any sections or
rules as this would be beyond the scope of this study. Support for this overall approach is also
found by the authors treating this area whose approaches are very varying and predominantly
treated from an overall perspective. Consequently, the wording of the rules and provisions
governing the procedure will not be subject to analysis in chapter 6. Finally, this approach is also in
line with the limited focus attributed to the divorce procedure in subchapters 3.3 and 3.4.
Subchapter 4.3 – Existing grounds for divorce in Denmark
This subchapter will make an outline of the existing grounds for divorce in Denmark. Sections 31 to
36 of the Danish Act to Consolidate the Law on Formation and Dissolution of Marriage 2007
(DACLFDM 2007) (Lovbekendtgørelse nr. 38 af 15/01/2007 om ægteskabs indgåelse og opløsning)
will be treated in detail in this subchapter. However, the grounds for legal separation will be
mentioned in brief as they are essential to the understanding of the importance of legal
separation as ground for divorce. To help the readership, a translation into English of the original
Danish sections mentioned above as well as sections 6, 9 and 23 of the Act will be available in
appendix 3. Sections 6, 9 and 23 will also appear in appendix 2. Otherwise, the structure of this
subchapter is similar to that of subchapter 4.1.
24
Lund-Andersen, Ingrid. 2003, 5.udg. Familieret. Jurist- og Økonomforbundets Forlag. p. 190.
Source-text oriented translation focuses on the form and content of the source text. Scholdager, Anne. 2008. Understanding
translation. Aarhus: Academica. p. 71.
26 Herring, Jonathan. 2009, 4th ed. Family Law. Harlow: Longman Law Series and Standley, Kate. op. cit., among others.
25
11
The translation available in appendix 3 is based on a predominantly source-text oriented
macrostrategy27 as the skopos of the target text is to focus on the source text culture both with
regard to content and wording. To create uniformity in relation to the presentation of the Danish
sections, the English layout has been copied to avoid confusion in connection with the Danish §sign. Although English grammatical and syntaxical conventions have been observed, which slightly
pulls the translation in a target-text oriented direction on the microstrategic level28, focus is still on
the source text.
Subchapter 4.4 – Existing procedure for obtaining a divorce in Denmark
This subchapter will make an outline of the existing procedure for obtaining a divorce in Denmark.
The structure of this subchapter is based on the same principles as those described above under
subchapter 4.2.
Chapter 5 - Comparative analysis
This chapter constitutes a comparative analysis based on the findings in chapter 4 and thus
establishes the differences within the two selected areas mentioned in the problem statement. In
subchapter 5.1, first the content then the wording of the sections concerned with the grounds for
divorce are compared. In subchapter 5.2, the overall procedure for obtaining a divorce in the two
countries is compared.
Chapter 6 – Analysis and discussion of why the established differences exist
This chapter analyses and discusses why the differences established in chapter 5 exist. The
headline structure will not follow that of chapter 5 as the explanations and arguments overlap to a
large extent. Some of the suggestions and findings may appear oversimplified in some regards.
However, the areas treated seem to be relatively complex and thus calls for some simplicity to
illustrate the explanations for the existence of the differences. Moreover, every single difference
established in chapter 5 will not necessarily be treated in chapter 6 as this would be beyond the
scope of this study and because it would be too much at the expense of the overall understanding
of the main differences. As the literature analysing the Danish legislation within the two areas
subject to investigation is very scarce, the discussion and findings to this purpose will be based on
my own analyses to a very high degree.
27
Macrostrategies refer to the overall approaches available to the translator. There are normally two macrostrategies available.
The source-text oriented macrostrategy which focuses on the form and content of the source text, and the target-text oriented
direction/macrostrategy which focuses on the effect of the target text. Scholdager, Anne. op.cit., p. 71.
28 On the microstrategic level the translator deals with specific problems in connection with words, phrases and sentences. The
macrostrategic choice should normally be reflected in the applied microstrategies and vise versa. Scholdager, Anne. op.cit., p. 89.
12
Chapter 7 – Conclusion and perspectives
This chapter concludes on the analysis and discussion in chapter 6 and presents some perspectives
with regard to future reforms of the divorce law in England and Denmark as well as touches briefly
upon a prospective future harmonisation of the divorce law on a European level.
Sub conclusions
Sub conclusions have only been included where they appear to be relevant that is after
subchapters 3.1, 3.3, 3.4 and after chapters 5 and 6.
Evaluation of information sources:
My main reason for using several books covering the same subject for the preparation of
subchapter 3.1 the legal systems is that some of the authors seem slightly 'coloured'. John Henry
Merryman, Legrand and Friedman who are all presumably children of the Common law tradition
have, not unexpectedly, a tendency to favour the Common law system. The same appears to be
true for Zweigert and Jacob W.F. Sundberg, however, in reverse. Lando seems to have chosen a
more neutral approach to the subject, but is however inclined to favour the Civil law tradition to
which he also must be assumed to belong. So, by contrasting these authors, I believe I have been
able to present the readership with a balanced presentation of the subject matter.
As to a description of the historical development of the divorce law in England, an amazingly huge
and relevant amount of English literature is available. Stephen Cretney, who has written several
books on the subject, and who is often cited and referred to in other books, has been an
invaluable source for the preparation of this subchapter. Together with Philips and Stone he
provided me with different approaches, including explanations, to the subject. The aim of their
books is specifically to explain the law as well as to describe the historical background and analyse
the factors underlying the law's development. Unfortunately, the same number of books on the
development of the divorce law in Denmark is not available, it seems. The most profound
overview of the historical development of the divorce law in Denmark is given by Ernest Andersen
in his book Familieret from 1971. Linda Nielsen and Graversen provided me with a structured
timeline of historical events, but no detailed description. This obliged me to consult the primary
sources that is the Danish acts on formation and dissolution of marriage throughout the period in
question. Furthermore, the development of the Danish divorce law seems difficult to grasp
although it appears less complex than the English. The reason could be that the subject has not
been thoroughly elaborated on and that some legal remedies on divorce developed in Denmark
but were not expressly stipulated in the statutes29.
As to the validity of the sources, the MCA 1973 and the DACLAFDM 2007 can be considered valid
information sources as they are primary sources. The books listed in the reference list of this
thesis, both English and Danish, are secondary sources. There seems to be no reason to question
their validity either. The books seem to be written on topics in the authors' area of expertise. The
authors are all associated with a reputable institution or organization primarily the legal
29
Andersen, Ernst. op.cit., pp. 147 and 151.See also section 3.4.3 of this thesis and note 241.
13
department of various universities. The authors' names are often cited in other sources30 or
bibliographies31, and by other scholars and many of the sources are published by a university
press. Furthermore, most of the books have been revised and updated and the authors are very
much in agreement on the ideas and arguments advanced. The articles referred to in this study
have all been peer-reviewed and the web-pages used have been appraised according to the same
criteria as the other sources. Therefore, there seems to be no reason to question their validity
either.
The readership
The intended readership is, in the main, the English language student at ASB. However, also
people in general who has an interest in and some knowledge of legal language, the law and the
legal system prevalent in England and Denmark, respectively. Irrespective of the narrow legal field
of divorce law treated here, it is my hope that this study may not just provide the readership with
a useful insight into the selected areas of the current divorce law, but also offer some background
knowledge of the legal systems so as to facilitate, hopefully, the understanding of possible
differences within other legal fields between the two countries .
Extension of the Acts
The Matrimonial Causes Act 197332 and the Family Proceedings Rules 1991, as amended over time
extend only to England and Wales33. Scotland and Northern Ireland have separate legislation
governing these areas. The Danish Act to Consolidate the Law on Formation and Dissolution of
Marriage 2007 (DACLFDM 2007) (Lovbekendtgørelse nr. 38 af 15/01/2007 om ægteskabs indgåelse
og opløsning)34, as amended extends only to Denmark. However, it may be extended to both
Greenland and the Faroe Islands by Ministerial Regulation (kgl. anordning) no 307 of 14 May 1993,
as amended and no 37 of 22 January 2002, as amended, respectively35. For the sake of simplicity,
when reference is made to Acts applicable to England and Wales, only England is mentioned.
Definitions
Words such as 'tradition', 'family', 'system' and 'world' are used interchangeably when describing
the legal systems. Furthermore, when reference is made to 'Common law' this is to be interpreted
as the Common law of England that is Common law in its narrow sense, namely Common law as
opposed to 'statute law' (also called legislation or positive law), enacted by the English Parliament,
on the one hand, and Equity36, on the other. When reference is made to Common law in its broad
sense, it will appear from the context. Judge(s) and court(s) are also used interchangeably.
30
Herring, Jonathan. op. cit., pp. 116, 123 and 125.
Glendon, Mary Ann. op. cit., Abbreviations and Lund-Andersen, Ingrid. op. cit., XXXI-XL.
32 http://www.opsi.gov.uk/revisedstatutes/acts/ukpga/1973/cukpga_19730018_en_1
33 http://en.wikipedia.org/wiki/Laws_in_Wales_Acts_1535%E2%80%931542
34 https://www.retsinformation.dk/Forms/R0710.aspx?id=31944. See also appendix 4.
35 Rasmussen, Nell. 2007. Lærebog i familieret. 2. udg. DIKE ApS. p. 192. See also appendix 4.
36 Equity was created during the Middle Ages as a supplementary legal system to Common law. It provided a remedy for types of
wrongs for which the Common law courts could grant no remedy. In the Common law courts the only remedy was damages. As
Equity is a reason built on moral, conscience and fairness, a remedy obtainable in Equity is for example 'specific performance'.
Barker, David and Padfield, Colin. 2001. Law made simple. 10th ed. Oxford: Elsevier. pp. 9-11.
31
14
For the sake of verbal economy, the main Acts will be written in full the first time they are
mentioned. Subsequently, they will be referred to in their abbreviated forms except where
inappropriate.
The terms 'spouse' and 'party' are used interchangeably. The masculine gender 'he/his' includes
the female gender.
To avoid repetitions and too many heavy sentences and to obtain fluency, 'divorce law' will be
used for 'the existing grounds for divorce' and 'the procedure for obtaining a divorce', where
appropriate.
Where reference is made to family law this also covers divorce law in both countries.
Where quotation marks are used around 'grounds', 'grounds' refer to both the ground for divorce
and the five facts in England and to the grounds for divorce in Denmark. It is surprising that
Herring for instance despite his massive criticism of the existing English divorce law especially his
mention of the law's state of confusion as a result of the use of both 'grounds' and facts37, does
not always clearly distinguish between 'grounds' and facts himself38.
The two research areas, selected in an attempt to determine why the established differences exist,
the historical development of the divorce law and the legal systems of the two countries, referred
to in subchapter 1.2, will also be referred to as the historical development argument and the legal
system/culture argument, particularly in chapters 6 and 7.
Appendices
Appendices 1, 2 and 3 contain only the relevant sections of the MCA 1973 and the DACLFDM 2007.
Besides, appendices 2 and 3 do not list the sections according to numerical order but according to
relevance. As to appendix 4, since I had no access to add text in lawyer Jørgen U. Grønborg's
email, I have made a separate Word-document with selected answers and written my translation
below. However, the original email is attached as evidence.
37
38
Herring, Jonathan. op. cit., p. 115.
Ibid. p. 109.
15
2.
Theory
Subchapter 2.1 is concerned to go through the theory applicable when making a comparative
analysis, namely the comparative law theory39. As already mentioned, this study may be
categorised, to some degree, as an untraditional comparative analysis. Nonetheless, the
comparative law theory still applies.
2.1 The comparative law theory
As noted above, the theory applied in this thesis will be that of comparative law. Basically, this
theory can be contemplated as a hybrid. As a rule, it builds from five blocks each of which, for the
most part, consists of two principles/strategies from which the user must choose either the one or
the other. However, both strategies within a block may be applied in the same study. Each block
and its strategies must be considered before starting the comparative work.
First, the theory has two different aims. In its theoretical-descriptive form, the principal aim is to
say 'how' and 'why' certain legal systems and provisions are different or alike. The other form,
being the applied form, has the aim of suggesting how a specific problem can most appropriately
be solved under the given circumstances40.
Second, the comparative law theory offers two distinct approaches - the macro and
microcomparison approach. The macrocomparison compares the spirit and style of different legal
systems. The microcomparison, by contrast, deals with specific legal institutions or problems.
However, the dividing line between these two approaches is flexible as the line may be difficult to
draw41.
Third, yet another principle must be taken into consideration, namely the principle of functionality.
The principle departs from the idea that every society faces the same problems basically and
frequently solves these problems by quite different rules, though often with similar results. The
question posed when applying this principle is 'How a certain country/society solves this particular
problem?' The principle is often used, because law rules may not always be the appropriate point
of departure for a comparison of a given law of two or more countries since the rules of one legal
system may not always be transferrable to the legal system of the other country. It could also be
that the rules in question only exist in one of the two countries subject to comparison – and
therefore not functionally comparable42.
39'Comparative
law' is the comparison of the different legal systems of the world. Zweigert, Konrad. op. cit., p. 2. As outlined in the
problem statement of this study, the comparison here will be between England and Denmark within the areas mentioned.
40 Ibid.
41 Ibid. p. 5.
42
Lando, Ole. 2006. Kort indføring i komparativ ret. 2. udg. Jurist- og Økonomforbundet. pp. 181-183.
16
Fourth, the comparative law theory provides two different strategies of presenting foreign and
domestic law. The first one is the dynamic strategy43 that presents the development of the law
throughout time. The other one is the static strategy44 that presents the law at a given time, often
current law45.
Finally, the theory puts forward two methods of structure. The first method is called the
Länderbericht method46. It is normally used where a general comparison of legal rules is made. It is
also appropriate where the legal systems deviate significantly from each other within the area
subject to investigation. This method demands relatively much space, but gives the readership a
good overview in that it provides answers to a specific question within a given legal system in
relation to other questions within the same system. The other method is called the analytical
method47 and is primarily used where the legal systems of two or more countries subject to
comparison are very similar thus enabling the subject matter in question to be treated jointly for
the countries/legal systems in focus48.
In this study:
The theoretical-descriptive form will be applied as the aim is to investigate 'how' and in particular
'why' differences between the two selected areas of the divorce law in England and Denmark
exist.
The predominant approach will be that of microcomparison since this approach will be used on
the traditional comparative analysis carried out in chapters 4 and 5. However, the
macrocomparison approach will be applied in the chapter on the legal systems – subchapter 3.1 as well as in the chapter on the historical development of the divorce law in England and Denmark
– subchapters 3.3 and 3.4. As the dividing line between the two approaches is flexible, there will
be elements of the microcomparison approach in the two last-mentioned subchapters as well.
The principle of functionality will be used here in order to establish the differences of the two
countries' existing divorce law, which is regulated through legislation 49. However, since the
overriding question of this investigation is a 'why-question', namely 'Why do the established
differences, in substance and in tone, within the two selected areas of the divorce law exist?' the
principle of functionality may not be used to the same extent and in the exact same sense as is the
case with a traditional comparative analysis in which the main question is normally a 'howquestion'.
43
My translation.
My translation.
45 Ibid. p. 189.
46 My translation.
47 My translation.
48 Ibid. p. 188.
49 Boele-Woelki, Katharina. 2009. Debates in Family Law around the Globe at the Dawn of the 21st Century. Antwerp – Oxford –
New York: Intersentia. p. 48.
44
17
Furthermore, based on the purpose of this study and on the selected content of the chapters
chosen to answer the main question of this thesis, both the dynamic and static strategies will be
applied in chapters 3 and 4, respectively.
Since the English and Danish legal systems each belong to separate legal traditions 50, and the rules
and provisions within the two areas under investigation deviate markedly from each other, the
Länderbericht method will be applied in subchapters 3.3 and 3.4 and in chapter 4. However,
although the legal systems differ in the two countries, the structure that I have chosen for
subchapter 3.1, that is to compare the two legal systems' approach to a number of different
criteria, makes the application of the analytical method appropriate there. Based on the above,
the analytical method is also applied in both chapters 5 and 6.
50
See sub-chapters 1.2. and 3.1 and appropriate notes. See also notes 10, 13, 14 and 15.
18
3. A historical perspective
In this chapter, an investigation of two areas, viz., the legal system in England and Denmark –
subchapter 3.1, and the historical development of the divorce law in the two countries subchapters 3.3 and 3.4, will be carried out to produce the fundamental background knowledge
deemed necessary to answer the main question put forward in this study.
The first area – the legal systems – is concerned with the origins and distinguishing criteria of the
Common law and Civil law tradition and will be treated below in 3.1. The two legal systems will be
defined from a number of different criteria that shape most legal systems. It is thus from these
criteria that the two legal systems have gained their characteristics and from which they can and
will be defined below. At the end of this subchapter, an overview table of the key distinguishing
criteria is available. Subchapter 3.2 is concerned to give a sub conclusion of subchapter 3.1.
The second area – the historical development of the divorce law in England and Denmark – has
further been divided into two parts, one for each country, namely subchapter 3.3 the historical
development of the divorce law in England, and subchapter 3.4 the historical development of the
divorce law in Denmark.
3.1
The legal systems
Grasping a concept as complex as the characteristics of a legal system is a difficult matter.
Therefore, in an attempt to give the readership a foretaste of the complexity to come, I have
chosen to begin this subchapter with a quote by Lord Cooper, an eminent Scottish judge with
insight into both the Common and Civil law tradition, in which he identifies, by way of contrast,
some of the idiosyncrasies particular to each legal tradition. Thus, according to Lord Cooper:
"A Civil law system differs from a Common law system much as rationalism differs from
empiricism or deduction from induction. The Civil law lawyer naturally reasons from
principles to instances, the Common law lawyer from instances to principles. The Civil law
lawyer puts his faith in syllogisms, the Common law lawyer in precedents; the first silently
asking himself as each new problem arises, 'What should we do this time?' and the second
asking aloud in the same situation, 'What did we do last time?'... The instinct of a Civil law
lawyer is to systematise. The working rule of the Common law lawyer is 'solvitur
ambulando'51 (to solve a problem by a practical experiment).
As may be inferred from the above, a legal tradition is not a set of rules of law about contracts,
corporations and the like, although such rules will almost always be in some sense a reflection of
51
Zweigert, Konrad. op. cit., p. 259.
19
that tradition. A legal tradition is rather a set of deeply rooted, historically conditioned attitudes
about the nature of law, that is, how it should be made, applied, studied, exercised and taught52.
As mentioned in the introduction, Common law is the legal tradition that traces its origins back to
England in 1066, and to which the current English legal system adheres. Civil law, also called the
Romano-Germanic or European Continental law, is the legal tradition to which the Danish law
system is said to belong.
Despite the clear distinction that will follow below of the characteristics of the Common and Civil
law traditions, it should be mentioned that, at certain moments in time, both legal traditions have
influenced each other more or less. Although Canon law had an influence on both traditions
during Medieval Times, its influence was more distinct on the Common law tradition.
Furthermore, the Danish legal system was much more inspired by the particular German Civil law
tradition's elements of systematism and clear terminology than was the Common law tradition53.
3.1.1 Acceptance54 of the Civil law tradition
3.1.1.1 Common law tradition
From the very beginning, Common law was considered the pride of the English courts in London 55.
Common law had been developed in the hands of medieval judges who had travelled around the
country to establish customs and who were considered the servants of the Crown of England. But
around the 17th century, the courts detached themselves from the Crown, and they became an
independent institution ranking in many ways above both the English Parliament and the Crown.
With their independence thus being solidly manifested, it is hard to overestimate the strong
position that the English courts came to hold56.
If we go back to the French Revolution, one of its important consequences was the desire of many
Continental European countries to create a nation-state. But since the French Revolution only had
an evolutionary impact on England57, the country did not seem to have this need. England's
geographical position and the Englishman's traditional respect for law58 might have played a role
in the rejection of this need for a nation-state59. Instead, England saw its own Common law as a
positive force in the emergence of England. Common law was accepted and even glorified – and
52
Merryman, John Henry. op. cit., p. 2.
Tamm, Ditlev. 2009. op. cit., p. 78.
54 Merryman talks about 'Reception', Sundberg about 'Inspiration' of the Civil law tradition. Merryman, John Henry. op. cit., pp. 1012, and Sundberg, J.W.F. op. cit., p. 186.
55 Ibid. p. 194.
56 Ibid.
57 Merryman, John Henry. op. cit., p. 21.
58 Barker, David and Padfield, Colin. op. cit., p. 5.
59 Merryman, John Henry. op. cit., p. 21.
53
20
the English saw no need for codification60 to the extent that was seen among Civil law countries61.
In England, the fear of judicial lawmaking and of judicial interference in administration did hardly
exist and as a consequence, nor the need for a clear separation of governmental powers 62.
Another peculiarity of the Common law tradition was the English legal terminology. It was quite
unique as it was based on what is called Law French or Norman French. It was applied in the courtroom only and difficult to understand, and was in itself a factor that complicated things and made
Common law a closed system and comprehensible only to the adepts, and in that way nonreceptive to external influence63.
3.1.1.2 Civil law tradition
In countries based on the Civil law tradition, the fundamental thinking was that the separation of
governmental powers was very important. Therefore, immediately after the French Revolution the
judiciary was seen as a primary target of attack; a clear distinction between the legislative and the
executive, on the one hand, and the judiciary, on the other, was considered especially important
in order to avoid the abuse of power that was possible if no clear separation between making the
law and applying it was made64. The intellectual thinking that was a product of the French
Revolution had important consequences for the systematic and pragmatic organisation and
administration of the legal systems of Civil law countries as well as for their rules of substantive
and procedural law65. The creation of nation-states that took place among many Continental
European countries seemed to require a rejection of the old legal order and a vision of a world
properly organised with a view to legal matters. In Denmark, as in many other Continental
European countries, this was materialised in a hierarchical order of the legal sources with a written
constitution, the Danish Constitution of 184966 (Grundloven af 1849), prevailing over all other
legislation. Only the state had lawmaking power and only statutes enacted by the legislative
power could be law. Therefore, it was natural that new legal systems were codified 67. Although
Denmark to a very large extent did accept and receive most principles behind the main direction
of the Civil law tradition, Denmark did differ in some ways namely in that legal university studies
were not introduced in Denmark until the mid-18th century, which may explain the undogmatic
approach to law that is seen in Denmark68.
60
The enactment of a statute incorporating all previous statute law and case law on a particular subject. Codified law is often to be
understood as written law i.e. statute law or legislation which, by the way, is also often referred to as positive law, whereas judgemade law (case law) is often referred to as non-codified law and thus unwritten law. See also note 71.
61 Merryman, John Henry. op. cit., p. 21.
62 Ibid. p. 16.
63 Tamm, Ditlev. 2009. op. cit., p. 104.
64 Merryman, John Henry. op. cit., pp. 15-16.
65 Ibid. p. 15.
66 My translation.
67 Merryman, John Henry. op. cit., p. 21.
68 Tamm, Ditlev. 2009. op. cit., p. 78.
21
Compared with the language applied in the Common law tradition, Danish law was written in
Danish from an early stage and in an easily accessible language. Furthermore, Latin was the
language used at the universities teaching Civil law, and was thus understood all over Europe,
including Denmark69. This placed Denmark along with many other Continental European countries
in a position of being far more open-minded to and receptive of Civil law ideas than was the case
in England70.
3.1.2 The sources of law and the principles behind a legal decision
3.1.2.1 Common law tradition
As mentioned under point 3.1.1, non-codifying principles lay behind the unwritten71 Common law
which had been created, throughout time, by the judges. Therefore, Common law is also often
referred to as judge-made law or case-law in contrast to statute law, legislation or positive law.
The Legal Rule72, that is to say, the principles of Common law, is to be found in and retrieved from
case-law. And the decisions made in these cases by the judges are found in law reports73.
The traditional English interpretation of legislation concentrates upon the wording of the statutes
and their very narrow interpretation74. The reason for this approach is primarily to be found in the
Common law thinking, in which the decisive element of a legal decision is the facts. And it is by
comparing the facts found in several cases that the courts establish the Legal Rule. The Legal Rule
is thus closely attached to the case to which it has been applied, and therefore can only be
understood when the actual circumstances of the case are being considered. As a consequence, to
the Common law lawyer, the rule is a rule of itself only when it has been interpreted by the
courts75. The judges are thus reasoning closely from case to case and thereby building a body of
law that binds subsequent judges through the familiar Common law doctrine of stare decisis (to
stand by past decisions)76. It is often unclear exactly what the ratio decidendi (the court's reason
for its decision)77 of a preceding case covers – and, as pointed out above, often more cases must
be studied to establish the Legal Rule. This uncertainty of the ratio decidendi places the judges in a
69
Ibid. p. 104.
Merryman, John Henry. op. cit., p. 10.
71 Common law has indeed been recorded, preserved and explained in written form in law reports. The reason why it is still being
referred to as 'unwritten' law is because 'written' law is to be interpreted as enacted or codified law, and Common law rules have
not been codified to the same extent as Civil law rules. Shears, P. And Stephenson, G. op. cit., p. 6.
72 The Legal Rule consists only of what can be retrieved from the ratio decidendi i.e. the judge's reason for his decision of a case.
Ratio decidendi must be distinguished from what is called obiter dicta which means the words delivered by the judge, but which are
NOT essential to his decision. Barker, David and Padfield, Colin. op. cit., p. 23.
73 Ibid. p. 23.
74 Tamm, Ditlev. 2009. op. cit., p. 111.
75 Lando, Ole. op. cit., p. 94.
76 The doctrine of stare decisis means that the courts have the power and are obliged to base their decisions on prior decisions
declared by superior courts i.e. to decide similar cases similarly or, in other words, to use the binding force of precedent.
Merryman, John Henry. op. cit., p. 34.
77 See note 72.
70
22
very flexible position when deciding a case78. As a logical consequence, the doctrine of stare
decisis limits the scope of the Legal Rule significantly, because an English judge is, roughly
speaking, required to look back and think in practical terms every time he is to decide a case. In
Common law, certainty and flexibility are seen as competing values. Certainty is warranted in
situations in which a precedent exists. Where this is not the case, uncertainty prevails and makes
room for flexibility79.
Traditionally, English judges are critical of the interference by the legislators with the Common
law, and, as already noted, they therefore have a distinct tendency towards a narrow
interpretation of statutes80. Similarly, as a rule until recently, they were not and are still not always
allowed to include Parliament's preparatory work, the so-called Hansard81, in order to find help
and guidance whenever he has to decide a case82. Therefore, the judges demand that the
legislators express themselves clearly when writing a legal document, because the judges attach
almost all importance to the formulation of the document83, the so-called 'Literal Rule' that lays
down that words must be given their literal grammatical meaning84. For some time now, however,
English judges have adopted a more liberal attitude to the wording and pay more attention to the
purpose and intent of the legislation85.
Likewise, the ultimate legislator in England, today, is Parliament86. But although modern law in
England is predominantly legislative in origin, Common law is nevertheless a major source of law,
and many Englishmen still think of legislation as having only a kind of supplementary function to
Common law87. It has always been the fundamental rule that the English courts have been
unwilling to develop the law on the basis of written statutes and thus, have refused to extend
them by giving them a broad interpretation88. As a consequence, much law in England has still not
been codified and therefore are to be found in law reports, just as England has no written
constitution as it is also to be found in the unwritten Common law89. Therefore, Common law
thought still exerts fundamental influence in most jurisdictions in England as well as continues to
overshadow the way the English teach, write and think about law90.
78
Lando, Ole. op. cit., p. 97.
Merryman, John Henry. op. cit., p. 49.
80 Lando, Ole. op. cit., p. 92.
81 The name of the Official Report of Parliamentary Debates. The Hansard may clarify obscure and ambiguous legislation. This
prohibition against reference to Hansard is expressed in The Exclusionary Rule. In 1992, however, the House of Lords decided to
limit the use of this rule due to Britain's entry into the EU. Ibid. p. 92.
82 Ibid. p. 92.
83 Tamm, Ditlev. 2009. op. cit., p.109.
84 Barker, David and Padfield, Colin. op. cit., p. 33.
85 Lando, Ole. op. cit., p. 94.
86 Ibid. p. 92.
87 Ibid.
88 Ibid.
89 Merryman, John Henry. op. cit., pp. 24-25.
90 Cotterrell, Roger. 1989. The Politics of Jurisprudence. London and Edinburgh: Butterworths. p. 21.
79
23
3.1.2.2 Civil law tradition
In the Civil law tradition, legislation i.e. codified law, is the main source of law in most Continental
European countries, including Denmark91. Hence, the Common law doctrine of stare decisis is
obviously inconsistent with the separation of powers as formulated in Civil law countries, and is
therefore rejected by the Civil law tradition since judge-made decisions are not considered to be
law, as the function of the judge is solely to interpret and to apply 'the law' as it has been defined
by the legislators92. Although the Civil law judges do attach importance to precedents, they do not
show these the same respect as do the Common law judges93. This reluctant attitude toward
precedents has been adopted in an attempt not to stall the development of the society by
attaching an unconditionally binding effect on previous decisions94. In Denmark, judges have been
forced to look at the development of society before making a decision e.g. within the field of
divorce law95. The fundamental doctrine of the Civil law tradition thus establishes that a decision
made by Danish judges must be based on legal principles set out in statutes. In that way, a law rule
that is intended to embrace future situations is made and as a consequent formulated in general
terms. The Danish judges are thus expected to look forward and think in abstract, academic and
theoretical terms96. To understand the legislation, the judges are often required to consult the
preparatory work of a statute published by the Danish parliament (Folketinget) 97. In the Civil law
tradition, there is great emphasis on the importance of certainty in law98. Consequently, judges
are, as already mentioned, prohibited from making law as the law rule or the legal principles from
which the judges are to work should be clear, complete and coherent in the interest of certainty 99.
In this sense, the emphasis on certainty is an expression of a desire to ensure that the judges do
not interfere with the law. Hence, the discretionary power is far less exercised by the Civil law
judges compared with the Common law judges, as it is seen as a threat to certainty100.
91
Lando, Ole. op. cit., p. 91.
Merryman, John Henry. op. cit., pp. 22-23.
93 Lando, Ole. op. cit., p. 97, and Dübeck, Inger. op. cit., p. 21.
94 Lando, Ole. op. cit., p. 95.
95 Dübeck, Inger. op. cit., p. 21.
96 Lando, Ole. op. cit., p. 95.
97 Ibid. p. 94.
98 Merryman, John Henry. op. cit., p. 49.
99 Ibid. p. 48.
100 Ibid. pp. 48-49.
92
24
3.1.3 Procedure, judges and lawyers and their educational background
3.1.3.1 Common law tradition
From the beginning, the Common law procedure was built on the so-called rigid system of writs101
which was a characteristic procedural system including juries and a strict centralisation of the
royal courts in which a person has no right without a cause of action which required the existence
of a wrong102. The system, however, was abolished by the Law Reform Act 1873. This Act
constituted a decisive change of direction in English law away from procedural rights (form) to
more substantive rights (content). However, to understand the Common law system, it is
important to know that it is deeply rooted in procedural rules despite the changes103. And as
Legrand observes, the absence of a culture of right unless justified by a cause of action suffuses
the whole of English legal life104.
It is the general opinion that in the procedural system of the Common law tradition lawyers105 will
be carefully prepared for a case whereas the judges will have only a vague idea of what the issues
and testimony may be. Hence, the judges are supposed to rely on the lawyers to present all the
necessary facts. To this end, the judges take up a relatively passive position in so far as they must
learn about the case as it proceeds. The reason for giving the leading role to the parties and their
lawyers has to do with certain deeply held views about the best way to get at the truth in the
course of a court hearing namely, by use of the so-called 'adversary procedure106' that the English
Common lawyers consider as the ruling principle of procedural law, expressed very clearly in the
following statement: ' In litigation as in war'107. However, as noted in the beginning of the chapter,
it must be underlined that in matrimonial matters, the inquisitorial procedure108 is used due to the
strong influence of Canon law on the Common law tradition in Medieval England.
Since the English judges, through the doctrine of stare decisis, have the power to make new law,
their position in the legal system is central. Judges thus exercise very broad interpretative powers,
101
The system in which a legal document, a writ, was issued by a court to originate some legal actions. It was said that for every
civil wrong there was a separate writ. However, the number of writs was limited, and if the wrong writ had been chosen, the case
was lost. In addition, each writ had its own special rules of procedure. Zweigert, Konrad. op. cit., p. 185.
102 Legrand, P. (1996). European Legal Systems Are Not Converging. International and Comparative law Quarterly, (45), p. 70.
103 Tamm, Ditlev. 2009. op. cit., pp. 100 and 114.
104 Legrand, P. op. cit., p. 71.
105 Here the term covers both barristers and solicitors. England and Wales has what could be characterized as a dual or split legal
profession in relation to legal representation where two different types of lawyers are found: barristers and solicitors. Essentially,
barristers are the lawyers who represent litigants as their advocate before the courts. They speak in court and present the case
before a judge or jury. Barristers are also engaged by solicitors to provide specialist advice on points of law. Barristers are rarely
instructed by clients directly. Instead, the client's solicitor will instruct a barrister on behalf of the client. In contrast, solicitors
generally engage in preparatory work and advice, such as drafting and reviewing legal documents, dealing with and receiving
instructions from the client, preparing evidence, and managing the day-to-day administration of a case. This duality of function
between barristers and solicitors is particular to English Common law. Shears, P. And Stephenson, G. op. cit., p. 51.
106 In law, the 'adversary procedure' is one of two methods of exposing evidence in court. It requires the opposing sides to bring out
pertinent information. The other method is the 'inquisitional procedure' during which the case is under the control of the judge
whose responsibilities include the investigation of all aspects of the case. Zweigert, Konrad. op. cit., pp. 272-273. See also notes 150
and 151.
107 Ibid. pp. 272-273.
108 See note 151.
25
even where the applicable statute or administrative action is found to be legally valid. Decisions
are made by named judges, who speak as human beings, and who try to convince the public and
give reasons for their choice of precedent in an attempt to demonstrate the law's claims of
legitimacy and authority109. In the Common law world, judges are seen as an authority figure, and
the court proceeding is permeated by a moralistic flavour110. As, it is argued, legal evolution is still
largely seen the way the judge sees it, it is not surprising that a dominating position is easily given
to procedural law, because many judges have no other perspective to apply111.
Previously, the legal training of Common law judges took place in the courts - the so-called Inns of
Court112 - and only to a limited extent at universities. Today, the training is still attached to the
courts, but some kind of legal university degree is, however, presupposed. Therefore, it seems
correct to state that Common law is predominantly controlled by legal practitioners. Nevertheless,
the tradition of scholars i.e. law professors as an important force in the development of Common
law is catching on, but still very recent and relatively weak113.
3.1.3.2 Civil law tradition
By contrast, the Civil law procedure is based rather on the idea that it will be easier to get at the
truth if the judge is given a stronger role. This implies that he should be entitled to ask questions,
inform, encourage and advice the parties, the lawyers and witnesses114.
In the tradition of Civil law, the judge is something entirely different from the judge found in the
Common law system. He is a civil servant - a functionary – educated to hold positions in public
life115. According to Sundberg, with this background, the Civil law judge is inclined to view the legal
process as part of a greater societal process116. His decisions are formulated in an impersonal style
and in courts sitting with more judges, only the opinion of the majority is made official in line with
the Civil law maxim that people need to hear 'the law' which cannot speak with more than one
voice117. The image of a judge is that of an operator of the law which is designed and built by
legislators118. This means that the judge is presented with a fact situation to which a legislative
answer will normally be readily found. The judges' function is then to find the right legislative
109
Lando, Ole. op. cit., p. 98.
Merryman, John Henry. op. cit., p. 123.
111 Sundberg, Jacob. W.F. op. cit., pp. 195-196.
112 These Inns of Court are of medieval origin. They were established by jurists who organised themselves in a kind of guild and
exercised very great political influence. The future lawyer learnt his law by practical and empirical training taught during lectures
given by more experienced practitioners. Zweigert, Konrad. op. cit., p. 191.
113 Merryman, John Henry. op. cit., p. 57.
114 Zweigert, Konrad. op. cit., p. 273.
115 Merryman, John Henry. op. cit., p. 35.
116 Sundberg, Jacob. W.F. op. cit., p. 193.
117 Lando, Ole. op. cit., p. 98.
118 Merryman, John Henry. op. cit., p. 36.
110
26
provision, connect it with the fact situation, and approve the solution that is more or less
automatically produced from this connection119.
Contrary to the Common law tradition, the great names of the Civil law are not those of judges,
but those of legislators120. The Civil law is the law of professors, and the statutes are expressed in a
considerably clearer, more comprehensible, and shorter form than those prepared in the English
Common law system. The Civil law lawyer approaches legislation broadly, looks at the intent,
purpose or scheme of it121 and attach far more importance to substantive rules i.e. rights and
obligations than to procedural rules122.
119
Ibid. p. 36.
Ibid.
121 Shears, P. And Stephenson, G. op. cit., p. 13.
122 Lando, Ole. op. cit., p. 99.
120
27
Table 3.1 Overview table of the distinguishing criteria characterising the Common and Civil law
tradition123
Common law
Civil law
Character of the law
Pragmatic/forensic and unsystematic
Academic/theoretical and systematic
Legal principles to be found in
Law reports
Textbooks/Legislation
Character of court-room practice
'Adversary' ('inquisitorial' in family matters)
'Inquisitorial'
Educational background of judges
Practical (in the courts)
Academic (at universities)
Constitution
Unwritten
Written
The law is mainly built up by
Case-law
Legislation
Law-making power lies to a large extent with
Judges
The State/Legislators
Image of the judge
Authoritative figure
Civil servant/Functionary
Formulation of Statute law/Legislation
Complex, long and exact
Short, complete and clear
Accessibility of legal principles
Difficult
Easy
Procedural law
High
Low
Substantive law
Low
High
Wording of legal text
High
Low
Rule of Precedent
High
Low
Role of judges
High
Low
Codification
Low
High
Certainty in law
Low (as certainty competes with flexibility)
High
Discretionary power of judges
High
Low
Degree of importance attached to:
123
My production.
28
3.2
Sub conclusion
From the discussion in subchapter 3.1, it seems obvious that the Common and Civil law traditions
have departed and developed from very different platforms. Contrary to the Civil law tradition, in
the Common law tradition, law is primarily judge-made, the rule of precedent is prevalent, and the
judges have broad interpretative and discretionary power, possess a moralistic attitude and a
central position in the legal system for example.
On the other hand, what also seems to be obvious is that the two traditions have converged to
some degree in a number of fields e.g. within the field of precedent. According to Merryman, it is
a well-known fact that Civil law judges do use precedents where statutes are too broadly
formulated just as it is well-known that Common law judges distinguish cases they do not want to
follow, and sometimes overrule their own decisions where these would produce a result in conflict
with prevailing social circumstances or the public order124. Another example can be found within
the field of codification in which the Common law tradition, for some time, has recognised the
need to bring the judge-made rules into a systematic order by way of scholarly discussion and
legislative action to make the rules easier to understand.
Nevertheless, despite the fact that the two traditions have approached each other over the years,
it seems safe to conclude that fundamental differences still exist between them125. This is also
unequivocally expressed by Legrand who claims that there exists a Common and a Civil law legal
culture126 also referred to as the Common and Civil law legal mentality that represents two
different ways of thinking about the law and its role in society127. Friedman also tends to believe
that each country in general has its unique particular legal culture 128.
Finally, it appears that not only do the two traditions differ with regard to the different criteria
characterising them, it also seems that the Civil law tradition is better prepared for future
development of the law as a consequence of the thinking and mentality behind it. As Merryman
points out, the law of international organisations and international law are the work of people
trained in the Civil law tradition129. Conversely, England has more than any other country been
more consciously connected to their past and also more attached to traditional forms of legal
thinking despite social and economic change, according to Zweigert130.
124
Merryman, John Henry. op. cit., p. 47.
Zweigert, Konrad. op. cit., p. 271.
126 'Legal culture' is defined by L. Friedman as 'ideas, attitudes, values and opinions about law, the legal system, and legal
institutions of some given population'. L. Friedman. 1990. 'Some Thoughts on Comparative Legal Culture', in D. Clark (ed.),
Comparative and Private International Law. Essays in Honour of J. H. Merryman on his Seventieth Birthday. p. 53.
127 Legrand, P. op. cit., p. 62.
128 Friedman, L. 1975. The Legal System: A Social Science Perspective. New York: Russell Sage Foundation, p. 199.
129 Merryman, John Henry. op. cit., p. 3.
130 Zweigert, Konrad. op. cit., p. 181.
125
29
3.3
The historical development of the divorce law in England
In the following subchapter, the historical development of the English divorce law will be outlined.
To provide a structured overview, I have divided this subchapter into time periods centring
primarily on the revisions of the English divorce law. At the end of this subchapter, an overview
table is available. Finally, a sub conclusion on this subchapter together with that of 3.4 – The
historical development of the divorce law in Denmark - can be found in subchapter 3.5.
3.3.1 From 1500 to 1857 – from divorceless society to divorce by
Private Act of Parliament
From the early modern period, i.e. just before the Reformation in the 16th century England
approximately, and until 1857 the courts, the so-called ecclesiastical courts131, had no jurisdiction
to grant decrees of divorce132. In the eye of the law – Church law, so to speak – England was
considered a 'divorceless' society.
The Reformation, however, changed, among other things, the English society's conception of
divorce in many ways, and the past's dogmatic view on divorces was slowly declining133.
By the 18th century, ways of dissolving a marriage had come into existence. However, the only way
that also allowed remarriage was the so-called Private Act of Parliament procedure. The only
acceptable ground for divorce according to this procedure was adultery, because it was acceptable
to the Church as a result of biblical precedent for it134. But before the grant of such a Private Act of
Parliament was possible, the petitioner had to obtain a divorce a mensa et thoro135 from an
ecclesiastical court. It was thus a complex and expensive procedure and therefore only available to
the rich and powerful, mostly men136. Bars to divorce by this procedure were the petitioner's own
adultery, connivance, condonation or collusion. In the very rare cases in which a wife petitioned
for divorce through a Private Act of Parliament, she had to prove, unlike husbands, 'aggravating
circumstances' such as bigamy or incest on the part of the husband137. Both the Private Act of
131 Also
called 'Court Christian' or 'Court Spiritual' is any of certain courts having jurisdiction mainly in spiritual or religious matters.
They were experts in interpreting Canon law (church law). http://en.wikipedia.org/wiki/Ecclesiastical_court.
132 Standley, Kate. op. cit., p. 146.
133 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 161.
134 Ibid.
135 A divorce' a mensa et thoro' is Latin and means 'from table and bed', although it is often translated into 'from bed and board'. In
the eye of the law, it referred to a type of divorce in which the couple was relieved from their obligation to live together, but the
marriage was still considered valid and therefore the spouses were not allowed to remarry.
Separation 'a mensa et thoro' is also sometimes used by authors treating this subject. Cretney also refers to it as 'the living death of
separation'. Ibid. p. 201.
136 Stone, Lawrence. op. cit., p. 141.
137 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 161.
30
Parliament procedure and divorce a mensa et thoro involved litigation and were based on the socalled fault-based principle138.
As can be seen from the short description outlining the possibilities of obtaining a 'divorce' from
the period around the Reformation and until 1857, the Private Act of Parliament procedure
created a so-called 'double legal system' – a matrimonial law for the rich and another for the
poor- that made divorce seem a remedy available only to the privileged few. This imbalance
created a widespread situation of 'illicit cohabitations139'. By the 1840s, this situation along with
the injustice of the 'double sexual standard' (that wifes had to establish aggravating
circumstances) became an issue of concern to proponents of divorce reform140. It was this
recognition of specific legal deficiencies and injustices, together with the secularization of control
over matrimonial affairs, starting with Parliamentary control over the law of marriage in 1753,
which slowly paved the way for a liberalization and reform of the English law on divorce by
1857141. But in spite of the reformers' deep felt urge to have something done about the chaotic
situation and the injustices and inappropriateness attached to the Private Act of Parliament
procedure the latter was applied for very many years and represented a long transitional period
with little campaigning among legislators for change142.
3.3.2 From 1857 to 1923 – from judicial divorce toward elimination of
the 'double sexual standard'
Despite the cautious and relatively slow approach by the English legislators on divorce reform, the
Matrimonial Causes Act 1857 (MCA 1857) was passed after all in 1857 permitting judicial divorce.
The Act modernised the law on divorce by moving litigation from the jurisdiction of the
ecclesiastical courts to the civil courts, that is to say the Court for Divorce and Matrimonial Causes
in London (CDMC) which had jurisdiction to grant decrees of judicial divorce and judicial
separation143. This widened, at least in theory, the availability of divorce beyond the privileged few
as well as increased to some degree the efficiency of the court system144. Nevertheless, it left the
lower middle class and the poor even worse off than before the establishment of this court in
terms of access to the law, because now they had to travel to London to have their case heard,
138
The principle requires that the petitioner proves a matrimonial offence – a marital wrong – committed by the respondent.
Standley, Kate. op. cit., p. 147.
139 Refers to a condition where a man and a woman who are not married to one another live together. However, often, they were
both married already, but since the law did not allow divorce, the only way from which they could escape an existing marriage and
enter into a 'new marriage' was by establishing an 'illicit cohabitation'. Stone, Lawrence. op. cit., p. 398. Cretney refers to 'illicit
unions'. Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 338.
140 Ibid. p. 168.
141 Stone, Lawrence. op. cit., pp. 366-368.
142 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 202.
143 'Judicial separation' was just another name for 'divorce a mensa et thoro'. 'Judicial separation' is regulated by s 17 of the existing
divorce law, the MCA 1973. Cretney, Stephen. 2003. Principles of Family Law. 7th ed. London: Thomson. p. 311.
144 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 163.
31
which was fairly expensive145. True, the Act was the first significant change in English divorce law
since the 16th century, but all it did was to alter the procedure for obtaining divorce; no new
principles were introduced146. And as such, the new Act continued the restrictive maxim of earlier
times' divorce policy. Adultery and 'aggravated adultery'147 were still the only grounds for divorce,
and the 'double sexual standard' also remained part of the Act. The petitioner also had to prove
that he was free from guilt, and bars such as condonation, connivance or collusion still applied148.
Hence, the theological dogma about the indissolubility of marriage was still widely accepted
among opponents of reform such as the Church of England and many members of the
conservative Palmerston government. To virtually all these opponents, the poor were seen as a
threatening, immoral mass of people to whom it would be extremely dangerous to extend the
facility of easy divorce since the English state had a vital interest in saving marriage149. From that
perspective, marriage could in no way be conceived a contract between one man and one woman
with the right to terminate this contract, and, therefore, the newly created CDMC was given a
distinctive role in that it should not adopt the accusatorial150 system of justice of the Common law,
but was to adapt the inquisitorial151 approach of the old ecclesiastical courts allowing the judges
wide discretionary powers152.
Although the period between the 1850s and the 1900s was a time of incipient disintegration in
which the old religious beliefs and conservative positions on divorce were gradually replaced by
new ones influenced by an increasing belief in further secularism and individualism153, the
predominant tendency was still for both reformers and opponents of divorce to anchor their
conviction and interests in religious beliefs154.
However, in 1909, in an attempt to remedy the inadequacies of and the growing dissatisfaction
with the substantive as well as the procedural law, a Royal Commission on divorce was appointed
by the government155. The proposals made by the Royal Commission were not adopted, because
the commissioners, who were split into reformists and non-reformists, could not reach
agreement156. Nevertheless, the rather reformist proposals made by the reformist group of the
145
Cretney, Stephen. 2003. Principles of Family Law. op. cit., p. 270, and Standley, Kate. op.cit., p. 146.
Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., pp. 165-166.
147 For example, incestuous adultery, adultery and bigamy, or desertion for two years or more – very similar to the definition of
'aggravating circumstances' applicable before the passage of the MCA 1857.
148 Cretney, Stephen. 2003. Principles of Family Law. op. cit., p. 270.
149 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 176.
150 This approach implied that the court's function was to listen to the evidence which the parties chose to put before it and decide
the case solely on the basis of that evidence. Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 177. Almost
similar to the 'adversary procedure'. See also sub chapter 3.1, note 106.
151 This approach implied that the court's function was to be actively involved in determining the facts of the case by making
detailed inquiries into the parties' private lives. http://webcache.googleusercontent.com/search?q=cache:Ujau3ojZI0J:en.wikipedia.org/wiki/Inquisitorial_system+%22inquisistional+procedure%22&cd=1&hl=da&ct=clnk&gl=dk See also sub
chapter 3.1, note 108.
152 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., pp. 177 and 178.
153 Stone, Lawrence. op.cit. pp. 389-392.
154 Phillips, Roderick. op. cit., p. 461.
155 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 209.
156 Ibid. pp. 213-214.
146
32
Royal Commission, such as the elimination of the discriminatory principles of the 'double sexual
standard' for instance, did set the agenda for a debate on the divorce law, which was continuously
referred to as misleading and confusing. The debate lasted, with more or less intensity, for the
coming sixty years.157
3.3.3 From 1923 to 1937 – from elimination of the 'double sexual
standard' toward the first extension of the grounds for divorce
Eventually, in 1923, after pressure for reform by several female movements, and on the basis of
the recommendations of the Royal Commission appointed in 1909, a bill was passed granting
equality of access by wives to divorce on the grounds of the adultery of their husbands158.
Although the numbers of divorces had risen quite significantly in the aftermath of World War I, the
growth of divorces had not yet become large enough to disrupt family life and stability 159. Equally,
the scale of divorces was held back by the cost and complexity of litigation and the shortage of
judges as the MCA 1857 required three judges to deal with divorce cases160. Since the passing of
the Act, the court structure had developed without a rational plan, and the question of extending
jurisdiction to grant divorce to more accessible courts than the CDMC in London became
interlinked with the question of the ground for divorce and was treated with little importance161
and therefore remained unchanged, practically, until 1937162.
Thus, not many attempts at reforms were made under the conservative government from 1924 to
1929. But even after the Labour victory in 1929, this government was also reluctant to implement
reforms of the divorce law163. Therefore, after the amendments made in 1923, it was not until
1937 that a general revision of the divorce law took place164.
A decisive factor leading to the general revision in 1937 was the 1930s' so-called collusive
agreements which were also known as the 'hotel bill cases' serving as evidence to the wife of her
husband's adultery with an unknown woman in a hotel165. The increase of this practice was to a
high degree due to the many broken marriages as a consequence of World War I. Furthermore, it
was argued by non-reformists, that the abolition of the 'double sexual standard' had made it easy
for the rich to benefit from the practice of collusive agreements in that they could afford to pay for
157
Stone, Lawrence. op.cit., p. 392, and Phillips, Roderick. op. cit., p. 470.
Standley, Kate. op. cit., p. 146.
159 Stone, Lawrence. op.cit. p. 397.
160 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 191.
161 Ibid. p. 201.
162 Stone, Lawrence. op.cit. p. 397.
163 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., pp. 225-227.
164 Phillips, Roderick. op. cit., p. 526.
165 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 176.
158
33
these 'hotel bills', and in that way obtain a divorce by mutual consent166. Therefore, in order to
restrain the number of collusive agreements, attempts were made by reformists to finally have the
grounds for divorce extended.
3.3.4 From 1937 to 1969 – from the first extension of the grounds for
divorce toward one sole ground and the decline of the
matrimonial offence doctrine
The 1937 Act extended the grounds for divorce beyond adultery for the first time. Three years'
desertion, cruelty, and prolonged incurable insanity were now included as grounds for divorce167.
These extensions were nevertheless accompanied by some new restrictions to satisfy the
opponents of divorce reform and to assert the state's interest in preserving the stability of
marriage168. Notably the restriction stipulating that, except in cases of extreme hardship or
depravation, no petition for divorce could be filed during the first three years of marriage169.
Divorce thus continued to require proof of a matrimonial offence, except in cases of incurable
insanity. This no-fault-based ground170 was of particular significance, because, for the first time,
the law recognised that divorced could be obtained without committing a wrong171.
Although, the 1937 Act was to some extent historical, it did not alter the fact that obtaining a
divorce decree was often an intimidating legal process with a high degree of formality172. The
presentation of all kinds of documents containing evidence of guilt, except for incurable insanity,
was still required by the courts especially to establish 'constructive desertion'173, cruelty and
where the allegations were defended174. A too liberal interpretation of these allegations, it was
feared, could lead to the creation of a new ground for divorce, namely 'mere incompatibility of
temperament and unhappiness', which was not prescribed by statute175.
World War II, just as it had been seen after World War I, and the extension of the grounds for
divorce in the 1937 Act resulted in an increased demand for divorce176. This created a nearly
unmanageable situation to the courts in administrating the law. To cope with this overload, many
166
Stone, Lawrence. op.cit., p. 396-397.
Cretney, Stephen. 2003. Principles of Family Law. op. cit., p. 270.
168 Cretney, Stephen. 1992. op. cit., p. 37.
169 Standley, Kate. op. cit., p. 146.
170 The essence of this principle is, contrary to a fault-based ground, that it does not attribute fault and does not require one of the
spouses to be considered innocent and the other guilty. Ibid. p. 147.
171 Ibid. p. 146. According to Cretney, this ground could be seen as a serious inroad made into the offence principle. Cretney,
Stephen. 2003. Principles of Family Law. op. cit., p. 271.
172 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 252.
173If one spouse had behaved in a way that made it 'unbearable' for the other spouse to stay, this first spouse could be said to have
constructively deserted the other. Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., pp. 260-261.
174 Ibid. p. 254.
175 Ibid. pp. 252-269.
176 Cretney, Stephen. 2003. Principles of Family Law. op. cit., p. 272.
167
34
divorce cases were handled by county court judges acting as Special Commissioners in Divorce in
the CDMC in London. In that way, the principle that divorce should be a matter for the Court for
Divorce and Matrimonial Causes in London only was upheld177. This led to a lack of consistency in
the courts' decisions, because the county court judges were inexperienced in hearing divorce
cases. The result was a greater acceptance of allowing spouses a divorce where the marriage in
fact did no longer exist. In these circumstances, the question of guilt and innocence slowly became
of less importance to the courts178. However, in spite of this rather permissive development of the
law, compared to the 1857 Act, it still caused difficulty. If the 'innocent' spouse refused to petition
for divorce, and did not commit any matrimonial offence, the marriage would remain legally in
existence until one of or both spouses died179. To deal with these inadequacies and the growing
dissatisfaction with the law, in 1956, another Royal Commission was appointed to look at
divorce180.
Over the years it had become increasingly recognised that hearing divorces in open court was not
just distressing for the parties but also expensive and time-consuming. To help ease the burden
imposed on the courts, and to further a less distressful and humiliating divorce process, the
reformist group of the 1956 Royal Commission opted for a future divorce law to be based on the
no-fault principle. The non-reformist group of the Royal Commission strongly opposed that,
because it feared it would be contrary to the interests of the state that still, less urgently however,
encouraged stable marriages181.
Once again, the members of this Royal Commission were divided and did not succeed in putting
forward proposals for radical reforms. The majority of the Commissioners believed that the
function of the 1937 Act was still to give relief where a wrong had been committed, not to provide
a dignified and honourable means of release from a broken marriage and thereby enable 'the
empty shell of marriage'182 to be destroyed183. This failure to reach an agreement among the
Commissioners was a considerable set-back for the proponents of reform. Although the
Commission's report never materialised into legal rules, the debate on divorce nonetheless
continued184, and the question whether the law should continue to disallow divorce except in case
of a proven matrimonial fault remained highly controversial185 .
Despite a still more liberalistic position among ecclesiastics on divorce issues in the 1960s, it was
nevertheless rather surprising that one of the two reports that today are regarded as the
forerunners of the Divorce Reform Act 1969 was produced by a committee set up by the
177
Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 286.
Cretney, Stephen. 2003. Principles of Family Law .op. cit., p. 272.
179 Ibid.
180 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 330 and Standley, Kate. op.cit., p. 147.
181 Stone, Lawrence. op.cit., p. 405.
182 Cretney, Stephen. 2003. Principles of Family Law. op. cit., p. 274.
183 Ibid. pp. 271-273.
184 Standley, Kate. op.cit. p. 147.
185 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 319.
178
35
Archbishop of Canterbury (consisting primarily of ecclesiastics) in 1966186 187. The other report188
was prepared by the Law Commission (an overweight of the members were judges)189 of 1966.
Both groups agreed that 'irretrievable breakdown of marriage' should be the sole no-fault-based
ground for divorce. However, the Archbishop's group required that the court was allowed a
detailed inquest into the causes of the irretrievable breakdown of marriage. This practice would
increase the workload imposed on the courts, and in that way the Archbishop's group's proposed
changes with regard to substantive divorce law became dependent on changes to the procedural
law190. The Law Commission, on the other hand, wanted to abolish the inquisitorial procedure.
Instead, the breakdown of marriage should be inferred by one or more of five facts, which should,
nevertheless, be inquired into by the courts. The first three facts were fault-based and very similar
to the traditional matrimonial offences. The last two were no-fault-based namely, two years'
separation with consent or five years' separation if there was no consent191.
After discussions between the Law Commission and the Archbishop's group a compromise was
finally reached which created the basis for the eventual enactment of the Divorce Reform Act
1969192.
With the huge increase in the divorce rate, particularly after the introduction of the Divorce
Reform Act 1969, the courts became overloaded, because they were still required to inquire into
the facts alleged193. Therefore, to achieve simplicity, speed and economy the 'special procedure'194
was introduced to undefended divorce cases of childless couples in 1973. In 1977, it was extended
to all undefended divorces195.
The Divorce Reform Act came into force in January 1971 and was later re-enacted as Part I of the
MCA 1973 which is the existing law governing 'the grounds for divorce' today. The current rules
governing 'the procedure for obtaining a divorce' are the Family Proceedings Rules 1991196.
In the Law Commission's report it was said that the aim of the MCA 1973 should be to 'buttress
rather than undermine the stability of marriage' and to move away from fault197. Over the years
the dissatisfaction with the Act increased, because the aim was not achieved, and still isn't, as
186
Ibid. p. 354.
The report is entitled 'Putting Asunder'. Herring, Jonathan. op.cit., p.107, and Rodgers, M.E. op. cit., p. 36.
188 The report is entitled: 'Reform of the Grounds for Divorce: The Field of Choice'. Herring, Jonathan. op.cit., p.107, and Rodgers,
M.E. op. cit., p. 36.
189 The function of a Law Commission is ...'to take and keep under review all the law ... with a view to its systematic development
and reform...' (Law Commission Act 1965 s. 3). Zweigert, Konrad. op.cit., p. 211.
190 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 356.
191 Cretney, Stephen. 1992. op.cit., p. 32.
192 Glendon, Mary Ann. op.cit., p. 152.
193 Standley, Kate. op.cit., p. 149.
194 Under the 'special procedure' the petitioner simply needs to lodge at the court the petition outlining the grounds for divorce. If
the petitioner satisfies the court in all matters, the judge pronounces a decree in open court, although the parties are not normally
present. Hence, an undefended divorce is obtained by way of what is essentially an administrative procedure. Herring, Jonathan.
op.cit., p. 109. For further details, see subchapter 4.2.
195 Cretney, Stephen. 1992. op.cit., p. 33.
196 Standley, Kate. op.cit., pp. 148, 154 and 155.
197 Bird, Roger and Cretney, Stephen. 1996. Divorce. The New Law. The Family Law Act 1996. Bristol: Family Law, p. 4.
187
36
most divorces are sought on the basis of adultery or behaviour198. This preserves an atmosphere
of hostility as the spouses are often forced to take on an adversarial approach199. Therefore, in
1996, attempts at reform were made by introducing the Family Law Act 1996 (FLA 1996). The
intention of the FLA 1996 was to reduce the scope for allegations of fault, to simplify the law on
divorce altogether while preserving the institution of marriage200. On these grounds, some basic
principles with regard to saving marriages have been introduced and are in force under the FLA
1996, and which must now be followed alongside the existing rules on divorce under the MCA
1973201. However, the rest of the proposals made under the FLA 1996 with regard to divorce were
never implemented and finally abandoned, thus making the MCA 1973 the existing English divorce
law as mentioned above202.
The MCA 1973 and the Family Proceedings Rules 1991 will be treated in more detail in chapter 4.
198
Herring, Jonathan. op.cit., p. 109.
Bird, Roger and Cretney, Stephen. op.cit., p. 5.
200 Welstead, Mary and Edwards, Susan.2008. Family Law. 2nd ed. Oxford University Press. p. 135.
201 Rodgers, M.E. op.cit., p. 51.
202 Standley, Kate. op.cit., p. 149.
199
37
Table 3.2 Illustration of the major changes in divorce matters on a continuum from divorceless
society via a fault-based divorce law to a hybrid law of fault and no-fault-based divorce203:
Fault-based divorce
Canon Law prevailed, to a
very large extent, up to
1857
MCA 1857
Before the Reformation divorce was not allowed.
After the Reformation, divorce became available by
the Private Act of Parliament procedure to the rich,
and mostly men. However, before a Private Act of
Parliament could be granted, a divorce 'a mensa et
thoro' had to be obtained by the ecclesiastical
courts.
Introduced judicial divorce. Only ground for divorce
was adultery; women had to prove 'aggravated
adultery'. The Act was restrictive and based on fault.
A number of bars existed. Matrimonial causes were
heard only in the Divorce Court in London. The
inquisitorial approach was applicable during
procedure.
MCA 1923
Abolition of the discriminatory rule of 'aggravated
adultery'.
MCA 1937
Extension of the ground for divorce. The new
grounds were still fault-based except one, viz.
prolonged incurable insanity. The introduction of a
no-fault based ground was considered a
fundamental change to the divorce law. The 'old'
bars still applied, but yet another bar was
introduced: no petition for divorce within the first
three years of marriage was allowed.
1969 Divorce Reform Act
Is considered a complete revision of MCA 1937.
'Irretrievable breakdown of marriage' was
introduced as sole ground for divorce. However, this
ground had to be proven by one or more of five facts
of which three were fault-based and two were nofault-based. The 1969 Divorce law was re-enacted as
Part I of the MCA 1973.
MCA 1973
Current English divorce law
No-fault-based divorce
203
My production based on a table produced by Jonathan Herring. Herring, Jonathan. op.cit., p. 562.
38
3.4
The historical development of the divorce law in Denmark
In the following subchapter, the historical development of the divorce law in Denmark will be
outlined based on a structure similar to the one applied to the historical development of the
divorce law in England treated in subchapter 3.3.
3.4.1 From 1500 to 1922 – from divorceless society to unregulated
administrative separation204 and divorce205
Before the Reformation, around 1536 in Denmark, almost all matrimonial cases were heard in the
Catholic Church's courts according to Canon Law206. In principle, this law did not allow divorce.
'Separation from table and bed'207 (separation fra bord og seng) granted by the church court was
the only possible way of dissolving a marriage, and this remedy was obtainable only in case of
adultery, which implied the commitment of a wrong and the proof of fault and guilt 208.
After the Reformation, 'separation from table and bed' was no longer granted with the same
frequency since divorce had now become an option209 as a result of the Protestant Church's
disregard of the Catholic Church's conviction of marriage as a life-long union indissoluble by
divorce210. The grounds for divorce were adultery211, desertion and in case where a spouse refused
to fulfil his matrimonial obligation (ægteskabelige pligt). As a result, remarriage became possible
and matrimonial cases were no longer required to be heard by the Church Courts212.
This radical break with former ecclesiastical convictions and conceptions paved the way for the
passage, in 1582, of the Danish Matrimonial Regulation (Ægteskabsordinansen)213. The aim of this
Regulation was to address the number of disputed questions that ensued from the new marital
conception introduced by the Protestant Church, and on that basis implement a number of
provisions allowing divorce214. According to the Regulation, the grounds for divorce were marital
breach (ægteskabsbrud)215, long term desertion, impotence and in case where one of the spouses
204
'Separation' covers both 'legal separation' (separation) and 'actual separation' (faktisk samlivsophævelse).
'Administrative separation and divorce' (separation og skilsmisse ved bevilling).
206 Tamm, Ditlev. 1989. op.cit., p. 82.
207 Was granted by the ecclesiastical courts and relieved the spouses of the legal obligation to live together, but did not terminate
the marriage according to the law and thus did not allow the parties to remarry – almost identical with the English 'divorce a mensa
et thoro'.
208 Bentzon, Viggo. 1916. Den Danske Familieret. 2. udg. København: G.E.C Gad. p. 225.
209 Ibid. pp. 177-178.
210 Andersen, Ernst. op.cit., p. 133.
211 'Double-sided' adultery constituted a bar to divorce, however. The principle behind this rule was that two wrongs made a right,
and thus no wrong had been committed. Andersen, Ernst. op.cit., p. 143.
212 Ibid. p. 134.
213 Tamm, Ditlev. 1989. op.cit., p. 81.
214 Ibid.
215 Marital breach was to be understood as 'adultery'. Bentzon, Viggo. op.cit., p. 222.
205
39
had been convicted of a criminal offence and sentenced to long term imprisonment 216. However,
contrary to what was possible under the rule of the Catholic Church, the Protestant views did not
include separation217. Later on, in 1683, the provisions set out in the Danish Matrimonial
Regulation of 1582 were incorporated into the Danish Act of 1683 (Danske Lov af 1683) which
made Denmark one judicial entity, and codified a large part of Danish law218.
The further development of the legal provisions on divorce and separation between the passing of
the Danish Act of 1683 and the DFDMA 1922 (ægteskabsloven af 1922) took place mainly by the
administrative practice (bevillingsvejen)219. An increased number of divorces were granted by
administrative decrees (ved bevilling) in the name of the King, hence unregulated by law. On that
basis the grounds for divorce were extended without statutory authority220.
From the middle of the 18th century, the number of administrative legal separation decrees
(separationsbevillinger) increased significantly. And in 1790, for the first time, it was decided that
divorce could be granted by administrative decree where the spouses had obtained an
administrative legal separation decree and had lived apart (faktisk adskilt) for a long period of
time. Shortly after, divorce based solely on the spouses' living apart for a long period was also
introduced221.
Hence, in the beginning of the 20th century, regulation by law of the rising number of
administrative decrees was in focus222. To this end, in 1913, a committee on family matters
(Familieretskommissionen af 1913) was established223. Although the committee's fundamental
view was to preserve marriage, its proposals witnessed a relatively permissive and pragmatic
approach to divorce224.
216
Andersen, Ernst. op.cit., p. 134.
Luther took the pragmatic view that spouses who had entered into a marriage had to live together and not try to escape the
obligations of matrimony. The only other option was divorce. The 'in-between-solution' of 'separation from table and bed' was not
an acceptable solution. Andersen, Ernst. op.cit., p. 134.
218 Tamm, Ditlev. 1989. op.cit., p. 82.
219 Andersen, Ernst. op.cit., p. 135 and Tamm, Ditlev. 1989. op.cit., p. 236.
220 Andersen, Ernst. op.cit., p. 135.
221 Ibid.
222 Tamm, Ditlev. 1989. op.cit., p. 236.
223 Bohr, Ole. 1970. Ægteskabet. Haslev: Gyldendals Oktavbøger. pp. 52-53.
224 Ibid. p. 53.
217
40
3.4.2 From 1922 to 1969 – from the first secular225 Marital Act toward
easier legal separation (separation)226
The work of the 1913 committee on family matters resulted in the passage of the Danish
Formation and Dissolution of Marriage Act 1922 (DFDMA 1922) (Lov om ægteskabs indgåelse og
opløsning af 1922)227.
It was an important Act in that marriage was no longer considered a life-long indissoluble union.
Furthermore, both spouses also became 'visible' in the Act as a result of family ideology's focus on
gender equality and independence in the beginning of the 20th century228.
Although the DFDMA 1922 was characterised by secular ideas and reflected a relatively permissive
view on divorce, the element of fault was still inherent in the Act since a number of grounds for
divorce were based on the commitment of a wrong and the proof of guilt (skyldssynspunktet)229.
However, the fault-based elements and the question of guilt were compromised by the
introduction of legal separation as well as access to divorce based on either legal separation or 4
years' actual separation (faktisk samlivsophævelse)230. In both cases, the spouses had to establish
deep and continuous disagreement (dyb og varig uoverensstemmelse) as a ground231.
Furthermore, three years' incurable insanity was made a ground for divorce, which did also not
require the establishment of fault232. Mediation (mægling) between the spouses was required
before a legal separation or divorce could be granted. The 1922 Act carried on the dichotomy of
administrative or judicial practice in connection with legal separation and divorce (separation eller
skilsmisse ved bevilling eller dom)233.
The period between the passing of the 1922 Act and till the mid-1960s is referred to as the 'happy'
period of divorce law since no remarkable activity within the field took place during this time234. In
the big scheme of things, divorce issues did not lead to much public debate as divorce issues were
considered rather 'un-political'235. The high divorce rate in Denmark during the 20th century
resulted in the occasional discussion of whether attempts should be made to reduce the number
225
Although the Danish Matrimonial Regulation (ægteskabsordinansen) was considered a secular regulation to some extent, a
decisive secularisation of the Danish society was not seen until the end of the 18th century. Graversen, Jørgen m.fl. 1980.
Familieret. København: Juristforbundets Forlag. p. 5.
226 According to the Danish law on divorce, 'legal separation' (separation) means that spouses are living apart according to a judicial
or administrative decree (dom eller bevilling). Nielsen, Linda. 2009. Familieretten. 5. udg. Gjellerup/Gads Forlag. p. 40.
227 http://www.djoef.dk/Udgivelser/Juristen/Juristen2005/Juristennr32005/Aegteskabsbetingelser.aspx. p. 1.
228 Nielsen, Linda and Vostrup, Jesper. op.cit., pp. 24-25.
229 Ringgård, L og Funch Jensen, H. 1966. Ægteskabsloven. 2. udg. København: G.E.C. Gads Forlag. pp. 17-20 and Andersen, Ernst.
op.cit., p. 149.
230 Ringgård, L og Funch Jensen, H. op.cit., p. 92 and Andersen, Ernst. op.cit., p. 135.
231 Pedersen, Johannes. 1970. Den nye ægteskabslov. Næsby: Strandberg Bogtryk. p. 18.
232 Ringgård, L og Funch Jensen, H. op.cit., p. 104 and Phillips, Roderick. op.cit., p. 512.
233 Danielsen, Svend. 1989. Skilsmissesagen, Skandinaviske synsvinkler. Jurist- og Økonomforbundets Forlag. p. 74.
234 Nielsen, Linda and Vostrup, Jesper. op.cit., p. 25 and Danielsen, Svend. 1989. op.cit., p. 75.
235 http://www.themis.dk/synopsis/docs/Artikler/Familieretlige_erindringer_af_Svend_Danielsen.html
41
of divorces through legislation236. But despite a low activity in divorce matters during this period,
the 1960s nevertheless saw the beginning of many changes in the creation, conception and
function of the family; marital life was no longer the sole framework for the creation of a family237.
To keep pace with the changing attitudes, a matrimonial committee (Ægteskabsudvalget af 1957)
was established in 1957238. It presented a number of proposals for a modernisation of the DFDMA
1922. However, only one of these became law. As this was considered an unsatisfactory outcome,
a second matrimonial committee (Ægteskabsudvalget af 1969) was appointed in 1969 and
instructed to present further proposals based on the ones presented in 1957239.
3.4.3 From 1969 to 2007 - from easy legal separation toward further
reduction of legal separation time and abolition of guilt
In 1969, the work of the 1969 matrimonial committee's work laid the foundation for the revision
of the 1922 DFDMA and the passing of the DFDMA 1969. The 1969 Act continued the relatively
free access to legal separation and divorce provided for under the 1922 Act and relaxed the
grounds for divorce mainly through a considerable reduction of the legal separation periods240.
The 1969 Act introduced three basic principles241 which relaxed the requirements for legal
separation thus making legal separation easier to obtain. The principle of agreement
(overenskomstprincippet)242 enabled spouses who agreed that they could no longer continue
married life to seek legal separation. Furthermore, where the spouses did not agree on legal
separation, either party could, according to the principle of neglect (pligtkrænkelsesprincippet)243,
seek legal separation if the other spouse had engaged in guilty and blameworthy behaviour such
as neglect or the commitment of a serious offence against the spouse seeking legal separation or a
child of the marriage. The third principle was the principle of destruction
(ødelæggelsesprincippet)244. According to this, either spouse could seek legal separation if the
relationship was considered destroyed and as long as the spouse seeking legal separation could
not be blamed for or found guilty of this destruction245. Except for cases covered by the principle
of neglect, the spouses were no longer obliged to reason their wish to dissolve married life, as was
236
Ibid.
Nielsen, Linda and Vostrup, Jesper. op.cit., p. 26.
238 http://www.themis.dk/synopsis/docs/Artikler/Familieretlige_erindringer_af_Svend_Danielsen.html
239 Ibid.
240 Ibid., Bøgh, Gunnar. 1970. Ægteskabslov af 4.6.1969. København: Akademisk Forlag. p. 17 and Pedersen, Johannes. op.cit., p. 18.
241Actually, these principles had been inherent in the Danish divorce law for nearly two centuries. However, until the passing of the
1969 DFDMA, the principles had been so vaguely and unclearly formulated that they had been almost invisible in the law.
Andersen, Ernst. op.cit., pp. 147 -151.
242 Ibid. p. 149.
243 Bohr, Ole. op.cit., p. 58.
244 Andersen, Ernst. op.cit.,p. 149.
245 Bøgh, Gunnar. op.cit., pp. 40-41. This provision had been made to prevent a guilty spouse from taking the fast route to divorce
through legal separation, which could be obtained after only one year. Andersen, Ernst. op.cit., p. 138.
237
42
the case under the 1922 Act. Under this new Act, the establishment of disagreement between the
parties or destruction of the marriage was sufficient246. The time period required for actual
separation was also reduced from 4 years in 1922 to 3 years in 1969. The time period for legal
separation was reduced from 18 months to 1 year, if the spouses agreed on legal separation. In
case of disagreement the time period was 30 months247. It was required under the Act that the
spouses were living apart248. Apart from legal separation and actual separation as grounds for
divorce, the 1969 Act also provided for a number of other grounds for divorce such as e.g.
adultery, bigamy, two years' desertion, etc. In case of adultery, the court had to consider all the
circumstances, including the interests of any children. If the court was of the opinion that it would
be wrong to grant a divorce decree it could exercise its discretion and grant a legal separation
decree instead249.
According to the 1969 Act, the procedure for obtaining a legal separation or divorce was still based
on the procedural dichotomy established by the 1922 Act250. Furthermore, mediation preceding all
cases of legal separation and divorces was also maintained251.
In 1987, an amendment was made to the DFDMA 1969 concerning the rewording of the provision
on violence as ground for divorce. Also, in 1987, a working group (arbejdsgruppen af 1987) was
established to present proposals for a more modern divorce law252.
In 1989, based on the 1987 working group's proposals, the grounds for legal separation and
divorce were revised and significantly simplified. Unilateral right to legal separation (ensidig ret til
separation), without considering the question of guilt, was introduced under the 1989 Act253.
Furthermore, the number of grounds for divorce, other than legal separation, was markedly
reduced and legal separation times were further relaxed254.
In 2003, child abduction was made ground for divorce255.
The DFDMA 1969 is considered the main divorce act in Denmark256. However, the current act
governing divorce matters is the Danish Act to Consolidate the Law on Formation and Dissolution
of Marriage 2007 (DACLFDM 2007) (Lovbekendtgørelse nr. 38 af 15/01/2007 om ægteskabs
indgåelse og opløsning), as amended. And it is this Consolidation Act that will be treated in more
detail in chapter 4. It should be mentioned, however, and which also appears from table 3.3, that
246
Bøgh, Gunnar. op.cit., pp. 39-40.
Lund-Andersen, Ingrid. op.cit., p. 191.
248 Pedersen, Johannes. op.cit., p. 18.
249 Pedersen, Johannes. op.cit., p. 19.
250 Bøgh, Gunnar. op.cit., pp. 41-44.
251 Ibid. p. 17, and Koch-Nielsen, Inger. 1985. Divorces. København: The Danish National Institute of Social Research, Publication
148. p. 24.
252 Arbejdsgruppe under justitsministeriet. 1987. Separations- og skilsmissebetingelser, betænkning nr. 1121. København: Statens
Informationstjeneste. p. 3.
253 Nielsen, Linda and Vostrup, Jesper. op.cit., p. 27.
254 Ibid.
255 Lund-Andersen, Ingrid. op.cit., p. 196.
256 Nielsen, Linda. 2009. op.cit., p. 8.
247
43
the amendments made after 2003 are not concerned with the grounds for divorce nor with the
procedure257.
257
See appendix 4.
44
Table 3.3 Illustration of the major changes to the DFDMA 1922 on a continuum from divorceless
society via a fault-based divorce law to an almost no-fault-based divorce law258:
Fault-based divorce
Prevalence of Canon
law up to 1582
Before the Reformation, divorce was not allowed, only
separation from table and bed. Matrimonial cases were
heard in Church Courts. By 1582, divorce was no longer
prohibited. From around the mid-18th century, both legal
and actual separation as well as divorce were allowed and
often granted administratively by the King.
DFDMA 1922
First secular marital act. Both spouses became 'visible' in
the Act. Nofault-based grounds for divorce such as insanity
and divorce based on long actual separation and legal
separation were introduced.
However, most grounds for divorce were still based on
fault. Furthermore, the guilty spouse could not obtain legal
separation or divorce. Matrimonial cases were no longer
heard in Church Courts, but now in the Danish State
Administrations, if the spouses agreed, otherwise in the
judicial courts.
DFDMA 1969
(Main divorce law)
This Act continued the 1922 Act's relatively free access to
actual and legal separation and divorce. However, the 1969
Act further relaxed the grounds for divorce, mainly through
a considerable reduction of separation times. Spouses were
also no longer obliged to reason their wish to dissolve their
marriage. The question of guilt was less predominant.
Procedure was basically still the same.
Rewording of the provision on violence as ground for
divorce.
1987
Amendments to the
DFDMA 1969
1989
Amendments to the
DFDMA 1969
2003
Amendment to the
consolidating Act 1999
Danish
Act
to
Consolidate the Law on
Formation
and
Dissolution of Marriage
2007 (DACLFDM 2007)
Revision and simplification of the Act: Unilateral right to
legal separation, reduction of a number of grounds for
divorce other than legal separation and reduction of the
legal separation time. The question of guilt in connection
with legal separation was also abolished.
Extending the grounds for divorce by the introduction of
child abduction as ground.
Current Danish divorce law.
No-fault-based divorce
258
My production.
45
3.5
Sub conclusion
In England the progress of secularization was discernable after the Reformation, but the
ecclesiastical courts maintained control over matrimonial justice until well into the 19 th century
contrary to the situation in Denmark where the secularization and reformation of various
institutions including the courts happened more decisively and profoundly259.
The first secular divorce law was passed in England in 1857 and it was based on a rather restrictive
maxim in which the fault-based ground of adultery was the only ground for divorce. Procedural
law was inflexible and remained unchanged for many years. In Denmark, although almost 60 years
had to go by before a similar Act was passed, the period after 1790 and until the passage of the
first secular marital act, the DFDMA in 1922, was largely characterized by the idea that separation
constituted a ground for divorce. Furthermore, procedural law allowed administrative decrees,
and divorce became obtainable simply where the spouses had lived apart for a long period of
time260.Hence, the concept of separation became part of the Danish divorce law at a relatively
early time in history. In England, separation was not made 'ground' for divorce until the passing of
the Divorce Reform Act 1969, which was later on re-enacted in MCA 1973.
In Denmark, discussions of a reform of the divorce law were rather uncontroversial and focused
largely on substantive law, namely whether or not separation time, especially legal separation
time, should be reduced and thereby making it easier to obtain a divorce. In England, debates on
divorce appeared to be relatively contentious and continued to focus mainly on what was possible
within the framework of procedural law. This became an obstacle to changing substantive law and
thus confined the debate to a discussion between reformists and non-reformists on whether nofault grounds should be introduced at all261.
Thus, it seems that the Danish divorce law undertook a continuous and linear development
compared with the development of the English, which experienced some serious setbacks
throughout time primarily due to the non-reformists' reluctance to reform.
259
Phillips, Roderick. op.cit., pp. 197 - 203.
Bentzon, Viggo. op.cit., p. 179.
261 Stone, Lawrence. op.cit., p. 15.
260
46
4 Existing divorce law in England and Denmark
In the following chapter, the existing grounds for divorce and the procedure for obtaining a
divorce in England and Denmark will be described.
4.1
Existing grounds for divorce in England
As mentioned in subchapter 3.3, it is the provisions of the Matrimonial Causes Act 1973, (MCA
1973), that establish the grounds for divorce in England. Below, the relevant sections that is PART
I, Divorce, sections 1, 2, 3, 5 and 10 of the Act will be treated. Sections 2, 5 and 10, except 10A, will
not be treated in detail, however.
Section 1 (1) and (2) of the MCA 1973
According to section 1(1) the sole ground for divorce is that there must be 'irretrievable
breakdown of marriage' and that a divorce may be sought by either party to a marriage on this
sole ground. However, according to s 1(2) the only way of establishing irretrievable breakdown of
marriage is by proving one or more of five facts listed in s 1(2)(a),(b),(c),(d) and (e), respectively262.
Section 1(2)(a) of the MCA 1973, the adultery and intolerability fact
This section involves the proving of two distinct elements, namely the element of adultery and the
element of intolerability. The first element, adultery, is defined as an act of sexual intercourse
between the respondent and another person, not being the respondent's spouse. The petitioner
cannot rely on his or her own adultery, rape or a homosexual relationship. The latter case may
probably be covered by the behaviour fact263. If the respondent defends264 (does not agree with
the allegations made against him) the petition and denies the adultery, then the petitioner must
prove it. The second element, intolerability, is established by putting forward the question
whether this petitioner finds it intolerable to live with this respondent. It does not matter whether
most people would or would not find it intolerable to live with the respondent – only the reaction
of the petitioner is relevant. The test of intolerability is thus a subjective one. Hence, adultery
itself is not evidence of marital breakdown as intolerability must also be established. However, the
formulation of s 1(2)(a) does not require any connection whatsoever between the act of adultery
and the fact that the petitioner finds it intolerable to live with the respondent. Furthermore,
relevant to s 1(2)(a) some time limitations are put forward in s 2(1) of the Act which provide that a
petition based on adultery cannot be heard if the parties have lived together for more than six
months after the petitioner discovered the adultery. Under s 2(2) of the Act, this period of living
262
Herring, Jonathan. op.cit., p. 109. See also appendix 1.
Cretney, Stephen. 1992. op.cit., p. 40.
264 See subchapter 4.2 for further detail.
263
47
together is disregarded by the court when it is determining whether the petitioner finds it
intolerable to live with the respondent265.
Section 1(2)(b) of the MCA 1973, the behaviour fact
This section also involves two elements to be considered. First, there must be some kind of
behaviour. Second it must also be established that it is unreasonable for the petitioner to continue
living with the respondent. As to behaviour, this can include acts such as violence and drinking, but
also omissions such as a withdrawn personality. Omissions, however, may also include blameless
behaviour such as medical illness, both mentally and physically. It is not the behaviour that needs
to be unreasonable, but the expectation of cohabitation. Thus, it must be behaviour that a rightthinking person would think was such that this petitioner cannot reasonably be expected to live
with the respondent. So the test for establishing unreasonable behaviour is objective, but also
subjective in that the court must consider the effect of the respondent's behaviour on the
particular petitioner. By way of example, a violent or alcoholic petitioner could reasonably be
expected to live with a respondent with similar attributes. As with the first fact, certain time
limitations must be observed. Thus, according to s 2(3) of this Act, spouses are permitted to live
together for a period of time not exceeding six months after the last instance of behaviour alleged,
without losing the right to petition for divorce266.
About three-quarters of petitions are based on either adultery or unreasonable behaviour as these
facts do not involve delay267.
Section 1(2)(c) of the MCA 1973, the desertion fact
This section requires the respondent's withdrawal from the state of marriage without just cause
for a continuous period of at least two years to be proved. Hence, three requirements must be
met: factual separation, an intention by the respondent to desert and no consent by the petitioner
to the desertion. Constructive desertion is possible where the behaviour of the one spouse is so
bad, e.g. adultery or behaviour, that the other spouse is forced to leave the matrimonial home. It
should be added that in such cases the adultery and behaviour facts, s 1 (2)(a) and (b) are often
used instead. The respondent may be found to have deserted the petitioner even where they
continue to live under the same roof if the spouses are living totally separate lives, i.e. separate
households. In case where the respondent volunteers to return to the petitioner before the end of
the two-year period and the petitioner refuses, without good reason, to resume cohabitation, the
petitioner will be held to be in desertion if the separation lasts for a further two years. According
to s 2(5) of the Act, a time period is also given during which cohabitation can be resumed without
265
Standley, Kate. op.cit., pp. 157 and 158. See also appendix 1.
Ibid. pp. 158 and 160. See also appendix 1.
267 Herring, Jonathan. op.cit., p. 109.
266
48
preventing the desertion being continuous268. Due to the introduction of the two and five years'
separation facts, desertion is rarely relied on269.
Section 1(2)(d) of the MCA 1973, the two years' separation fact
This section provides that the parties must have lived apart for a continuous period of at least two
years immediately preceding the presentation of the petition and the respondent must consent to
the decree being granted. Not only must the parties be living apart, there must also be a wish by
one spouse to live apart. S 2(5) of the Act sets out provisions as to the calculation of the period of
separation, and s 2(6) sets out provisions for determining when a couple is said to be living apart
that is in separate households. It follows from s 2(7) of the Act that the respondent must have the
capacity to consent and must be given such information as will enable him to understand the
effect of a decree being granted270.
Section 1(2)(e) of the MCA 1973, the five years' separation fact
This section basically sets out the same provisions as those discussed above under s 1(2)(d). The
only exceptions are that the parties must have lived apart for a continuous period of at least five
years immediately preceding the presentation of the petition and that there is no requirement of
consent by the respondent. S 2(5) and (6) also apply to this fact when calculating the period of
separation and determining whether the spouses live in separate household 271.
Although the separation facts were considered a real novelty of the MCA 1973 since the spouses
were no longer required to think in terms of fault, little use are made of these facts, because
couples are not willing to wait for two or five years as provided by s 1(2)(d) and (e), the separation
facts272.
Section 1(3),(4) and (5) of the MCA 1973
S 1(3) and (4) provide that if none of the five facts is proven, then a divorce cannot be granted,
even if the court is convinced that the marriage has irretrievably broken down. Similarly, a divorce
should not be granted if the court is convinced that the marriage has not irretrievably broken
down even if one or more of the facts is established.
Furthermore, s 1(5) provides that a divorce decree shall not be made absolute (final) immediately,
but must in the first instance be a decree nisi (temporary). It can be made absolute only after the
expiration of a six-months-period after the grant of the decree nisi273.
268
Welstead, Mary and Edwards, Susan. op.cit., pp. 129 and 130. See also appendix 1.
Cretney, Stephen. 1992. op.cit., p. 47.
270 Standley, Kate. op.cit., pp. 160 and 161, and Rodgers, M.E. op.cit., p. 44. See also appendix 1.
271 Standley, Kate. op.cit., pp. 161 and 162. See also appendix 1.
272 Cretney, Stephen. 1992. op.cit., p. 51.
273 Herring, Jonathan. op.cit., pp. 109 and 110.
269
49
Section 2 of the MCA 1973
As explained under the five different facts, s 2 includes, among other things, provisions which
establish a range of time bars particular to each different fact. The section also permits the parties
to stop the fact clock from running in separation cases and thus promoting attempts at
reconciliation274.
Section 3 of the MCA 1973
According to s 3, there is a one-year bar to divorce275. This means that it is not possible to petition
for divorce until a couple have been married for one year. Nevertheless, a petition presented after
the one-year period of marriage has expired may be based on matters which occurred before the
expiration of that period, i.e. during the first year of marriage276.
Sections 5 and 10 of the MCA 1973
These sections provide defences and delays for respondents to a divorce based on five-years' and
two-years'/five-years' separation, respectively. The purpose of s 5 is to safeguard the position of
the innocent277 spouse, who does not wish to be divorced. The court has the power to rescind a
decree nisi if the respondent proves that he or she will suffer grave financial hardship and in that
way prevent the divorce from going ahead. However, the alleged hardship must be a result of the
dissolution of the marriage, not from the mere fact of marriage breakdown or separation. As with
s 10, in case of the two years' separation fact, the court is given discretion to rescind a decree nisi,
but not a decree absolute, if the petitioner misleads the respondent, even unintentionally, about
any matter which the respondent took into account in deciding to give his consent. In case of the
five years' separation fact, this section also allows the court at the request of the respondent to
decline to make the decree absolute if it is not satisfied with the financial arrangements for the
respondent, and thereby delaying the divorce278.
274
Rodgers, M.E op.cit., p. 47. See also appendix 1.
Between 1937 and 1984 this period was three years. Cretney, Stephen. 1992. op.cit., p. 37.
276 Herring, Jonathan. op.cit., p. 109. See also appendix 1.
277 As the two separation facts, s 1(2)(d) and (e), are considered no-fault-based facts, the respondent is de facto regarded as
innocent.
278 Rodgers, M.E. op.cit., pp. 47-48, and Herring, Jonathan. op.cit., p. 114. See also appendix 1.
275
50
4.2
Existing procedure for obtaining a divorce in England
As mentioned in subchapter 3.3, it is the rules of procedure laid down in the Family Proceedings
Rules 1991 (FPR 1991) that primarily regulate the procedure for obtaining a divorce in England. As
explained in subchapter 1.3, specific reference will not be made to the rules of the FPR 1991 since
focus will be on the overall principles of the divorce procedure. The two-part process of decree
nisi and decree absolute will be treated under the procedure although it is regulated under s 1(5)
of the MCA 1973. This choice is based on Welstead's structure for treating the divorce
procedure279.
In England, divorce procedure differs according to whether a divorce is undefended280 281 or
defended282. However, whether a case is undefended or defended, both procedures share a
number of common denominators. For example, the court must be satisfied that the ground for
divorce i.e. irretrievable breakdown of marriage has been established and proven by one or more
of the five facts (see subchapter 4.1 above). Furthermore, both kinds of divorce cases will be heard
in court and the pronouncement of the divorce decree is made by the court as well 283. The divorce
petition is the central document in both procedures. It informs the respondent and the court of
the basis, that is the petitioner must state on oath the ground and facts for divorce, on which he is
seeking a decree of divorce. The orders284 that he will be seeking as part of the divorce must also
be indicated. As to the defended divorce case, the respondent must indicate an intention to
defend on the relevant documents accompanying the petition. However, despite these similarities,
the two procedures do differ on a number of points.
4.2.1 Undefended divorces
As stated in subchapter 3.3, in 1977 the 'special procedure' was introduced to cover all grounds
for divorce where the petition was undefended. Basically, this means that an undefended divorce
is obtained by way of what is essentially an administrative procedure, or at least quasiadministrative285. The petition and other documents involved are simply lodged at the court. Here
they will be read through by a district judge286 who, if satisfied that all requirements are met, will
279
Welstead, Mary and Edwards, Susan. op.cit., p. 121. See also discussion under section 5.2 of this thesis.
Where a divorce is undefended, the respondent does not contest/object to the allegations made against him. Rodgers, M.E.
op.cit., p. 39.
281 Almost 97 per cent of all divorce cases are undefended. Welstead, Mary and Edwards, Susan. op.cit., p. 120.
282 In defended divorce cases, the respondent contests the allegations made against him.
283 Herring, Jonathan. op.cit., p. 108.
284 In connection with divorce, a number of orders may be sought under the MCA 1973 that cover financial and property matters as
well as orders for the arrangements to be made for the upbringing of the children. However, most orders will not be dealt with
until after the grant of the final divorce decree (decree absolute). Cretney, Stephen. 1992. op.cit., p. 35.
285 Standley, Kate. op.cit., pp. 163-167.
286 Formerly 'district registrars'. Appointed by the Lord Chancellor for each county court. Could be rendered into 'retsassessor' in
Danish. Curzon, L. B.2002. Dictionary of Law. Pearson-Longman. Frandsen, Helle Pals. 2000. Juridisk ordbog, engelsk/dansk.
København: Gads Forlag.
280
51
issue a decree of divorce287. As noted above, this is done in open court, although, the parties are
not obliged to be present; and usually they are not288. Despite the provision in s 1(3) of the MCA
1973 stipulating that the court must inquire into the alleged facts, there will be no such real and
thorough investigation into these to ensure that what is stated on the petition is true and,
therefore, it is not very likely that the court will discover anything other than procedural errors
when it reads through the documents289.
4.2.2 Defended divorces
Only few divorce cases are defended290. In the rare case that a respondent decides to defend the
petition, the 'special procedure' may not be used and there will instead be a full hearing of the
petitioner's claim and the respondent's defence in open court with the exchange of pleadings by
counsel and oral evidence being given as well as cross-examination of both parties291. A divorce
decree will be granted unless the respondent is able to prove that the petitioner's statement is
incorrect and/or provides evidence that the marriage has not irretrievably broken down. As noted
above, divorces are rarely defended. This is probably due to the expense involved in defending a
divorce petition, and to the fact that such petitions are unlikely to succeed because the adversarial
nature of defending the petition may result in the respondent making statements which contradict
and defeat his attempts to claim and prove that the marriage has not irretrievably broken
down292.
4.2.3 The two-part process: decree nisi – decree absolute
Whether a divorce is undefended or defended, the divorce decree is divided into two parts
according to s 1(5) of the MCA 1973. The first part, the decree nisi, does not terminate the
marriage. It is pronounced in open court, normally without the attendance of either party, except
in case of a defended divorce; the pronouncement is a mere formality. The second part, the
decree absolute, terminates the marriage. If there are no objections, it can be granted after a
period of six weeks has elapsed on application by the petitioner, or by the respondent after three
months have elapsed from the earliest date on which the petitioner could apply for it with293 294.
The purpose of this two-part process is to enable a respondent to appeal, and the Queen's
287
Standley, Kate. op.cit., pp. 165 and 166, and Welstead, Mary and Edwards, Susan. op.cit., pp. 119 and 120.
Standley, Kate. op.cit., p. 165.
289 Rodgers, M.E. op.cit., p. 39.
290 Welstead, Mary and Edwards, Susan. op.cit., p. 120. See also note 282.
291 Ibid.
292 Ibid.
293 Ibid. p. 121.
294 If the respondent applies the court may use its discretion to refuse to make the decree absolute if there are financial matters
unresolved. Herring, Jonathan. op.cit., p. 109.
288
52
Protector295 and other persons to intervene to show just cause why a decree absolute should not
be granted. Nowadays, however, such interventions are rare296.
295
The solicitor representing the Crown who may intervene in the case of divorce proceedings. Any person may give information to
the Protector relevant to the case. Curzon, L. B.2002. op.cit. No equivalent is found in the Danish legal system.
296 Standley, Kate. op.cit., p. 166, and Herring, Jonathan. op.cit., p. 108.
53
4.3
Existing grounds for divorce in Denmark
As mentioned in subchapter 3.4 it is the provisions of the DACLFDM 2007 (Lovbekendtgørelse nr.
38 af 15/01/2007 om ægteskabs indgåelse og opløsning)297, as amended that establish the existing
grounds for divorce in Denmark. More specifically, it is sections 31 to 36298 which will be described
below, primarily. The relevant sections have been translated into English299 to illustrate the
wording of the Act.
Section 31 of the DACLFDM 2007, Divorce after legal separation
It follows from s 31(1) that either spouse is entitled to a divorce after 1 year's legal separation300
301.
Section 31(1) of the Act does not expressly provide that the spouses must have lived apart during
the separation period. However, according to s 30 of the Act the spouses are not entitled to a
divorce based on a legal separation if they continue or have resumed married life. A period of
living together not exceeding 2 to 3 months does not cause the legal separation to elapse,
however. Furthermore, there must be intention by both spouses to separate that is to say, to live
apart in separate households302.
Where the spouses agree, they are entitled to a divorce after 6 months' legal separation according
to s 31(2). The parties need only agree on a divorce, not on the terms that may be discussed in
connection with their divorce. Hence, according to s 31(2) nothing prevents a divorce from being
granted by judicial decree either. The parties' agreement on divorce must exist after the expiration
of the 6 months period and until the administrative or judicial decree has been granted303.
Section 32 DACLFDM 2007, Two years' living apart
S 32 provides that to obtain a divorce the spouses must have lived apart (faktisk adskilt) and that
this living apart must be due to disagreement (uoverenstemmelse) between them. If a spouse has
been imprisoned, admitted to hospital or worked abroad for a lengthy period, a divorce cannot be
granted in pursuance to s 32. However, a divorce may be granted if disagreement occurs at a later
297
https://www.retsinformation.dk/Forms/R0710.aspx?id=31944. See also appendix 4.
See appendices 2 and 3.
299 See appendix 3.
300 Section 29 of the Act provides that either party to a marriage has an unconditional (ubetinget) and a unilateral (ensidig) right to
a legal separation where he no longer believes to be able to continue married life. The other spouse need not consent. The
spouse(s) need not reason his/their wish to seek legal separation, and no investigation by the Danish authorities or the court is
required. Legal separation means that the spouses are separated according to an administrative or judicial decree (skilsmisse ved
bevilling eller ved dom). The parties must be living apart, i.e. in separate households. The purpose of legal separation is for the
parties to consider whether married life may be resumed, or whether it must be irrevocably dissolved by divorce. During the time
of legal separation, the marriage remains. Hence, the parties are not allowed to remarry. Rasmussen, Nell. 2007. Lærebog i
familieret. 2. udg.DIKE ApS. p. 192.
301 Nielsen, Linda. 2009. op.cit., p. 40.
302 Lund-Andersen, Ingrid. op.cit., p. 191.
303 Ibid. p. 192.
298
54
stage and if the spouses on that ground have continued to live apart. Where the spouses decide to
live apart again after a period of living together, the time-limit is calculated from the last period of
living apart. It follows from this section that the individual periods of living apart cannot be added
together to constitute the required continuous period of living apart304.
Section 33 DACLFDM 2007, Adultery
According to s 33, a spouse shall be entitled to a divorce where the other spouse has committed
adultery or has engaged in a similar sexual relationship. Accordingly, adultery is defined as
involving a voluntary act of sexual intercourse between the husband or wife and a third party. In
case of rape, unlawful coercion or where the spouse at the time was irresponsible on account of
mental illness, marital breach (ægteskabsbrud) cannot be established. Sexual intercourse is
comparable with sexual conduct similar to sexual intercourse, including a homosexual or lesbian
relationship. Although the spouses agree on divorce, adultery must be proven. Where a divorce is
granted by administrative decree, a written statement made by the third party, that is the person
with whom the adulterous spouse has had a sexual relationship, will suffice to establish adultery.
Otherwise, in case where a judicial decree is granted the statement made by the adulterous
spouse will serve as proof. Divorce cannot be required where a spouse has accepted the act of
adultery, or at a later time is deemed to have renounced his right to a divorce by continuing
married life knowing about the other spouse's act of adultery. The same applies where a spouse
knowing about the other spouse's act of adultery seeks legal separation instead of divorce.
Divorce is not excluded where both spouses have committed adultery. An act of adultery
committed during the time of legal separation is no longer a ground for divorce (s 33(2)).
According to s 33(3) an application for an administratively granted divorce must be filed with the
Danish Regional State Administration(s) (Statsforvaltningen(rne))305 or court proceedings must be
commenced within 6 months from the date on which the act of adultery has become known to the
other spouse, and within 2 years from it having been committed306.
Section 34 DACLFDM 2007, Violence
According to s 34, a spouse shall be entitled to a divorce where the other spouse has committed
violence against that spouse or the children. The violence committed must be intentional and
aggravated. The burden of proof lies with the applicant. It is not required that the spouse has been
convicted of violence. The court exercises its discretion in the assessment of the nature of the
violence. An application for an administratively granted divorce must be filed with the Danish
Regional State Administration or court proceedings must be commenced within 1 year after the
304
Lund-Andersen, Ingrid. op.cit., pp. 194-195. See also appendices 2 and 3.
By the 2007 Municipal Reform (kommunalreformen i 2007) in Denmark, the Danish State Administrations (Statsamterne) were
replaced by the Danish Regional State Administrations (Statsforvaltningerne). http://www.statsforvaltning.dk/site.aspx?p=4577
and http://www.statsforvaltning.dk/site.aspx?p=5466. See subchapter 4.4 for further details.
306 Nielsen, Linda. 2009. op.cit., p. 44. See also appendices 2 and 3.
305
55
act of violence has become known to the spouse and within 3 years after it having been
committed307.
Section 35 DACLFDM 2007, Bigamy
Bigamy is a ground for divorce that is to say, a spouse is entitled to an immediate divorce where
the other spouse has entered into a marriage – or civil partnership – contrary to s 9 of this Act. The
new bigamist marriage will probably be declared null according to s 23 of the same Act308.
Section 36 DACLFDM 2007, Child abduction
It follows from this section that a spouse shall be entitled to a divorce where the other spouse has
unlawfully taken the aforementioned spouse's child out of the country, or unlawfully retains the
child abroad. The provision refers to cases in which a parent has carried out the abduction himself
and to cases in which, without having personally taken the child out of the country, a parent has
been an accessory to child abduction. To serve as ground for divorce, it must be established that
unlawful child abduction or retention of a child abroad has taken place. This must also be
established even where the parents agree on divorce. The provision provides that the spouse who
wishes to divorce must be the parent of the abducted or retained child. Hence, the child may be a
child of the marriage or a separate child of the parent who has been left in Denmark. An
application for an administratively granted divorce must be filed with the Danish Regional State
Administration or court proceedings must be commenced while, due to having been unlawfully
abducted or retained abroad, the child stays in a foreign country, or not later than 1 year after the
return of the child309.
Child abduction was added as a ground for divorce in 2003, because the authorities in certain
countries refused to help return a child to Denmark if the child had been abducted by the father,
and the mother and father were still married or legally separated. The authorities in these
countries consider child abduction a dispute between the parents and in which the authorities will
not interfere310.
Divorces based on sections 32, 34, 35 and 36 are rare311.
307
Ibid. p. 195. See also appendices 2 and 3.
Nielsen, Linda. 2008. op.cit., p. 37. See also appendices 2 and 3.
309 Ibid. See also appendices 2 and 3.
310 Lund-Andersen, Ingrid. op.cit., p. 196. See also appendices 2 and 3.
311 Nielsen, Linda. 2009. op.cit., p. 43.
308
56
4.4
Existing procedure for obtaining a divorce in Denmark
As mentioned in subchapter 3.4, the provisions governing the procedure for obtaining a divorce in
Denmark are incorporated into the DACLFDM 2007, as amended. As stated in subchapter 1.3, only
the main principles behind the divorce procedure are subject to investigation in this study.
Therefore, specific reference to the sections governing the procedure will not be made.
Compared to many other countries, the Danish procedure for obtaining a divorce is unique312 in
that divorce may be granted by way of two different procedures: the administrative procedure
(bevillingsvejen) and the judicial procedure (ad rettens vej)313.
It follows from the DACLFDM 2007 that any application for divorce must always be filed with the
Danish Regional State Administrations (Statsforvaltningerne)314. It is no longer possible to bring
divorce proceedings directly before a Danish court of law315. Consequently, a divorce petition
(stævning) is no longer the central document in divorce cases316. It also applies to both procedures
that there must be evidence of a ground for divorce.
4.4.1 The administrative procedure
This procedure may be characterised as a kind of agreement system (aftalesystem) as it is based
on the spouses' agreement317. Thus, the spouses must agree on a number of issues referred to as
terms (vilkår)318 before a grant for divorce by administrative decree (ved bevilling) can be issued
by the Regional State Administration319. The aim of this procedure is an attempt to simplify the
divorce procedure by creating one single authority to which the spouses always have to apply in
divorce matters320. To this end, the number of terms was also reduced in 2005321. With the
312
Lund-Andersen, Ingrid. 2003. op.cit., p. 197. and Boele-Woelki, Katharina. 2003. Perspectives for the Unification and
Harmonisation of Family Law in Europe. Intersentia. p. 542.
313 Nielsen, Linda. 2009. op.cit., pp. 45-46. The procedure for obtaining 'legal separation' is almost the same. Lund-Andersen, Ingrid.
2003. op.cit., p. 197.
314 Nielsen, Linda. 2008. op.cit., p.. 41.
315 Ibid. p. 44.
316 Ibid. p. 51.
317 Rasmussen, Nell. op.cit., p. 199.
318 Financial provision (bidrag til ægtefælle), lease on the apartment (lejemålet af fælles lejebolig), payment of an amount on
separate property (betaling af et beløb i forbindelse med særeje). Nielsen, Linda. 2009. op.cit., p. 46.
319 Ibid. pp. 45-46, and Rasmussen, Nell. op.cit., p. 199.
320 Nielsen, Linda. 2008. op.cit., pp. 41-42.
321 The spouses no longer have to agree on issues such as custody (forældremyndighed), contact rights (samvær), child support
(bidrag til børn), the size of the financial provision (størrelsen af ægtefællebidrag), division of the spouses' joint property (deling af
ægtefællernes fællesbo), or spouse's pension (ægtefællepension). https://www.retsinformation.dk/Forms/R0710.aspx?id=31488
and Nielsen, Linda. 2008. op.cit., p. 42.
57
Municipal Reform (kommunalreformen) introduced in 2007, attempts were made to further
agreement and reconciliation between the spouses by offering advice and reconciliation service
(rådgivnings- og mæglingstilbud) at the Regional State Administration. The tendency is thus to
make the divorce procedure a 'private' process322.
Hence, when an application for divorce has been received by the Regional State Administration,
the spouses will be summoned to a negotiation of terms (vilkårsforhandling) unless the spouses
have already reached agreement. During the negotiation of terms, the spouses are normally not
represented by a lawyer (advokat). The purpose of the meeting is for the spouses to satisfy the
Regional State Administration that all requirements are met. Where the spouses fail to reach
agreement during the negotiation of terms, the Regional State Administration may offer the
spouses to use the mediation service323.
When compared with the judicial procedure, the administrative procedure is the most commonly
used324, probably because it offers the advantages of being fast, and informal. In addition, it is not
unlikely that the spouses consider the administrative procedure less stressful and less humiliating,
as it may seem less intimidating to appear before the Regional State Administration than before a
court of law325.
4.4.2 The judicial procedure
Where the spouses fail to reach agreement on the requirements mentioned above, or where the
Regional State Administration finds it objectionable to grant an administrative decree – for
instance where the Regional State Administration is not satisfied that a valid ground for divorce
exists - the Regional State Administration brings the case before a Danish court of law. In that
case, the court only decides whether or not divorce can be granted as well as exercises its
discretion in the assessment of the substance of the terms, having regard to the spouses'
agreement before it grants a judicial decree. The court does not make orders (kendelser) on the
financial settlement (bodeling) for instance. This is settled on a later date by the Danish probate
court326.
322
Nielsen, Linda. 2009. op.cit., p. 41.
Lund-Andersen, Ingrid. op.cit., p. 205.
324 In more than 90 % of all divorce and legal separation cases. Ibid. p. 203.
325 Nielsen, Linda. 2009. op.cit., p. 46.
326 Ibid. and Lund-Andersen, Ingrid. op.cit., p. 199.
323
58
5 Comparative analysis
Below, a comparative analysis will follow based on the findings in chapter 4 primarily. To create
coherence the main headline structure will follow that of chapter 4. Finally, a sub conclusion will
summarize on chapter 5. However, before commencing the comparative analysis on the selected
areas of the divorce law, some brief comments will be attached to the legal form of legislation
itself as this is an area in which the two countries do not differ.
As stated first in chapter 2 and subsequently supported by the findings in chapters 3 and 4, the
two areas subject to investigation that is to say the existing grounds for divorce and the procedure
for obtaining a divorce are regulated by legislation in both England and Denmark namely, by the
MCA 1973, (the FRP 1991), and the DACLFDM 2007, respectively. As mentioned above, this means
that the two countries' divorce law in itself constitute a field in which the two countries do not
differ. However, despite this similarity, it should be mentioned that the development of the two
countries' divorce law since the re-enactment of the English Divorce Reform Act 1969 into the
MCA 1973 and the main Danish divorce law of 1969 has not followed similar paths. As it appeared
from subchapter 3.3 and 3.4 no reforms of the English divorce law since 1973 have been carried
out, whereas a number of relatively substantive changes to the Danish divorce law both in
substance and in tone have been introduced, particularly the reduction of the legal separation
time, a unilateral right to legal separation, without considering the question of guilt, and the
introduction of child abduction as a ground for divorce. Rightly so, it must be noted that within the
field of procedure, the English procedure for obtaining a divorce nevertheless underwent reforms
in 1973 and shortly after, again in 1977 by the introduction of the special procedure.
5.1
Existing grounds for divorce in England and Denmark
5.1.1 'Ground' and facts for divorce
Under the MCA 1973, there is only one ground for divorce: irretrievable breakdown of marriage.
However, the establishment of this ground must further be proven by at least on of five facts.
These include adultery and intolerability, behaviour, desertion, two years' separation or five years'
separation. Thus, to obtain a divorce in England a two-step process of proof, namely the proof of
irretrievable breakdown of marriage and the proof of one or more of five facts is required.
These provisions distinguish themselves markedly from the situation in Denmark. Under the
DACLFDM 2007, there are six grounds for divorce. These include divorce after legal separation, 2
years' living apart, adultery, violence, bigamy and child abduction. These grounds are sufficient in
themselves as grounds for divorce and do not require further proof.
59
5.1.2 Distinction between fault/no-fault
It follows from the English divorce law that there is a strict distinction between fault and no-fault.
According to the MCA 1973, the ground for divorce, irretrievable breakdown of marriage, is in
itself a no-fault ground, whereas the first three facts are fault-based and the last two are no-faultbased.
In Denmark, although the distinction between fault and no-fault-based grounds does exist it is not
distinct as it is rarely referred to. This is probably because the most commonly used ground for
divorce is the no-fault-based ground of legal separation. If the distinction is to be made, it could be
argued that the first two grounds for divorce could be considered no-fault-based and the last four
could be said to involve some kind of fault.
5.1.3 Bar to divorce
Under the MCA 1973, before a petition for divorce can be presented to the court, a period of one
year preceding the date of the marriage must have expired.
According the DACLFDM 2007, there are no provisions stating that a couple must have been
married for a certain period of time before they can apply for a divorce.
5.1.4 Individual 'grounds' and facts for divorce
In England, adultery is insufficient on its own as a fact to prove irretrievable breakdown of
marriage. Intolerability must also be proven. However, there need not be any connection between
these two elements. Furthermore, the judicial definition of adultery prescribes that sexual activity
not involving sexual intercourse or homosexual relationships does not constitute adultery. Finally,
adultery cannot be heard if the parties have lived with each other for more than six months after
the petitioner discovered the adultery. This time-bar is disregarded in connection with the
intolerability element. Section 1(2)(a) does not expressly state that the petitioner's accept of the
adulterous act committed by the respondent constitutes a bar to divorce as was the case under
the previous MCAs in the form of collusion327.
In Denmark, the act of adultery is a ground for divorce in itself and, hence, 'intolerability' is not
considered in this regard nor is it considered elsewhere in connection with the grounds for
divorce. Besides, a homosexual relationship may constitute adultery. The act of adultery cannot be
heard if an application for divorce has not been presented or court proceedings have not been
327
See sections 3.3.1. and 3.3.2 of this thesis.
60
commenced within six months after the act has become known to the other spouse, and within
two years after it having been committed. The DACLFDM 2007 does not provide that the parties
must not continue to live with each other after the act of adultery has been committed. An act of
adultery cannot constitute a ground for divorce if the other spouse has accepted the act of
adultery, or at a later time has renounced his right to a divorce. As can be seen, the establishment
of adultery and certain requirements relating hereto differs rather markedly in the two countries.
According to the MCA 1973, the behaviour fact is broadly defined in that many kinds of acts as
well as omissions may constitute behaviour. As with the adultery fact, the MCA 1973 also provides
the establishment of a second element, namely unreasonableness before the behaviour fact can
be relied on. Hence, it must be established that the respondent cannot reasonably be expected to
live with the respondent. This reasonability test is based on a subjective as well as on an objective
test. As with the adultery fact, the spouses are permitted to continue living together for a time
period not exceeding six months after the last instance of behaviour alleged.
Although violence is often relied on to establish the behaviour fact under the MCA 1973, the
English behaviour fact has no direct comparison with the provisions of the DACLFDM 2007 as
violence is made a specific ground for divorce in Denmark. An application for a grant for divorce
must be presented or court proceedings commenced within 1 year after the act of violence has
become known to the spouse and within 3 years after it having been committed. Although the
English behaviour fact and the Danish violence ground are not directly comparable, it may,
however, be noted that the bars and restrictions imposed, although not directly comparable
either, seem less permissive under the MCA 1973 as the time-bars are absolute328.
According to the MCA 1973, desertion constitutes one of the five facts. In this regard, the two
countries also differ from each other since desertion is not a ground for divorce under the
DACLFDM 2007.
In England, two and five years' separation constitute the two no-fault-based facts. The two
separation facts require that the parties have been living apart in separate households for a
continuous period of at least two or five years, respectively, preceding the presentation of the
divorce petition. As to the two years' separation fact there must be a wish by one spouse to live
apart and the respondent must also consent to the divorce. Furthermore, he must have the
capacity to consent and must be given information that enables him to understand the effect of a
divorce decree. Consent is not required for the five years' separation fact. According to both
separation facts the parties are permitted to have resumed living together for one or more periods
totalling six months.
Here again the provisions of the two countries are not directly comparable as they differ quite
remarkably. Legal separation in Denmark must not be confused with the above-mentioned English
separation facts. First of all, legal separation constitutes a ground for divorce. Second, it is
328
Rodgers, M.E. op.cit., p. 48.
61
established on the basis of a legal document granted by administrative or judicial decree. Thus, it
follows from s 29 of the DACLFDM 2007 that either spouse to a marriage has an unconditional and
a unilateral right to legal separation where the spouse no longer believes to be able to continue
married life. The other spouse need not consent. The spouse(s) need not reason his/their wish to
seek legal separation either, and no investigation by the Danish authorities or the court is
required. However, there must be intention by both spouses to separate, i.e. to live apart. Either
spouse is thus entitled to divorce after 1 year's legal separation, or after 6 months' legal
separation, if they agree (see also footnote 300).
The divorce ground of 2 years' living apart under the DACLFDM 2007 is probably the closest we get
to a comparison with the two years' separation fact in England. But again the differences cannot
be disregarded. As just mentioned, 2 years' living apart is a direct ground for divorce in Denmark,
and the living apart must be due to disagreement. Furthermore, the 2 years' living apart requires
no consent by one of the spouses. Furthermore, no five years' separation as ground for divorce
exists under the DACLFDM 2007.
In England, the defences to divorce petitions based on the two and/or five years' separation facts
provided for in sections 5 and 10 of the MCA 1973 are not provided for under the DACLFDM 2007.
The reason may be that after 1 year's legal separation either spouse has a unilateral right to a
divorce in Denmark. Furthermore the fault-based perspective is also no longer inherent in the
Danish divorce law to the same extent as is the case in England. In Denmark, however, the spouses
have to agree on a certain number of terms to obtain an administrative divorce decree. If they fail
to agree, the court will stipulate the terms, but it is not allowed to prevent a divorce from being
granted.
Bigamy is a ground for divorce in Denmark, but must be considered together with the provisions
on nullity set out in chapter 3 of the DACLFDM 2007. Hence, it follows from s 23 of the Act that a
marriage shall be annulled by judicial decree if it has been contracted contrary to s 6 or 9.
Pursuant to s 6 a marriage between relatives in lineal ascent and descent or between brothers and
sisters shall not be allowed. S 9 provides that a person who has previously been married or if this
person has been a party to a registered partnership shall not be allowed to enter into a marriage
as long as the former marriage or registered partnership exists.
According to the MCA 1973, bigamy is not made a ground or a fact for divorce nor is it referred to
as an act which may be relied upon under the behaviour fact. Bigamy is referred to under nullity of
the MCA 1973 that is s 11(a)(ii) of the Act from which it follows that the second marriage will
simply be deemed void.
Child abduction also seems to constitute a remarkable difference between the countries as it is a
ground for divorce in Denmark, but not in England; it has not been made a fact under the MCA
1973 either. Whether it could be relied on as fact under section 1(2)(b), the behaviour fact,
probably depends on whether precedent can be found in case law.
62
5.1.5 Wording of the Acts
The wording of the divorce law in England is considered to be misleading and confusing, because
irretrievably breakdown of marriage is the sole ground, however, insufficient in itself to constitute
the basis for obtaining a divorce as one or more of the five facts, mentioned above, must also be
established to prove the ground329. According to Cretney, the English divorce law is thus in a state
of confusion as it is misleading, outdated and excessively legalistic. It seems difficult to the laity to
understand that although their marriage has broken down they are not able to obtain a divorce
without further proof of one of five facts. It may also seem strange to a couple that they do not
have to show that the fact alleged is the reason to the breakdown of the marriage. The fact may
indeed be a symptom of the breakdown rather than the cause. Therefore, the law does not allow a
couple, in a civilised manner, to terminate a relationship that is no longer viable where it seems
obvious that there is no clear reason or fault for its breakdown330. From that perspective, the
language use in s 1(4) seems very confusing. If irretrievable breakdown of marriage is not
necessarily to be established by one of the facts, then how should it be established?
As focus is still on the dichotomy of fault/no-fault-based 'grounds', the English divorce law may be
considered a hybrid made up of fault and no-fault 'grounds'331. The matrimonial offence doctrine
is thus still inherent in the Act and is in fact particularly prevalent, as the fault-based facts are
mentioned first as well as the most commonly used. The above-mentioned matrimonial offence
doctrine is not just established on the basis of the substance and content of the sections alone,
but is also reflected in the way the sections are worded and formulated. This becomes particularly
obvious in s 1(2)(a),(b) and (c), '...unless the petitioner satisfies the court... that the respondent has
committed... has behaved... and ...has deserted...'. Although the ground for divorce is indicated in
the headline of section 1 of the Act, the facts are not. This makes them less easy to find and thus
probably requires more reading on the part of the user of the Act.
The difficulty involved in establishing the ground and the following facts is thus illustrated by and
reflected in the significant number of long provisions set out, especially in section 2, and the
complexity and accuracy of the language use. Hence, the Act does not address the spouse in a
direct, informal and easily accessible language. By way of examples, this is reflected by the use of
nominalisations, for instance, in s 1 'Divorce on breakdown of marriage'. The legalese language use
in s 1(1) 'Subject to section 3...', which, in addition, also requires the spouse to refer to and read
section 3 before he may proceed. Furthermore, the language use in section 3 is negatively loaded,
'Bars', and 'No petition'. Finally, the spouse is also frequently referred back and forth to other
sections, which is likely to complicate understanding. It seems that the connection, or lack of
same, in s 1(2)(a) between adultery and intolerability, and likewise in s 1(2)(b) between behaviour
and reasonableness cannot be directly inferred from the provisions.
329
Herring, Jonathan. op.cit., p. 115.
Ibid. pp. 115-116.
331 Standley, Kate. op.cit., p. 148.
330
63
The wording of the DACLFDM 2007 may be characterized as relatively abstract and short. The
sections seem updated and held in a relatively non-legalese language. This makes it appear clear
and simple to understand. One of the main reasons may be that the Act operates only with
grounds for divorce which need no further proof. Furthermore, every section is provided with a
headline indicating the ground for divorce which is treated under the particular section e.g.
'divorce after legal separation' (skilsmisse efter separation). This headline structure seems to
provide a good overview and easy access to the sections. Another reason may be that, although
some of the grounds are considered fault-based, the hybrid thinking of fault versus no-fault, found
in the English divorce law, is not really present in the Danish divorce law to the same extent. It
may thus be suggested that the relatively insignificant role played by the fault-aspect seems to
have enabled the use of a less complex language. By attaching less importance to the fault-based
aspect – which is also indicated by the fact that the no-fault-based grounds are mentioned before
the fault-based grounds - the language use also becomes less accusatory. A third reason could be
the relatively short length of the provisions and the simple and informal language use by which the
spouses are addressed in a relatively direct and positive style with focus on the spouses' rights. By
way of examples, this is illustrated by the consistent use of 'A spouse is entitled to...' ('En
ægtefælle har ret til...') in the beginning of every sentence of the selected sections. Moreover, the
spouses are not being referred back and forth to other sections, and the sections may be read in a
relatively fluent and uninterrupted way. Hence, compared with the MCA 1973, the DACLFDM 2007
does not seem to give rise to the same confusion and incomprehensibility.
5.2 Existing procedure for obtaining a divorce in England and
Denmark
In England, the divorce procedure depends on whether the divorce case is undefended or
defended. Where the divorce is undefended, it will be covered by the 'special procedure', which is
basically an administrative procedure according to which the relevant documents are lodged at
the court and read by a district judge, who will, if he is satisfied that all is in order, grant the
divorce decree. Although the decree is pronounced in open court, it may be pronounced without
the attendance of the parties; the pronouncement is simply a mere formality. In reality, this
implies that the judge can do no more than go through the few documents before him lodged by
the parties. In actual fact, the judges have been asked to disregard, to a large extent, the
provisions of s 1(3) of the MCA 1973 332. Hence, as a result of the widespread use of the 'special
procedure', divorce has in undefended cases few of the attributes traditionally associated with
adjudication, although in legal theory, divorce is still the result of a judicial process333. On the
other hand, where the divorce is defended – which is rare - there will be a hearing of the
332
333
Cretney, Stephen. 1992. op.cit., p. 33.
Ibid. p. 34.
64
petitioner's claim and the respondent's defence in open court. However, as can be seen, both
procedures still remain a preserve of the courts, thus, a judicial process.
In Denmark, a distinction between undefended and defended divorce cases, as it exists in England,
is not made to the same degree. The most obvious explanation is probably that legal separation is
the most commonly used ground for divorce in Denmark. Consequently no real motive for
contesting the divorce exists. In England, the fault-based facts of adultery and behaviour are still
the most commonly used and may as such constitute a motive for defending a divorce, although it
happens only rarely. Hence, a Danish counterpart of the English distinction between undefended
and defended divorces does not really exist. Instead, in Denmark the distinction relates to the
spouses' ability to reach agreement on a certain number of terms in connection with the divorce,
as the Danish divorce procedure is based on an agreement system, and not so much to the
allegations made with regard to the establishment of a valid ground for divorce. This implies that,
where the spouses agree, divorces are heard under the jurisdiction of administrative rather than
judicial tribunals. The latter only has competence where the Regional State Administration finds it
objectionable to grant an administrative divorce decree.
In England, in line with the overall judicial procedure applicable to both undefended and defended
divorces, the divorce petition is the central document in divorce cases and must be lodged with
the courts.
In Denmark, in line with the administrative agreement system, the divorce petition is no longer the
central document as it no longer applies. Instead, any applications for divorce must always be filed
with the Regional State Administration, never with the courts. In the rare cases where the parties
fail to reach agreement and the judicial procedure therefore is the last resort, the Regional State
Administration, not the spouses, will bring the case before the court.
In England, the divorce decree is pronounced in two parts and at two different stages in the course
of the divorce process. The first part is the decree nisi. After a certain period of time, the spouses,
often the petitioner, may then apply for a decree absolute to be pronounced. Thus, the decree nisi
is pronounced at a time where the ground for divorce has already been established. The purpose
of the time gap between the decree nisi and decree absolute is to enable the respondent to
appeal or other persons to intervene.
In Denmark, this two-part process does not exist, and it must not be confused with the Danish
procedure for granting an administrative/judicial legal separation decree (separationsbevilling/dom), which is a legal document providing the spouses with a ground for divorce, and the
subsequent grant for an administrative/judicial divorce decree (skilsmissebevilling/-dom). In
contrast to the time gap imposed on the spouses by the provisions of the MCA 1973, the legal
separation period, in Denmark, is intended as a 'trial' divorce offering the parties some time for
reflection.
65
Another obvious difference is the different legislations governing the provisions regulating the
divorce procedure334. In Denmark, they are mainly incorporated into the Danish divorce law,
DACLFDM 2007. In England, they are not incorporated into the MCA 1973, but instead set out in
the FPR 1991. It may give rise to some surprise that the provisions for the two-part process of
decree nisi and decree absolute are stipulated in s 1(5) of the MCA 1973, and not as could
probably be expected in the FPR 1991 since they seem closely related to the procedure. Their
incorporation into the MCA 1973 seems to contribute to further and unnecessary confusion.
However, in favour of their incorporation into the MCA 1973 it could be argued that it would
probably be dissatisfactory for the spouses not to learn about this two-part process until the
commencement of the divorce procedure335.
Finally, in England there seems to be a striking mismatch between substantive law, the grounds
for divorce, and procedural law, the procedure for obtaining a divorce. The reason seems to be the
misleading constellation of a confusing and complex, and at times, incomprehensible substantive
law exercised within a procedural law process that is best described as an administrative
registration procedure in which no investigation of the truth is set in motion unless there are
circumstances which give rise to suspicion336. This means that the court is allowed to disregard the
provisions of s 1(3) of the MCA 1973337. Put differently, the current law presents a clever fiction
namely, that it appears very difficult to divorce, but in fact it can be quick and easy to do so by the
'special procedure'338. Cretney calls the 'special procedure "...a mockery of the law's traditional
insistence that, e.g., adultery is a serious matrimonial offence which accordingly requires a high
standard of proof, but which is not established'339. Glendon also claims that focus is on procedure
rather than substantive law, and that this focus combined with the confusing construction of a
complicated substantive law exercised by an administrative procedure in a judicial framework
causes family law in England to have an entirely different appearance from its Continental
European counterparts in that family law in England clearly shows the reluctance of English law to
establish clear rights340.
A similar mismatch between substantive and procedural law does not seem to exist within the
area of the Danish divorce law. Here, a relatively simple and easily comprehensible substantive
law appears to be exercised within a similarly simple and informal administrative procedural
process.
334
Sections 37 to 43 of the DACLFDM 2007. https://www.retsinformation.dk/Forms/R0710.aspx?id=31944
See introduction of section 4.2 of this thesis.
336 Cretney, Stephen. 1992. op.cit., p. 33.
337 Glendon, Mary Ann. op.cit., p. 156.
338 Herring, Jonathan. op.cit., p. 125.
339 Cretney, Stephen. 2003. Principles of Family Law. op. cit., p. 278.
340 Glendon, Mary Ann. op.cit., p. 85.
335
66
5.3
Sub conclusion
In both England and Denmark, the existing grounds for divorce as well as the procedure for
obtaining a divorce are regulated by legislation. Nevertheless, the comparative analysis of these
two areas of the two countries' divorce law reveals a significant number of differences both in
substance and in tone.
Hence, the MCA 1973 provides for a two-step process of proof, namely the proof of irretrievable
breakdown of marriage on the one hand and the proof of one or more of five facts on the other.
This has led to a description of the English divorce law as being confusing. The complex and exact
wording of the MCA 1973 is probably also a contributable factor to this state of confusion. The
distinction of fault/no-fault is also still inherent in the MCA 1973, and the two fault-based facts of
adultery and behaviour are the most commonly used 'grounds' for divorce probably because they
allow a couple to obtain a quick and easy divorce. The English procedure for obtaining a divorce
depends on whether the divorce case is undefended or defended. Where the divorce is
undefended, it will be covered by the special procedure, which is basically an administrative
procedure although the divorce decree is pronounced in open court. Where the divorce is
defended – which is rare - there will be a hearing of the petitioner's claim and the respondent's
defence in open court. Both procedures still remain a preserve of the courts in which the petition
remains the central document. In addition, the divorce decree is pronounced in two parts, the
decree nisi and decree absolute. Seen in this perspective, it was argued, there seems to be a
mismatch between substantive and procedural law in England in that in outward form English
divorce law still attempts to emphasise the institutional solemnity of marriage by insisting that it
can be ended only by a judicial pronouncement. It seemed, however, that the reality is that most
of the procedural steps on the road to divorce has become administrative and automatic even
though it is still complex.
In Denmark, the DACLFDM 2007 only provides for grounds for divorce. These are sufficient in
themselves as grounds and thus do not require further proof. Together with a simple and easily
understandable wording of the Act this may be the reason why the Act appears relatively clear and
easily accessible. The distinction between fault/no-fault does not really exist in the Act, as the nofault-based ground of legal separation is the most commonly used ground probably as it provides
a couple with a relatively quick and easy divorce. In Denmark, a request for divorce is always
presented to an administrative authority; the Danish Regional State Administration which will
grant an administrative divorce decree, if the spouses agree on certain terms. Thus, the divorce
petition is not the central document in a Danish divorce case. In Certain cases, however, the
Danish Regional State Administration may bring the case before the court. Seen from this point of
view, it was argued, there seems to be a better match between substantive and procedural
divorce law in Denmark.
67
6 Analysis and discussion of why the established
differences exist
In the following chapter, attempts will be made to determine why the differences established in
the comparative analysis exist. As stated in subchapter 1.2, the research areas will be the legal
system, also referred to as the legal system/culture argument, and the historical development of
the divorce law, also referred to as the historical development argument, of the two countries.
The headline structure of chapter 5 will not be applied in this chapter. The reason is that the
arguments and explanations for the existence of the established differences overlap to a very high
degree.
As noted above, the comparative analysis carried out in chapter 5 revealed a number of
differences between the existing divorce law of the two countries. Thus, from the findings in
subchapters 3.3 and 3.4, it may be suggested that the reason for the English divorce law's state of
confusion as a result of the complicated and misleading system of dual proof of both ground and
facts, on the one hand, and the Danish divorce law's state of non-confusion, on the other hand, is
attributable to the historical development argument. As established in subchapter 3.3, there has
been an incessant conflict between proponents and opponents of divorce reform in England from
around the 1930s and until the passing of the MCA 1973. Although an agreement was reached in
the late 1960s between the Archbishop's group and the Law Commission eventually, it did indeed
reflect a compromise between two groups which carried fundamentally different views on
divorce. As also mentioned earlier, it was of utmost importance to the Archbishop's group that
breakdown of marriage was not made an additional ground for divorce, but that is was made the
sole ground which was to be inquired into by the court341. But as Cretney asks in one of his books:
"Was that what the compromise provided, or did it rather use the language of breakdown to
disguise the addition of the separation facts to the existing grounds for divorce and in that way
add to the confusion surrounding the divorce law?" 342. In contrast to the situation in England, the
secularization and reformation of various Danish institutions, including the courts, happened more
decisively and more profoundly in Denmark. Thus, at the time of the passing of the DFDMA 1922
both actual and legal separation had, for some time already, been established and accepted as a
legal remedy. Although guilt and fault were still to some extent inherent in both the DFDMA 1922
and DFDMA 1969, the early introduction of actual and legal separation seems likely to have paved
the way for a rather linear and non-controversial development of a divorce reform leading in the
main to a relatively permissive and non-confusing existing divorce law.
341
342
Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 366.
Ibid.
68
Similarly, the historical development argument also seems to hold true for the English divorce
law's appearance as a hybrid made up of fault and no-fault-based facts. Indeed, the first English
judicial divorce law, the MCA 1857, was passed at a time where fault constituted the only basis for
divorce and during which the concept of separation in its present form was hardly subject to
debate. Furthermore, it seems that the state's interest in saving the institution of marriage,
probably in order to preserve social stability, was still prevalent at the time of passing of the MCA
1973, and that this is likely to have been a contributory factor in retaining the fault-based facts.
However, the existing separation facts, the one-year bar on marriage and the court's duty to
inquire into the facts as well as the court's relatively harsh approach to the definition of living
apart were probably all part of the previously mentioned compromise made in the late 1960s. As
Herring explains: " the more liberal the interpretation given to living apart, the closer the law was
to accepting divorce on demand, which was and still is not provided for in the statutes and which
conflicts with the state's interest of saving the institution of marriage"343.
As noted above, although fault still played an important role in divorce matters in Denmark at the
time of the passing of the DFDMA in 1922, the relatively early introduction of legal separation
made the fault-based aspect and the detailed inquisitorial investigation, required by the English
Common law judges to establish breach of marriage (ægteskabsbrud), seem uninteresting and,
over time, more or less irrelevant344. The rather liberal interpretation of living apart provided for in
the Danish Act345 can probably also be ascribed to the historical development of the Danish
divorce law, since it seems that the Danish state has not attached the same importance to the
saving of marriage as seems to have been the case in England. Again, this is probably due to the
relatively early and decisive secularization of the Danish society by which marriage was considered
a matter between the spouses based on the principle of equality with regard to rights as well as
duties and with which the state should not interfere346.
As to the procedure for obtaining a divorce, the explanation for the introduction of the special
procedure in England and the mainly administrative procedure in Denmark also seems to find
support by the historical development argument, at least partly. As stated earlier, the divorce rate
had risen dramatically in England after the two world wars and after the passing of the Divorce
Reform Act 1969. This imposed an immense workload on the English courts. In Denmark, once
again the rather decisive secularisation at an early stage in history and the focus on family
ideology at the turn of the last century appear to have paved the way for the introduction of
administrative legal separation and divorce already before the passing of DFDMA 1922 and
thereby laying the foundation for the existing administrative procedure.
343
Herring, Jonathan. op.cit., p. 113.
Andersen, Ernst. op.cit., p. 152.
345 Lund-Andersen, Ingrid. op.cit., p. 188.
346 Andersen, Ernst. op.cit., p. 11 and Pedersen, Inger Margrete. (1971). Recent Trends in Danish Family Law and Their Historical
Background. The International and Comparative Law Quarterly, 20(2), p. 333.
344
69
However, if the findings in subchapter 3.1 are considered, it may be suggested that also the
English legal system of Common law may help explain why the English divorce law is in a state of
confusion and why it appears a hybrid made up of fault and no-fault-based facts as it seems that
the retention of the 'old' fault-based facts provided the judges with the right and possibility to
apply the rule of precedent to retrieve the legal rule as the basis of their decision. In that way,
they have managed to keep not just some of their judicial power, but also their former
indisputable law-making power. Likewise, it may be suggested that the establishment of the
confusing and complicated system of dual proof seems to have ensured the judges their status
and reputation as an authoritative figure as this system gives the judges broad discretionary and
interpretative powers, as the system appears incomprehensible to lay people.
Along similar lines, the Civil law tradition may also provide some answers to why the existing
Danish divorce law appears far less confusing with regard to the grounds for divorce as well as less
dominated by the aspect of fault versus no-fault. As stated earlier, in the Civil law tradition the
judge is considered a civil servant whose job it is to administrate the law, mainly. This means that
as a rule, he does not have law-making power and therefore probably does not fear interference
by the legislative power in the law-making process in the same sense as does the Common law
judge. However, if the Acts are so abstractly worded that the Danish judges are compelled to
consult the preparatory work of the Danish parliament (Folketinget) to find answers to unclear
legislation every time they have to make a decision, they would probably fear this interference as
it would risk undermining their decision-making power after all. Nevertheless, it seems that the
Civil law judge is more inclined to see and accept the legal process as part of a greater societal
process in which focus is on creating an understandable and accessible law that is prepared to
embrace future situations and provide certainty for its users as noted in subchapter 3.1.
Another area in which it was suggested that a difference exists between the two countries was
with regard to the wording of the Acts. With the legal system of Common law as the point of
departure, it seems that the relatively long, complex, exact, legalese and negatively loaded
wording of the MCA 1973 may be directly linked hereto. Based on the findings in this study, the
English judges were, from earliest times, very critical of the interference by the legislators with the
Common law as they feared they had to give up on their high-ranking position as the law-making
power. Therefore, they had a distinct tendency of assigning a narrow and accurate interpretation
of the statutes as they attached almost all importance to the wording of these. As a consequence,
they required that the legislators formulated the statutes in a clear, exact and precise language. In
that way, the power of interpretation remains the preserve of the judges and thus constitutes a
guarantee for their inherited powers in a time in which legislation steadily finds acceptance in the
English Common law. Nevertheless, although legislation accounts for a large part of English law
today, most English legislation still builds on judge-made law, which means that Common law still
dominates English law to a very large extent347. As Cretney explains: "It was of significant
importance that the precise terms were chosen in order to convey the proposals expressed in the
347
Lando, Ole. op.cit., pp. 89 and 92.
70
compromise between the Archbishop's group and the Law Commission in the 1960s into a
language which the courts could interpret in compliance with Common law principles"348.
On the other hand, the relatively abstract, clear, short, rather non-legalese and positively loaded
wording of the existing Danish divorce law is probably also attributable to the principles behind
the Danish legal system of Civil law. As mentioned in subchapter 3.1, the high level of abstraction
aimed at in the Civil law tradition means that the principles developed by Civil law professors and
scientists are to a high degree taken out of their factual and historical context and are lacking in
concreteness according to Merryman349. Along the same lines Merryman also argues that the ends
of law that is justice e.g. is not of interest to the Civil law tradition. And he continues stating that
what is of interest to the Civil law judges is a highly artificial body of doctrine that is isolated from
what is taking place in the rest of society350. Although Merryman may be right in his description of
the Civil law judge, he makes it sound as if the aim of Civil law legislators is solely to create an
abstractly worded legislation without consideration for public opinion. But he may have
overlooked the fact that Civil law judges, in contrast to the Common law judges, normally attach
much importance to the preparatory work of the parliament. This means that the judges do
probably not require the same accurate wording as does the Common law judge to interpret an
act351. Moreover, this insight into and use of the preparatory work could be a way for the Civil law
judges to exercise some control over the legislators. On the other hand, Sundberg believes that
the Civil law judge is inclined to view the legal process as part of a greater societal process. The
two authors' differing views are not surprising if their different backgrounds of Common and Civil
law, respectively, are considered. Based on the above and the findings in subchapter 3.1, it may
be suggested that the Danish legislators have been less obliged to take into account the interests
of the Danish judges and that of the Danish state when preparing the existing Danish divorce law.
This may have enabled the design of a clear and understandable Act in which focus is on the intent
of the Act and not on the wording.
Another difference in connection with the wording of the Acts was the absence and presence of
the word 'rights' in the English and Danish Act, respectively. This difference is suggested to be
ascribable to the legal system/culture argument. As Legrand points out, the word 'rights' is used
quite differently in the two legal traditions. In the Common law tradition a person has no rights
unless he has a cause of action under the old system of writs. That is to say that the point of
departure for any legal action in England is the existence of a wrong, not that of a right. In the Civil
law tradition, on the contrary, the object of legal science is the 'right', particularly the subjective
right352. This may explain the positively loaded wording of the Danish Act and the negatively
loaded wording of the English.
348
Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 366.
Merryman, John Henry. op.cit., p. 64.
350 Ibid. p. 65.
351 Lando, Ole. op.cit., p. 92.
352 Legrand, P. op.cit., p. 71.
349
71
As stated earlier, the explanation for the introduction of the English special procedure was partly
based on the historical development argument. However, the legal system/culture argument may
probably also provide some explanations when attempts are made to answer the question why
England has retained the special procedure, which is basically an administrative procedure, within
a legal framework, thus preserving divorce a judicial process? The old Common law system of writs
in which focus was on procedure rather than substantive rules353 could probably provide an
answer. The preservation of the special procedure could be interpreted as an attempt by the
judges to preserve what was left of their long-standing central position in the English legal system,
and, as also noted by Sundberg in subchapter 3.1, perhaps because the court-room perspective is
the only perspective known to the Common judges. Sundberg also postulates that the Common
law perspective has always been to view the legal evolution less as a means of governing relations
between people than as a courtroom game thus treating legal matters remote from the centre of
interest354.
It may also be suggested that the historical development argument does not solely hold as
argument for the existing Danish divorce procedure as indeed the legal system argument also
seems to provide some valid answers. For instance, it is suggested that the late introduction of
legal university studies in the mid-18th century in Denmark seems to have resulted in an
undogmatic approach to law by the Danish legislators. In addition, as pointed out by Merryman,
the less important position and less moralistic attitude of the judges in the Danish legal system
and the Danish legislators' immunity to the ethic of time and place seem to have made room for
the development of the substantive law rather than focusing on the procedural law355. It may thus
be suggested that the above factors combined with the earlier stated explanations supported by
the historical development argument have enabled the creation and application mainly of an
administrative procedure which is designed for the execution of a clear and easily understandable
substantive divorce law outside of court.
As a former professor of jurisprudence at the University of Stockholm356 and as a child of the Civil
law tradition, Sundberg may be inclined to stress differences and his statements are therefore not
surprising. His language use, e.g., 'courtroom game', when describing the Common law tradition
may appear rather condescendingly and could be an expression of Sundberg's belief in the
superiority of the Civil law tradition over the Common law tradition.
Likewise, the view taken by Merryman does also not appear to be surprising either considering his
affiliations with the Common law tradition. Like Sundberg, Merryman also refers to the Civil law
tradition in a language use that could be described as rather provocative e.g., 'immunity to the
ethic of time and place' thus probably trying to manifest the superiority of the Common law
tradition compared with the Civil law tradition. However, their statements seem to find support by
353
Glendon, Mary Ann. op.cit., p. 85.
Sundberg, Jacob. W.F. op.cit., p. 197.
355 Merryman, John Henry. op.cit., p. 123.
356 http://www.nkmr.org/english/coddington_letter.htm
354
72
Lando, who argues in a more neutral language though that the substantive rules are superior to
procedural rules in the Civil law tradition357. Although Lando's statements appear less 'coloured',
he still seems to be inclined to favour the Civil law tradition's way of interpreting and dealing with
legal matters. This seems to be reflected in his description of the Common law rules as rigid and
the Common law as a patchwork358.
To understand the language used by Sundberg and Merryman, and Zweigert for that matter, it
should be noted that all three authors belong to a generation born at the turn of the past century
and that their language use may to some degree simply be an expression of their relatively high
age (Zweigert deceased in 1996359) and their life and education in a time in which the dividing lines
between the Common and Civil law traditions were probably far more distinct thus making the
prospects of convergence between the two traditions seem far more remote in peoples' minds
than it may do today.
The final discussion point in this chapter will be that of legislation. As mentioned earlier, the
divorce law of both countries is governed by legislation and as such constitutes an area in which
the two countries do not differ. It is suggested that the explanation for this similarity is primarily to
find support by the legal system/culture argument. It seems that the reason why the Danish
divorce law is regulated by legislation may be linked to one of the basic principles behind the Civil
law tradition namely, codification. In England, on the other hand, non-codification has for
hundreds of years been one of the central principles of the Common law tradition and the primary
building block of English law. It seems that Common law thinking still plays a large role in the way
English law is designed as the unwritten English constitution derives its concepts from Common
law principles. Basically, this also means that the authority of the English Parliament is legitimised
by Common law360. Seen in this perspective, it may give rise to some surprise that the English
divorce law is in fact regulated by legislation. The reason is probably that, in the course of time,
the Common law tradition has slowly realised and accepted the need to systematise the judgemade (non-codified) provisions in order to provide structure and understanding. Besides, the
practice of Canon law, which is originally based on Civil law thinking, in the ecclesiastical courts in
Medieval Times in both England and Denmark, has probably also played an important part in the
codification process of the English divorce law.
As appears from the above analysis and discussion it is suggested that some of the differences
seem to be mainly attributable to the historical development argument, others seem mainly to
find support by the legal system/culture argument. What also seems to be clear is that many of
them may be ascribable to both arguments, however, with an overweight being attributable to the
legal system/culture argument. This analysis seems to be in line with the views expressed by the
357
Lando, Ole. op.cit., p. 92.
Ibid. pp. 90 and 95
359 http://de.wikipedia.org/wiki/Konrad_Zweigert.
360 Cotterrell, Roger. 1989. op.cit., p. 32, and Edlin, Douglas E. op.cit., p. 204.
358
73
authors treating this subject matter since they seem to be split when it comes to establishing
where the differences lie.
As already mentioned in subchapter 3.2, Friedman and Legrand seem to favour, as do also
Zweigert, Sundberg and Cotterrell in part, the legal system/culture argument in that they believe
that the explanations for the established differences lie primarily across the axes of the
Common/Civil law dichotomy also referred to as the legal system/culture argument.
Both Cotterrell and Zweigert suggest that the explanation for most of the differences between the
existing English and Danish divorce law is that, despite the fact that English modern law is
predominantly legislative in origin, England has more than any other country been more
consciously connected to their past. England has also been more attached to traditional forms of
legal thinking despite social and economic change361. Therefore, Common law thought still exerts
fundamental influence in most jurisdictions in England as well as continues to overshadow the way
the English teach, write and think about law362. Furthermore Zweigert takes the view that since
English judges are appointed from a restrictive group of successful lawyers, which gives them the
disadvantage of having an extremely conservative mindset, they have enjoyed a successful career
and are therefore not disposed to criticise and reform the environment that shaped this career.
This conservative mindset and independence have led the English judges to adopt an obstinate
attitude to modern social legislation and give an excessively restrictive construction to many of
their provisions contrary to the wish of Parliament and social trends363.
As a former professor of private and comparative law and as a former judge at the German
constitutional court (Bundesverfassungsgericht/Den tyske forfatningsdomstol)364 Zweigert's
support for the legal system/culture argument does not really come as a surprise. He is by many
students and readers of comparative law seen as the embodiment of the comparative law theory.
He is not just a child of the Civil law tradition in general but in particular of the German string of
the Civil law tradition which favours ultimate systematisation and structure and thus opposes the
fundamental principles of the Common law tradition. This may have inspired Zweigert to describe
the Common law tradition in a somewhat slightly flattering language. Or perhaps it is simply a way
to draw an unmistakable line between the two traditions in order to further understanding by way
of contrast.
As just mentioned, the legal system/culture argument is also supported by Sundberg, who claims
that the factor that really matters when trying to establish differences and/or similarities between
the laws of two different countries is what he refers to as the genetical factor365 as it tends to
control peoples' way of thinking. And this control is greater than many would like to believe simply
361
Zweigert, Konrad. op.cit., p. 181.
Cotterrell, Roger. 1989. op.cit., p. 21.
363 Zweigert, Konrad. op.cit., p. 210.
364 http://de.wikipedia.org/wiki/Konrad_Zweigert.
365 According to Sundberg, the genetical factor should be seen as an expression of the way law has been taught for many
generations within different legal systems. Sundberg, Jacob. W.F. op.cit., p. 183.
362
74
because legal training teaches us not only what to do but also, an even more so, what not to do. In
this process, other ways of thinking get blocked366.
Also, both Friedman and Legrand argue that family law including divorce law is embedded in legal
culture or what is also refers to by Legrand as legal mentality, and that this comes to dominate the
development of the law of a country to a very high degree367. Their view may reflect their wish to
stress differences in order to preserve diversity, the Common law identity that is, as they are both
children of the Common law tradition368 and in the end their jobs as professors of Comparative
Law.
In contrast to the legal system/culture argument stands Boele-Woelki who favours the historical
development argument as she talks about a historical progressive-conservative dichotomy of
family law ideology369. She suggests that family law which is built upon a conservative ideology is
often more restrictive and reluctant to modernisation than is a family law built on the progressive
ideology. She further states that the family law of a country is either a reflection of the
predominant values of the majority ideology or some kind of compromise between the
progressive and conservative ideology370. She uses this theory in an attempt to explain why
differences between the divorce law in European Common and Civil law countries exist.
Surprisingly, Boele-Woelki claims on the other hand that the history of family and divorce law
clearly shows that the choices made in the context of family law reforms, and the political debates
on these reforms, have always and still very much are the same on the continent as in England371.
This claim appears to conflict with the findings of this thesis in which it is suggested that the
political debates on divorce law reforms seem to have been much more contentious and
controversial in England than in Denmark. Boele-Woelki may probably not have paid particular
attention to the development of the divorce law reform in Denmark, or she may not have
attached sufficiently importance to it to realise the differences. Her support for the progressiveconservative dichotomy argument may be ascribed to her work as a professor of Comparative Law
and Family Law. It could seem that Boele-Woelki belongs to the integrationalists group of
comparative lawyers who would prefer to stress similarities as she appears to be quite devoted to
working with a prospective harmonisation of family law in Europe - perhaps with the hidden
political agenda of becoming part of this future harmonisation work. Or perhaps she is just an
ardent European federalist who views Europe as a homogeneous whole compared to the rest of
the world. In that way, she is probably forced to reject the legal system/culture argument. It could
also be that she is simply committed to oppose the legal system/culture argument put forward by
some authors.
366
Ibid. pp. 182-183.
Legrand, P. op.cit., 1996.p. 62. See also section 3.2 of this thesis, note 126.
368 http://jura.ku.dk/forskning/nyheder/pierre_legrand/pierrelegrand_sidstefinal.pdf/ and
http://www.nesl.edu/students/full_time.cfm?id=15
369 Boele-Woelki, Katharina. 2009. op.cit., pp. 41-43.
370 Ibid.
371 Ibid. p. 47.
367
75
6.1 Sub conclusion
In this chapter attempts have been made to analyse and discuss why the differences established in
the comparative analysis exist.
Thus, it was suggested that some of the differences may best be ascribed to the historical
development argument yet others may best be ascribed to the legal system/culture argument.
Nevertheless, what also seemed to be clear was the difficulty attached to drawing a distinct
dividing line between these two arguments. This seemed to be relatively clearly illustrated by the
discussion in connection with the state of confusion of the English divorce law as a result of the
system of dual proof, for example. As Cretney asked, was this state of confusion the outcome of
the compromise between two opposing groups on divorce in the late 1960s or was it the corollary
of the Common law principle of a long, complex and exact wording, or was it a combination of the
two?
However, to judge from the findings in this study and the number of authors who favour the legal
system/culture argument, it seems reasonable to suggest that the differences lie in the legal
system primarily, and that this has infiltrated and thus dominated the decisions made within
divorce matters throughout the historical development of the divorce law in both England and
Denmark to a very high degree.
76
7 Conclusion and perspectives
In the introduction, it was stated that until recently obtaining a divorce was a rather complicated
affair compared to getting married in both England and Denmark. But things have changed over
time, and getting divorced today is a relatively uncomplicated affair in both countries, in legal
terms at least. Thus, despite the complex and confusing English divorce law, Cretney argues that it
is hardly an exaggeration to say that divorce is now a relatively simple affair that involves less
formality than marriage372.
Nevertheless, although getting a divorce has become easier in the course of time, not least
because of the passing of a divorce law in both England and Denmark, the comparative analysis of
the grounds for divorce and the procedure for obtaining a divorce carried out in this study reveals
some significant differences both in substance and in tone.
Hence, based on the established differences in the comparative analysis, the overriding purpose of
this investigation was an attempt to determine why these differences exist.
By making the legal system (also referred to as the legal system/culture argument) and the
historical development of the divorce law (also referred to as the historical development
argument) in the two countries the basic research areas, the findings in this study suggested that
the established differences could be ascribed to either or both areas as was also suggested in
subchapter 1.2.
However, it seemed that a clear dividing line between these two arguments or research areas was
not always easy to draw as many of the established differences seem to lie in both areas. This was
clearly illustrated by the discussion on the state of confusion of the English divorce law. As Cretney
asked, was this state of confusion the outcome of the compromise between two opposing groups
on divorce in the late 1960s or was it the corollary of the Common law principle of a long, complex
and exact wording, or was it a combination of the two?
Although Boele-Woelki suggested that the differences are mainly to be found in the historical
development of the progressive-conservative dichotomy of family and divorce law ideology there
seemed to be an overweight of authors who were inclined to believe that the most important
differences lie in the legal culture or legal mentality of the Common and Civil law tradition and
that the legal culture has come to dominate the development of the divorce law of the two
countries to a very high degree. This view also seems to find support in this study as it appeared
that the legal system/culture argument was predominant and thus has infiltrated and dominated
the decisions made within divorce matters throughout the historical development of the divorce
law in both England and Denmark.
372
Cretney, Stephen. 1992. op.cit., p. 35.
77
Furthermore, based on the outline of the legal systems in subchapter 3.1, it was also suggested
that not only do the legal systems differ with regard to the individual criteria characterising them,
but also in that the Civil law tradition appears to be better prepared for a future reform of the
divorce law than appears to be the case with the Common law tradition.
With this in mind, it is hardly surprising that the Family Law Act 1996 (FLA 1996) which was an
attempt at reform of the English divorce law failed. As stated in section 3.3 of this thesis, the
intention of the FLA 1996 was to reduce the scope for allegations of fault, simplify the law on
divorce altogether while preserving the institution of marriage. On these grounds, some basic
principles with regard to saving marriages have been introduced and are in force under the FLA
1996, and most now be followed alongside the existing rules on divorce under the MCA 1973. This
combination of two acts conflicting on a number of basic principles may undoubtedly give rise to
difficulties and once again sacrifice the intent of the acts namely, that people should be able to
divorce without distress and humiliation373. This also seems to find support by Cretney who notes
that the intention of the FLA 1996 was concealed behind a comforting shield of consideration,
reflection, reconciliation and counselling periods imposed on the spouses by the state in an
attempt to save marriage374.
Seen in that light, it shall be interesting to see when England will succeed in introducing reforms
that would lead to the passing of a less confusing and misleading substantive divorce law and
which will comply with the existing procedural law. That said, the question is, however, whether
there is any real need for reform of the substantive divorce law at all, since procedural divorce law
already provides for a quick and easy divorce? As Cretney notes, in relation to divorce, procedural
change has, over the years, often had more impact on spouses' possibility of divorce than changes
in the substantive law375.
According to this study, it seems that the road to divorce reform in Denmark has not been paved
with the same insurmountable number of obstacles and challenges as seems to have been the
case in England. Consequently, it seems likely that further reform of the Danish divorce law will
not give rise to controversy the way it has been seen in England since the debate on divorce
reform will probably be confined to a discussion on further reduction of legal separation time.
Whether divorce on demand, that is getting a divorce without the establishment of a ground for
divorce but simply based on the mutual wish of the spouses376, will ever be introduced in
Denmark, remains to be seen.
373
Rodgers, M.E. op.cit., pp. 49-51.
Herring, Jonathan. op.cit., p. 125.
375 Cretney, Stephen. 2003. Family Law in the Twentieth Century. op. cit., p. 165.
376 Bøgh, Gunnar. op.cit., p. 44.
374
78
Along similar lines, however in a broader picture, another interesting perspective is a prospective
harmonisation of the divorce law in Europe. Boele-Woelki has broached this subject in her recent
book377. Here, she argues that the development of family law including divorce law is embedded in
a pan-European culture and history along the lines of the dichotomy of the progressiveconservative ideology argument mentioned earlier and not so much in the legal system/culture
argument of the individual country as argued by Legrand and Friedman among others378. On that
basis, Boele-Woelki is inclined to believe that a harmonisation is possible on the basis of the
existing family laws in Europe. She is, however, opposed by Zweigert who believes that, although
England and Continental Europe have become closer in past decades as regards techniques of
statutory construction, it seems that there is still a vast difference in statutory drafting as English
statutes adopt a form of expression that is so complex, long and exact that it is comprehensible
only to practitioners of the law at the expense of the clarity of the underlying principle and the
intent of the law379.
With this in mind and together with the findings of this study, it shall be interesting to see if and
how a deliberate future harmonisation process of the divorce laws in Europe will proceed.
Authors treating this area will undoubtedly continue their discussion on whether to attribute the
established differences to the historical development argument or to the legal system/culture
argument. As to this study, a reasonable conclusion could be that the two research areas, for a
large part at least, seem to be rather closely interlinked and nicely intertwined so that, although
there seemed to be an overweight of findings in this study and of authors favouring of the legal
system/culture argument, the full significance of each area on the design of the existing divorce
law in both countries can only be revealed when considered together as was also recommended
by Stone and Phillips in the introductory section of this study.
377
Boele-Woelki, Katharina. 2009. op.cit.
Legrand, P. op.cit., p. 62.
379 Zweigert, Konrad. op.cit., p. 267.
378
79
8 Summary
Despite the fact that England and Denmark each belongs to a separate legal system namely, that
of Common law and Civil law, respectively, both countries have undergone radical changes with
regard to divorce in the course of time. Thus, before the Reformation, both countries were
considered religious divorceless societies. After the Reformation on the other hand, although it
happened most decisively in Denmark, secularization caught on in both countries. This change
away from ecclesiastical beliefs and a divorceless society paved the way for the passing of the first
English Matrimonial Causes Act in 1857. In 1922 in Denmark, the Danish Formation and
Dissolution of Marriage Act 1922 (Lov om ægteskabs indgåelse og opløsning af 1922) was passed.
Before the 1922 Act, divorce and separation had already been allowed within an unregulated
framework to some extent in Denmark.
During the most part of the 20th century, it seems that the debates on divorce reform in England
were much more controversial and, hence, the reform of the English divorce law much slower and
less permissive than in Denmark. Although a number of changes were made to relax the divorce
law in both countries, it was not until 1969 that the English divorce law underwent a fundamental
general revision introducing the no-fault-based fact of separation for the first time. Likewise,
changes were also made to the Danish divorce law in 1969, although they were not as significant.
In England, the revised divorce law was enacted in the Matrimonial Causes Act 1973 which is the
existing English divorce law. Although the 1969 revised divorce law in Denmark is referred to as
the main divorce law, relatively significant changes have been introduced since then, and the
existing divorce law is the Danish Act to Consolidate the Law on Formation and Dissolution of
Marriage 2007 (LBK nr. 38 af 15/01/2007 om ægteskabs indgåelse og opløsning).
Despite the fact that it has been possible for some time now to obtain a divorce regulated by
legislation in both countries, this study's comparative analysis of the grounds for divorce and the
procedure for obtaining a divorce in the two countries reveals the existence of a remarkable
number of differences. Against this background, attempts have been made to find answers to why
these differences exist.
According to the findings, it is suggested that most of the answers can be found in the selected
research areas which are the legal system (the legal system/culture argument) and the historical
development of the divorce law (the historical development argument) of the two countries.
However, it seemed that a clear dividing line between the two research areas is not always easy to
draw as they overlap to a very high degree. An example is the discussion of the state of confusion
of the English divorce law. Was this state of confusion the outcome of the compromise between
two opposing groups on divorce in the late 1960s or was it the corollary of the Common law
principle of a long, complex and exact wording, or was it a combination of the two?
Although one author suggests that the differences are mainly to be found in the historical
development argument, there seems to be a majority of authors who are inclined to believe that
80
the most important differences lie in the legal system/culture argument and that this has come to
dominate the development of the divorce law of the two countries. This view also appears to be
supported by the findings in this study as it seems that the legal system/culture argument is
predominant and thus has fundamentally infiltrated and dominated the decisions made within
divorce matters throughout the historical development of the divorce law in both England and
Denmark.
Furthermore, it is also suggested that not only do the legal systems differ with regard to the
individual criteria characterising them, but also in that the Civil law tradition appears to be better
prepared for future reform of the divorce law than appears to be the case with the Common law
tradition. Together with the state of confusion of the existing English divorce law this seems to
have complicated the road to further reform in England. In Denmark on the other hand, this,
combined with a non-confusing existing Danish divorce, seems to have enabled successful reforms
on a continuous basis.
From that point of view, it shall be interesting to see when a divorce law reform leading to a less
confusing English divorce law, and which will be in compliance with the existing procedural law,
will be implemented in England, and whether the next step in Denmark, in this regard, will be the
introduction of divorce on demand.
Finally, the conclusion of this study briefly puts into perspective a prospective harmonisation of
the divorce laws in Europe. In that respect, with the findings of this study in mind, it shall be
exciting to follow the development of this future harmonisation process as well as the authors'
probable discussion in the future on where the differences lie.
81
References
Andersen, Ernst. 1971. Familieret. 3. udg. København: Juristforbundets Forlag
Arbejdsgruppe under Justitsministeriet. 1987. Separations- og skilsmissebetingelser,
betænkning nr. 1121. København: Statens Informationstjeneste
Barker, David and Padfield, Colin. 2001. Law made simple. 10th ed. Oxford: Elsevier
Bentzon, Viggo. 1916. Den Danske Familieret. 2.udg. København: G.E.C. Gad
Bird, Roger and Cretney, Stephen. 1996. Divorce. The New Law. The Family Law Act
1996. Bristol: Family Law
Boele-Woelki, Katharina. 2003. Perspectives for the Unification and Harmonisation
of Family Law in Europe. Antwerp – Oxford – New York: Intersentia
Boele-Woelki, Katharina. 2009. Debates in Family Law around the Globe at the Dawn
of the 21st Century. Antwerp – Oxford – New York: Intersentia
Bohr, Ole. 1970. Ægteskabet. Haslev: Gyldendals Oktavbøger
Bøgh, Gunnar. 1970. Ægteskabslov af 4.6.1969. København: Akademisk Forlag
Cretney, Stephen. 2003. Family Law in the Twentieth Century. Oxford - New York:
Oxford University Press
Cretney, Stephen. 1992. Elements of Family Law. 2nd ed. London: Sweet & Maxwell
Cretney, Stephen. 1998. Law, Law Reform, and the Family. Oxford: Clarendon Press
Cretney, Stephen, Masson, Judith M. and Bailey-Harris, Rebecca. 2003. Principles of
Family Law. 7th ed. London: Thomson
Cotterrell, Roger. 1989. The Politics of Jurisprudence. London and Edinburgh:
Butterworths
Curzon, L. B.2002. Dictionary of Law. Pearson Longman
82
Danielsen, Svend. 1989. Skilsmissesagen, Skandinaviske synsvinkler. København:
Jurist- og Økonomforbundets Forlag.
Dübeck, Inger. 1994. Introduktion til Dansk Ret. Baden-Baden: Nomos
Verlagsgesellschaft
Edlin, Douglas E. 2007. Common Law Theory. Cambridge University Press
Frandsen, Helle Pals. 2000. Juridisk ordbog, engelsk/dansk. København: Gads Forlag
Friedman, L. 1975. The Legal System: A Social Science Perspective. New York: Russell
Sage Foundation
Friedman, L. 1990. 'Some Thoughts on Comparative Legal Culture', in D. Clark (ed.),
Comparative and Private International Law. Essays in Honour of J. H. Merryman on
his Seventieth Birthday. Berlin: Duncker & Humblot
Glendon, Mary Ann. 1989. The Transformation of Family Law. Chicago and London:
University of Chicago Press
Graversen, Jørgen m.fl. 1980. Familieret. København: Juristforbundets Forlag
Herring, Jonathan. 2009. Family Law. 4th ed. Harlow: Longman Law Series
James, Philip S. 1985. Introduction to English Law. London: Butterworths
Koch-Nielsen, Inger. 1985. Divorces. in The Danish National Institute of Social
Research, Publication 148. København: Reproset
Lando, Ole. 2006. Kort indføring i komparativ ret. 2. udg. København: Jurist- og
Økonomforbundet
Legrand. P. (1996). European Legal Systems Are Not Converging. International and
Comparative law Quarterly, (45), pp. 52-80.
Lovbekendtgørelse nr. 38 af 15/01/2007 om ægteskabs indgåelse og opløsning 2007
83
Lund-Andersen, Ingrid. 2003. Familieret. 5. udg. København: Jurist- og
Økonomforbundets Forlag
Merryman, John Henry. 1985. The Civil Law Tradition. 2nd ed. California: Stanford
University Press.
Nelken, David. 1997. Comparing legal Cultures. Socio-Legal Studies Series. Aldershot
– Brookfield USA - Singapore – Sydney: Dartmouth
Nielsen, Linda og Vorstrup, Jesper. 2001. Familieretten. 3. Udg. København: Forlaget
Thomsen
Nielsen, Linda. 2008. Skilsmisseret – de økonomiske forhold. København: Thomson
Reuters
Nielsen, Linda. 2009. Familieretten. 5. udg. Gjellerup/Gads Forlag 2009
Pedersen, Inger Margrete. (1971). Recent Trends in Danish Family Law and Their
Historical Background. The International and Comparative Law Quarterly, 20(2), pp.
332-341.
Pedersen, Johannes. 1970. Den nye ægteskabslov. Næsby: Strandberg Bogtryk
Phillips, Roderick. 1988. Putting Asunder. A history of divorce in western society.
Cambridge – New York – New Rochelle – Melbourne – Sydney: Cambridge University
Press
Rasmussen, Nell. 2007. Lærebog i familieret. 2. udg. København: DIKE ApS
Ringgård, L. og Funch Jensen, H. 1966. Ægteskabsloven. 2. udg. København: G.E.C.
Gads Forlag
Rodgers, M.E. 2004. Understanding Family Law. Abingdon – New York: RoutledgeCavendish
Scholdager, Anne with Gottlieb, Henrik and Klitgård, Ida. 2008. Understanding
translation. Aarhus: Academica.
Shears, P. and Stephenson, G. 1996. James' Introduction to English Law. London,
Dublin and Edinburgh: Butterworths
84
Standley, Kate. 2006. Family Law. 5th ed. New York: Palgrave Macmillan Law Masters
Stone, Lawrence. 1990. Road to Divorce. Oxford: Oxford University Press
Sundberg, Jacob. W.F. 1969. Civil Law, Common Law and the Scandinavians.
Stockholm: Almqvist & Wiksell
The Matrimonial Causes Act 1973
Tamm, Ditlev. 1989. Lærebog i Dansk Retshistorie. Foreløbig udgave. København:
Jurist- og Økonomforbundets Forlag
Tamm, Ditlev. 2009. Global Retskultur – en indføring i komparativ ret på historisk
grundlag. 1. udg. Frederiksberg: Samfundslitteratur
Welstead, Mary and Edwards, Susan. 2008. 2nd ed. Family Law. Oxford University
Press
Zweigert, Konrad. 1998. An Introduction to Comparative Law. 3rd ed. Oxford – New
York: Oxford University Press
85
http://de.wikipedia.org/wiki/Konrad_Zweigert (Retrieved on 2 August 2010)
http://en.wikipedia.org/wiki/Anglicanism (Retrieved on 11 February 2010)
http://en.wikipedia.org/wiki/Ecclesiastical_court (Retrieved on 10 February 2010)
http://en.wikipedia.org/wiki/Laws_in_Wales_Acts_1535%E2%80%931542
(Retrieved on 18 June 2010)
http://en.wikipedia.org/wiki/Reform_Act_1832 (Retrieved on 11 March 2010)
http://en.wikipedia.org/wiki/Victorian_era (Retrieved on 10 February 2010)
http://frost.blogs.berlingske.dk/2008/09/22/farvel-til-danmark-2-%e2%80%93-etkonsensussamfund/ (Retrieved on 10 February 2010)
http://webcache.googleusercontent.com/search?q=cache:Ujau3ojZI0J:en.wikipedia.org/wiki/Inquisitorial_system+%22inquisistional+procedure%22&
cd=1&hl=da&ct=clnk&gl=dk (Retrieved on 6 April 2010)
http://www.boernogsamvaer.dk/regler/ael.htm#K4 (Retrieved on 28 April 2010)
http://www.denstoredanske.dk/Samfund,_jura_og_politik/Jura/Almindelig_retsl%C
3%A6re,_retsfilosofi_og_terminologi/civilret (Retrieved on 13 March 2010)
http://www.denstoredanske.dk/Samfund,_jura_og_politik/Samfund/Amtm%C3%A6
nd_og_over%C3%B8vrighed/over%C3%B8vrighed (Retrieved on 10 February 2010)
http://www.djoef.dk/Udgivelser/Juristen/Juristen2005/Juristennr32005/Aegteskabs
betingelser.aspx (Retrieved on 22 March 2010)
http://www.dr.dk/Tro/Temaer/Troens%20rødder/Kjeld%20Holm/20060809103729.
htm (Retrieved on 11 February 2010)
http://www.opsi.gov.uk/revisedstatutes/acts/ukpga/1973/cukpga_19730018_en_2
#pt1-pb1-l1g1 (Retrieved on 20 May 2010)
https://www.retsinformation.dk/Forms/R0710.aspx?id=31944 (Retrieved on 4 June
2010)
http://www.statsforvaltning.dk/site.aspx?p=5466 (Retrieved on 31 May 2010)
86
http://www.themis.dk/synopsis/docs/Artikler/Familieretlige_erindringer_af_Svend_
Danielsen.html (Retrieved on 29 March 2010)
http://jura.ku.dk/forskning/nyheder/pierre_legrand/pierrelegrand_sidstefinal.pdf/
(Retrieved on 4 August 2010)
http://www.nesl.edu/students/full_time.cfm?id=15 (Retrieved on 4 August 2010)
http://www.nkmr.org/english/coddington_letter.htm (Retrieved on 7 August 2010)
87
Appendices
Appendix 1:
Matrimonial Causes Act 1973 (only relevant sections)
Appendix 2:
Lovbekendtgørelse nr. 38 af 15/01/2007 om ægteskabs indgåelse og
opløsning (The Danish Act to Consolidate the Law on Formation and
Dissolution of Marriage 2007) (only relevant sections)
Appendix 3:
Translation into English of relevant sections of The Danish Act to
Consolidate the Law on Formation and Dissolution of Marriage 2007
(Lovbekendtgørelse nr. 38 af 15/01/2007 om ægteskabs indgåelse og
opløsning)
Appendix 4:
Email from lawyer Jørgen U. Grønborg (relevant sections with
translation)
Appendix 4a: Original email from lawyer Jørgen U. Grønborg
88
Appendix 1:
Matrimonial Causes Act 1973
(relevant sections only)
89
Selected sections of the
Matrimonial Causes Act 1973
PART I
DIVORCE, NULLITY AND OTHER MATRIMONIAL SUITS
Divorce
1 Divorce on breakdown of marriage
(1) Subject to section 3 below, a petition for divorce may be presented to the court by either
party to a marriage on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition for divorce shall not hold the marriage to have broken down
irretrievably unless the petitioner satisfies the court of one or more of the following facts,
that is to say—
(a) that the respondent has committed adultery and the petitioner finds it intolerable
to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least
two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least
two years immediately preceding the presentation of the petition (hereafter in this
Act referred to as “two years’ separation”) and the respondent consents to a decree
being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least
five years immediately preceding the presentation of the petition (hereafter in this
Act referred to as “five years’ separation”).
(3) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably
can, into the facts alleged by the petitioner and into any facts alleged by the respondent.
(4) If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2)
above, then, unless it is satisfied on all the evidence that the marriage has not broken down
irretrievably, it shall, subject to section 5 below, grant a decree of divorce.
(5) Every decree of divorce shall in the first instance be a decree nisi and shall not be made
absolute before the expiration of six months from its grant unless the High Court by general
order from time to time fixes a shorter period, or unless in any particular case the court in
90
which the proceedings are for the time being pending from time to time by special order
fixes a shorter period than the period otherwise applicable for the time being by virtue of
this subsection.
2 Supplemental provisions as to facts raising presumption of breakdown
(1) One party to a marriage shall not be entitled to rely for the purposes of section 1(2)(a)
above on adultery committed by the other if, after it became known to him that the other
had committed that adultery, the parties have lived with each other for a period exceeding,
or periods together exceeding, six months.
(2) Where the parties to a marriage have lived with each other after it became known to one
party that the other had committed adultery, but subsection (1) above does not apply, in
any proceedings for divorce in which the petitioner relies on that adultery the fact that the
parties have lived with each other after that time shall be disregarded in determining for
the purposes of section 1(2)(a) above whether the petitioner finds it intolerable to live with
the respondent.
(3) Where in any proceedings for divorce the petitioner alleges that the respondent has
behaved in such a way that the petitioner cannot reasonably be expected to live with him,
but the parties to the marriage have lived with each other for a period or periods after the
date of the occurrence of the final incident relied on by the petitioner and held by the
court to support his allegation, that fact shall be disregarded in determining for the
purposes of section 1(2)(b) above whether the petitioner cannot reasonably be expected to
live with the respondent if the length of that period or of those periods together was six
months or less.
(4) For the purposes of section 1(2)(c) above the court may treat a period of desertion as
having continued at a time when the deserting party was incapable of continuing the
necessary intention if the evidence before the court is such that, had that party not been
so incapable, the court would have inferred that his desertion continued at that time.
(5) In considering for the purposes of section 1(2) above whether the period for which the
respondent has deserted the petitioner or the period for which the parties to a marriage
have lived apart has been continuous, no account shall be taken of any one period (not
exceeding six months) or of any two or more periods (not exceeding six months in all)
during which the parties resumed living with each other, but no period during which the
parties lived with each other shall count as part of the period of desertion or of the period
for which the parties to the marriage lived apart, as the case may be.
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(6) For the purposes of section 1(2)(d) and (e) above and this section a husband and wife shall
be treated as living apart unless they are living with each other in the same household, and
references in this section to the parties to a marriage living with each other shall be
construed as references to their living with each other in the same household.
(7) Provision shall be made by rules of court for the purpose of ensuring that where in
pursuance of section 1(2)(d) above the petitioner alleges that the respondent consents to a
decree being granted the respondent has been given such information as will enable him
to understand the consequences to him of his consenting to a decree being granted and
the steps which he must take to indicate that he consents to the grant of a decree.
3 Bar on petitions for divorce within one year of marriage
(1) No petition for divorce shall be presented to the court before the expiration of the period
of one year from the date of the marriage.
(2) Nothing in this section shall prohibit the presentation of a petition based on matters which
occurred before the expiration of that period.
5 Refusal of decree in five year separation cases on grounds of grave hardship to respondent
(1) The respondent to a petition for divorce in which the petitioner alleges five years’
separation may oppose the grant of a decree on the ground that the dissolution of the
marriage will result in grave financial or other hardship to him and that it would in all the
circumstances be wrong to dissolve the marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then—
(a) if the court finds that the petitioner is entitled to rely in support of his petition on
the fact of five years’ separation and makes no such finding as to any other fact
mentioned in section 1(2) above, and
(b) if apart from this section the court would grant a decree on the petition,
the court shall consider all the circumstances, including the conduct of the parties
to the marriage and the interests of those parties and of any children or other
persons concerned, and if of opinion that the dissolution of the marriage will result
in grave financial or other hardship to the respondent and that it would in all the
circumstances be wrong to dissolve the marriage it shall dismiss the petition.
(3) For the purposes of this section hardship shall include the loss of the chance of acquiring
any benefit which the respondent might acquire if the marriage were not dissolved.
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10 Proceedings after decree nisi: special protection for respondent in separation cases
(1) Where in any case the court has granted a decree of divorce on the basis of a finding that
the petitioner was entitled to rely in support of his petition on the fact of two years’
separation coupled with the respondent’s consent to a decree being granted and has made
no such finding as to any other fact mentioned in section 1(2) above, the court may, on an
application made by the respondent at any time before the decree is made absolute,
rescind the decree if it is satisfied that the petitioner misled the respondent (whether
intentionally or unintentionally) about any matter which the respondent took into account
in deciding to give his consent.
(2) The following provisions of this section apply where—
(a) the respondent to a petition for divorce in which the petitioner alleged two years’
or five years’ separation coupled, in the former case, with the respondent’s consent
to a decree being granted, has applied to the court for consideration under
subsection (3) below of his financial position after the divorce; and
(b) the court has granted a decree on the petition on the basis of a finding that the
petitioner was entitled to rely in support of his petition on the fact of two years’ or
five years’ separation (as the case may be) and has made no such finding as to any
other fact mentioned in section 1(2) above.
(3) The court hearing an application by the respondent under subsection (2) above shall
consider all the circumstances, including the age, health, conduct, earning capacity,
financial resources and financial obligations of each of the parties, and the financial
position of the respondent, as having regard to the divorce, it is likely to be after the death
of the petitioner should the petitioner die first; and, subject to subsection (4) below, the
court shall not make the decree absolute unless it is satisfied—
(a) that the petitioner should not be required to make any financial provision for the
respondent, or
(b) that the financial provision made by the petitioner for the respondent is reasonable
and fair or the best that can be made in the circumstances.
(4) The court may if it thinks fit makes the decree absolute notwithstanding the requirements
of subsection (3) above if—
(a) it appears that there are circumstances making it desirable that the decree should
be made absolute without delay, and
(b) the court has obtained a satisfactory undertaking from the petitioner that he will
make such financial provision for the respondent as the court may approve.
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Nullity
11 Grounds on which a marriage is void
A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that
is to say—
(a) that it is not a valid marriage under the provisions of the Marriage Act 1949 to 1986
(that is to say where—
(i) the parties are within the prohibited degrees of relationship;
(ii) either party is under the age of sixteen; or
(iii)the parties have intermarried in disregard of certain requirements as to the
formation of marriage);
(b) that at the time of the marriage either party was already lawfully married or a civil
partner;
(c) that the parties are not respectively male and female;
(d) in the case of a polygamous marriage entered into outside England and Wales, that
either party was at the time of the marriage domiciled in England and Wales.
For the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its
inception neither party has any spouse additional to the other380.
380
http://www.opsi.gov.uk/revisedstatutes/acts/ukpga/1973/cukpga_19730018_en_2#pt1-pb1-l1g1
94
Appendix 2:
Lovbekendtgørelse nr. 38 af 15/01/2007
om ægteskabs indgåelse og opløsning
(The Danish Act to Consolidate the Law on
Formation and Dissolution of Marriage
2007)
(relevant sections only)
95
Udvalgte paragraffer af
Lovbekendtgørelse nr. 38 af 15/01/2007 om ægteskabs indgåelse og opløsning
Kapitel 4
Skilsmisse efter separation
§ 31. En ægtefælle har ret til skilsmisse efter 1 års separation.
Stk. 2. Ægtefæller har ret til skilsmisse efter 6 måneders separation, hvis de er enige om
skilsmisse.
2 års adskillelse
§ 32. En ægtefælle har ret til skilsmisse, når ægtefællerne på grund af uoverensstemmelser har
levet adskilt i de sidste 2 år.
Utroskab
§ 33. En ægtefælle har ret til skilsmisse, når den anden ægtefælle har været utro eller har
deltaget i et lignende seksuelt forhold. Skilsmisse kan dog ikke kræves, hvis ægtefællen har været
indforstået med handlingen eller senere må anses at have frafaldet sin ret.
Stk. 2. Skilsmisse kan ikke opnås på grundlag af et seksuelt forhold, der har fundet sted, mens
ægtefællerne er separeret.
Stk. 3. Anmodning om skilsmisse skal indgives inden 6 måneder efter, at ægtefællen er blevet
vidende om handlingen, og inden 2 år efter, at den er foretaget.
Vold
§ 34. En ægtefælle har ret til skilsmisse, når den anden ægtefælle har udøvet forsætlig vold af
grovere karakter over for denne eller børnene.
Stk. 2. Anmodning om skilsmisse skal indgives inden 1 år efter, at ægtefællen er blevet vidende
om handlingen, og inden 3 år efter, at den er begået.
Bigami
§ 35. En ægtefælle har ret til skilsmisse, når den anden ægtefælle har indgået nyt ægteskab i
strid med § 9.
Børnebortførelse
§ 36. En ægtefælle har ret til skilsmisse, når den anden ægtefælle ulovligt har ført den
førstnævnte ægtefælles barn ud af landet eller ulovligt tilbageholder barnet i udlandet.
Stk. 2. Anmodning om skilsmisse skal indgives, mens barnet på grund af den ulovlige bortførelse
eller tilbageholdelse opholder sig i udlandet eller senest 1 år efter, at barnet er bragt tilbage.
96
Kapitel 1
Ægteskabsbetingelser
§ 6. Ægteskab må ikke indgås mellem slægtninge i ret op- og nedstigende linje eller mellem
søskende.
§ 9. Den, som tidligere har indgået ægteskab eller har været part i et registreret partnerskab,
må ikke indgå ægteskab, så længe det tidligere ægteskab eller registrerede partnerskab består.
Kapitel 3
Ægteskabs omstødelse
§ 23. Et ægteskab omstødes ved dom, hvis det er indgået i strid med § 6 eller § 9.
Stk. 2. Er ægteskabet indgået i strid med § 9, kan det dog ikke omstødes, når det tidligere
ægteskab er ophørt, inden sag er anlagt.
Stk. 3. Sag til omstødelse kan anlægges af ministeren for familie- og forbrugeranliggender eller
den, han bemyndiger dertil, eller af en af ægtefællerne. Er ægteskabet indgået i strid med § 9,
kan tillige ægtefællen i det tidligere ægteskab anlægge sag381.
381
https://www.retsinformation.dk/Forms/R0710.aspx?id=31944
97
Appendix 3:
Translation into English of The Danish Act
to Consolidate the Law on Formation and
Dissolution of Marriage 2007
(Lovbekendtgørelse nr. 38 af 15/01/2007
om ægteskabs indgåelse og opløsning)
(relevant sections only)
98
Selected sections of
The Danish Act to Consolidate the Law on Formation and Dissolution of Marriage 2007
(DACLFDM 2007)
Chapter 4
Divorce after legal separation
31 A spouse shall be entitled to a divorce after 1 year's legal separation
(2) Spouses shall be entitled to a divorce after 6 months' legal separation if they agree on a
divorce.
2 years' living apart
32 A spouse shall be entitled to a divorce if, due to disagreements, the spouses have lived apart
for the last 2 years.
Adultery
33 A spouse shall be entitled to a divorce where the other spouse has committed adultery or has
engaged in a similar sexual relationship. However, the spouse cannot request that a divorce
be granted where the spouse has accepted the act of adultery, or at a later time must be
deemed to have renounced his right to a divorce.
(2) A divorce cannot be obtained on the basis of a sexual relationship which took place while
the spouses were legally separated.
(3) A request for divorce shall be presented within 6 months after the act of adultery has
become known to the spouse, and within 2 years of it having been committed.
Violence
34 A spouse shall be entitled to a divorce where the other spouse has committed intentional and
aggravated violence against that spouse or the children.
2) A request for divorce shall be presented within 1 year after the act of violence has become
known to the spouse, and within 3 years of it having been committed.
99
Bigamy
35 A spouse is entitled to a divorce where the other spouse has entered into a new marriage
contrary to s 9382.
Child abduction
36 A spouse shall be entitled to a divorce where the other spouse has unlawfully taken the
aforementioned spouse's child out of the country, or unlawfully retains the child abroad.
(2) A request for divorce shall be presented while, due to having been unlawfully abducted or
retained abroad, the child stays in a foreign country, or not later than 1 year after the
return of the child.
Chapter 1
Marriage conditions
6 Marriage between relatives in lineal ascent and descent or between brothers and sisters
shall not be allowed.
9 A person who has previously been married or has been a party to a registered
partnership shall not be allowed to marry as long as the former marriage or registered
partnership exists.
Chapter 3
Marriage annulment
23 A marriage shall be annulled by judicial decree if it has been contracted contrary to s 6 or 9.
(2) A marriage contracted contrary to s 9 cannot be annulled where the former marriage was
terminated before proceedings were commenced.
(3) An annulment case may be brought before the court by the Minister of Family and
Consumer Affairs (Ministeren for familie- og forbrugeranliggender) or any person hereto
authorised by him or by either of the spouse. If the marriage was contracted contrary to
section 9, the spouse of the former marriage may also commence proceedings383.
382
See below for s 9.
My translation of sections 31 to 36 and ss 6, 9 and 23 of the DACLFDM 2007. See appendix 2 for the original Danish version of
the Act.
383
100
Appendix 4:
Email from lawyer Jørgen U. Grønborg
101
LBK nr. 38 af 15/01/2007 er den gældende danske ægteskabslov, som er ændret ved
Consolidation Act No. 38, 15 January 2007, is the existing Danish Formation and Dissolution
of Marriage Act, as amended by
§ 2 i lov nr. 504 af 06.06.2007 (Bekæmpelse af menneskehandel og samkøring af oplysninger om
evakuerede m.v.) fra d. 01.08.2007.
section 2 of Act No. 504 of 6 June 2007 (Combating trade in human beings and linkage of data
on evacuated persons a.m.o.) from 1 August 2007.
§ 3 i lov nr. 349 af 06.05.2009 (Terminaladgang til økonomiske oplysninger, klagefrist m.v.) fra d.
01.10.2009. Dog træder ændringen af § 58 a, stk. 4 ikraft på et tidspunkt der fastsættes af
Justitsministeren.
section 3 of Act No. 349 of 6 May 2009 (Terminal access to financial data, period allowed for
appeal a.m.o.) from 1 October 2009. However, the amendment of section 58(a)(4) comes into
force on a date fixed by the Danish Minister of Justice.
LBK nr. 38 af 15/01/2007 dækker ikke direkte Grønland og Færøerne men kan ved kgl. anordning
sættes i kraft for disse landsdele.
Consolidation Act No. 38, 15 January 2007, does not extend to Greenland and the Faroe
Islands, may, however, be put into force by Ministerial Regulation no 307 of 14 May 1993, as
amended and no 37 of 22 January 2002, as amended, respectively.
Jørgen U. Grønborg
Advokaterne
Sankt Knuds Torv
Ryesgade 31,
8000 Århus C
Tlf.: 8613 0600
Fax: 8613 1500.
102
Appendix 4a:
Original email from lawyer Jørgen U.
Grønborg
103
Tak for dit spørgsmål.
Jeg skriver mine svar ud for de enkelte punkter.
Med venlig hilsen
Jørgen U. Grønborg
Advokaterne
Sankt Knuds Torv
Ryesgade 31,
8000 Århus C
Tlf.: 8613 0600
Fax: 8613 1500.
----- Original Message ----From: anne hofmann larsen
To: brevkassen@familieadvokaten.dk
Sent: Monday, June 14, 2010 2:27 PM
Subject: Re: Hvilken ægteskabslov er den gældende i dk
Kategorien er : Separation og skilsmisse
Til rette vedkommende!
Jeg læser cand. ling. merc i engelsk ved Handelshøjskolen i Aarhus og er pt. i gang med speciale
inden for skilsmisseret. En komparativ analyse af England og Danmark inden for nævnte område.
Jeg har lidt problemer med at finde ud af, hvad den gældende danske ægteskabslov egentligt hedder
- hvordan man henviser til den. Er det LBK nr, 38 af 15/01/2007.
ja, som ændret ved
§ 2 i lov nr. 504 af 06.06.2007 (Bekæmpelse af menneskehandel og samkøring af oplysninger om
evakuerede m.v.) fra d. 01.08.2007.
§ 3 i lov nr. 349 af 06.05.2009 (Terminaladgang til økonomiske oplysninger, klagefrist m.v.) fra d.
01.10.2009, dog træder ændringen af § 58 a, stk. 4 ikraft på et tidspunkt der fastsættes af
Justitsministeren.
se dette link: Ægteskabsloven
Er en sådan 'lovbekendtgørelse' en retsakt, der samler alle bekendtgørelser siden sidste
lovbekendtgørelse i 1999?
ja
Dækker LBK nr, 38 af 15/01/2007 Grønland og Færøerne?
104
kun Grønland og med ændringer - se ÆL § 67
§ 67. Loven gælder ikke for Færøerne og Grønland, men kan ved kgl. anordning sættes i kraft for
disse landsdele med de afvigelser, som de særlige færøske eller grønlandske forhold tilsiger. (Trådt
i kraft for Grønland 1/7 1993 med afvigelser)
Hvor står det henne?
se ovenfor
Står det i den 'rigtige' lov,
ja
og hvad er benævnelsen for den 'rigtige' ægteskabslov?
om ægteskabs indgåelse og opløsning
Linda Nielsen siger i sin 'Familieretten' af 2009 side 8, at det er ægteskabsloven af 1969, der er
hovedloven.
korrekt
På forhånd mange tak for svar.
Mange hilsner
Anne Hofmann Larsen
Holtskovgårdsvej 12
8660 Skanderborg
mobil: 31246518
105