UK: Family Law


1.1 A divorce obtained in a court of civil jurisdiction in any part of the United Kingdom, the Channel Islands or the Isle of Man may be accepted, provided that the final certificate (decree absolute) is seen. If the document has been lost the person concerned should be asked to apply for a copy to the local issuing court or the Divorce Registry, First Avenue House, 42-49 High Holborn, London, WC1V 6NP (Tel: 0171- 936 7016).

1.2 Any evidence on the file should be taken into account. If documents have been seen and noted in the past there is no need to ask to see them again.

1.3 Before granting a decree of divorce or judicial separation, a United Kingdom divorce court needs to be satisfied that the marriage it is being asked to dissolve is in fact valid and subsisting. It is not therefore necessary, when considering the validity of a current marriage, to see documentary evidence of a previous marriage where such a marriage has been terminated by a divorce (or decree of nullity in respect of a voidable marriage) granted in the United Kingdom.

1.4 An extra judicial divorce (i.e. one that is granted by a religious body and not by a court of law) such as a Muslim Talaq or Greek Orthodox divorce, which was granted in this country before 1 January 1974, is acceptable only if the parties concerned were, at the date when the proceedings were instituted, domiciled in a country in which such a divorce would be accepted (see DOMICILE).

1.5 Extra-judicial divorces, which have been granted since 1 January 1974 in this country, are not valid.

1.6 A foreign embassy or consulate cannot be regarded as a part of a country outside the British Isles for the purposes of s.45 of the Family Law Act 1986. A divorce obtained at a foreign embassy or consulate in England cannot therefore be regarded as valid in English law. The court case of Radwan -v- Radwan, in which a Talaq divorce was obtained at the United Arab Republic Consulate-General in this country, led to this decision. However, where the hearing has taken place in another country and the embassy has merely acted as a Registry Office in issuing the divorce document, the divorce may be regarded as valid.

1.7 Decree nisi and decree absolute

1.7.1 The decree nisi is the court’s decision to grant a divorce provided that nothing comes to light which may alter the judgement. The certificate given as a result of this decision shows the period of time that is to be allowed for this purpose. If nothing comes to light, the decree absolute is issued at the end of the waiting period. The decree nisi is therefore a temporary document only and the decree absolute must always be seen.

Divorce Overseas

2.1 The law before 1988

2.1.1 The courts ruled in the case of Indyka v Indyka (1966) that a foreign divorce could be recognised by the English courts if one of the parties had a real and substantial connection with the country in which the decree was granted. The Judge held that when an alteration in English law widens the divorce jurisdiction of the English courts, the correspondingly widened recognition of decrees pronounced abroad applies only after, and not before, the change in English municipal law. Recognition of, in this case, a Czech divorce, pronounced in January 1949, had been sought on the basis that the Czech court’s jurisdiction would have been recognised if the Law Reform (Miscellaneous Provisions) Act 1949 had governed the question of jurisdiction. But since that Act had not taken effect until December 1949, and had no retrospective effect, the Czech decree could not be recognised by English law.

2.1.2 It has not been necessary to quote this ruling since the Recognition of Divorces and Legal Separations Act 1971 came into force on 1 January 1972. The 1971 Act provided the first statutory criteria for the recognition of overseas divorces in United Kingdom law. An overseas divorce would be recognised as valid under the 1971 Act if:

  • it was obtained by means of judicial or other proceedings in any country outside the United Kingdom; and
  • it was valid in that country; and
  • either spouse was habitually resident in, or was a national of, that country.

2.1.3 The effect of the first of these requirements was that:

  • there should have been some formal proceedings, either before a court or another formal body recognised by the state for that purpose (e.g. the Union Council, in Pakistan); and
  • the judicial or other body should be impartial as to the outcome of the proceedings (i.e. a meeting of family members to dissolve a customary marriage or hear the pronouncement of a talaq did not satisfy this requirement).

2.1.4 The 1971 Act was amended on 1 January 1974 by the Domicile and Matrimonial Proceedings Act 1973 which provided for:

  • recognition of other forms of overseas divorce (e.g. “bare” talaq in Kashmir), which would be recognised if both parties were domiciled in a country which permitted such a divorce; and
  • non-recognition of a divorce obtained other than by means of a proceeding in a court of law if both parties had, throughout the year immediately before the institution of the proceedings, been habitually resident in the United Kingdom.

2.2 The law since 1988

2.2.1 Part II of the Family Law Act 1986, which came into force on 4 April 1988, provides criteria for the recognition in the United Kingdom of foreign divorces. Under s.46(1) the validity of an overseas divorce obtained by means of proceedings shall be recognised if:

a. the divorce is effective under the law of the country in which it was obtained; and

b. at the date of the commencement of the proceedings either party to the marriage was:

i. habitually resident in the country in which the divorce was obtained; or

ii. domiciled in that country; or

iii. a national of that country.

2.2.2 Under s.46(2) the validity of an overseas divorce obtained otherwise than by means of proceedings (eg a bare Talaq divorce where the husband declares 3 times “I divorce thee”) shall be recognised if:

a. the divorce is effective under the law of the country in which it was obtained; and



b. at the date on which it was obtained:


i. each party to the marriage was domiciled in that country; or

ii. either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce is recognised as valid; and

c. neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date; and

d. there is an official document certifying that the divorce is effective under the law of the country in which it is obtained (or where one of the parties was at the date of the divorce domiciled in another country, there shall be an official document certifying that the divorce is recognised as valid under the law of that country).

NB. A party to a marriage shall be treated as domiciled in a country if domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises.

2.2.3 Under s.49 of the 1986 Act, in relation to countries in which several different systems of law are in force (e.g. the USA), certain modifications are made to the conditions for recognition of foreign divorces under s.46:

In the case of a divorce whose validity depends upon satisfying 2.2.1 b. i. Or ii. Or 2.2.2 b. above each territory or jurisdiction should be treated as if it were a separate country.



In the case of a divorce whose validity depends upon satisfying 2.2.1 b. iii. Above the divorce must be effective throughout the country in which it was obtained.

2.2.4 Section 51 provides for the refusal of recognition where recognition would manifestly be contrary to public policy.

2.2.5 Section 52 applies the same criteria for recognition retrospectively to overseas divorces obtained before the date of commencement of Part II of the Family Law Act 1986 but does not affect the validity of any divorce obtained before its coming into force on 4 April 1988 and recognised as valid “by any competent court in the British Islands” under rules of law formerly applicable.

2.3 The fact that a person who has obtained a divorce overseas is later married in this country should not be taken as proof that the divorce is valid. When foreign divorce documents are produced to the Superintendent Registrar before a marriage licence or certificate is issued, their validity in English law is assumed unless they appear at first sight to be irregular (e.g. clearly invalid in the country of issue or granted only for religious purposes).

2.4 The General Register Office do not feel able to extend their enquiries, since the onus lies on the parties concerned to show that they have the personal capacity to contract the proposed marriage. They are warned that they may have to satisfy another authority of the validity of a previous divorce if at any time it becomes necessary to confirm the validity of the marriage.

2.5 Some guidance on divorce in accordance with other laws and religions is given below. Any difficult foreign divorce cases may be referred to INPD (EOP2) for information or advice.

2.6 Talaq divorce

2.6.1 In traditional Islamic law a bare talaq divorce is the pronouncement by the husband taking the form of a triple declaration: “I divorce thee”. This has the effect of dissolving the marriage instantly. However, the Muslim Family Laws Ordinance 1961 (MFLO) lays down formal requirements for the recognition of divorces in all parts of Bangladesh and Pakistan except Azad Kashmir. Under the MFLO, when a man pronounces talaq in any form, he must give the Chairman of the Union Council of the ward notice in writing of the pronouncement and he must also give a copy of the notice to his wife. After this, a period of 90 days (or the end of her pregnancy if his wife is then pregnant) must elapse before the divorce becomes effective. There is a process for reconciliation between the parties which may be attempted during this period.

2.6.2 The MFLO has not been formally extended to Azad Kashmir, and the only form of divorce that may be recognised in Azad Kashmir is the traditional bare form.

2.6.3 A talaq divorce performed in accordance with the requirements of s.7 of the MFLO is capable of recognition under s.46(1) of the 1986 Act (Quazi -v- Quazi [1979] 3 All ER 897, HL). A bare talaq, which has been held by the Court of Appeal in Chaudhary v Chaudhary [1985] Fam 19 not to constitute judicial or other proceedings, is capable of recognition under s.46(2) of the 1986 Act.

2.6.4 The scope for recognition of the 2 types of divorce is thus as follows:

Recognition of full Talaqs performed overseas

i. A full talaq under the MFLO performed wholly in Pakistan (excluding Azad Kashmir or Bangladesh) will be recognised if either spouse was:

-habitually resident, or domiciled in that country, or
-a national of that country

Recognition of bare talaqs pronounced overseas

ii. A bare talaq pronounced in Azad Kashmir will only be recognised if:

-both spouses were still domiciled in Azad Kashmir at the time of pronouncement (or one was, and the other spouse was domiciled in another foreign country that recognised bare talaq divorce), and
-neither spouse had been habitually resident in the United Kingdom throughout the year immediately preceding the pronouncement of divorce, and there is:

i. an official document certifying that the divorce is effective under the law of the country in which it is obtained, or

ii. (where one of the parties was at the date of the divorce domiciled in another country) an official document certifying that the divorce is recognised as valid under the law of that country.

2.6.5 Where the couple are from Azad Kashmir and the husband has become domiciled in this country while his wife is still domiciled in Azad Kashmir, the only way he can effect a divorce that would be recognised under United Kingdom law is through the courts in this country. It should be noted that, before 1 January 1974, the wife was regarded as being domiciled where her husband was domiciled (see DOMICILE).

2.6.6 For guidance on the validity of talaq divorces obtained in the UK, see paragraphs 1.4-1.6 above.

2.6.7 There are instances purporting to be full Talaq divorces where the proceedings are started in this country with the man pronouncing Talaq 3 times here, but then completed overseas (e.g. in Pakistan) by the man writing to notify the Union Council Chairman and his wife there. It was held by the House of Lords in Re Fatima [1986] 2 All ER 32 that such trans-national divorces were not capable of recognition under the Recognition of Divorces and Legal Separations Act 1971 and they would not be recognised under the Family Law Act 1986. To be capable of recognition under ss.45 and 46 of the 1986 Act an overseas divorce must be instituted and obtained in the same country outside the British Isles. This view was reinforced in the case of Berkovits v Grindberg [1995] 1 FLR 477 which involved a Jewish “Get” divorce where the proceedings took place partly in the UK (where the Get was written) and partly in Israel (where the Get was pronounced).

Divorces in Accordance with Different Laws

3.1 Brazilian divorce

3.1.1 Before 1977, Brazilians who married in Brazil could not obtain a divorce. The nearest thing was a provision for legal separation known as a “desquite”, which cannot be accepted as evidence of the termination of a marriage. It was common practice for a couple, one or both of whom had obtained a desquite, to go to Bolivia to marry because Bolivia was prepared to accept a desquite as a divorce, but the marriage would not be valid in Brazil.

3.1.2 Since 1977, it has been possible to convert a desquite into a divorce, which will only be given after 3 years’ legal separation.

3.1.3 Any case involving a desquite or a desquite converted into a divorce should be referred to INPD(L).

3.2 Cypriot divorce

3.2.1 Under the law of Cyprus, a marriage between 2 members of the Greek Orthodox Church, which is solemnised in accordance with the rites of that church, can only be dissolved by a competent tribunal of the Greek Orthodox Church, no matter where it is. Even so, such a divorce can only be recognised if the conditions at 2.2.1 a. and b. are met.

3.3 Ghanaian divorce

3.3.1 The Customary Marriage and Divorce (Registration) Law 1985 provided for the proper registration of divorces in Ghana, and was retroactive. All Ghanaians, whether living in or outside of Ghana, can now obtain certificates of divorce and they should be requested from applicants whenever marital status is important.

3.3.2 However, under the Customary Marriage and Divorce (Registration)(Amendment) Law 1991, registration is no longer mandatory. Where the relevant certificates are not available, we should expect to receive a statutory declaration by the heads of the families concerned (or two people representing the legal interests of the parties) confirming the date, place and type (e.g. tribal custom) of the marriage and/or divorce.

3.4 Philippines divorce

3.4.1 Divorce is not generally permitted in Philippines law. With the one exception in 3.4.2 below, the only circumstances where a divorce, where one of the parties is a Filipino citizen, will be recognised is where:

-the other spouse is a foreigner; and
-the couple are validly married; and
-a valid divorce was obtained abroad by the foreign spouse.

3.4.2 Separate arrangements are made for Muslims living the Philippines. The Code of Muslim Personal Laws 1977 provides that where both parties to a marriage are Muslims, a divorce can be obtained at the Sheria court.

3.4.3 In all other cases, a marriage can otherwise only be terminated if the marriage is declared void or is annulled (in either case a court order must be obtained), or if one of the parties dies.

3.5 Turkish divorce

3.5.1 Divorces in Turkey are governed by the Turkish Civil Code 1926. Divorces can only be obtained from a court, and no other form of divorce can be recognised as valid in Turkish law. In pronouncing the divorce, a judge may decree that the respondent cannot remarry for a period of 1-2 years. The divorcee may be prohibited from remarrying for up to 300 days (the same may also apply to a widow or a woman whose marriage has been annulled).

3.6 USA Divorce

3.6.1 Divorce is governed by State rather than by Federal law, and the provisions of s.49 of the Family Law Act 1986 therefore apply. See paragraph 2.2.3 above.
3.7 Zimbabwe divorce

3.7.1 The Southern Rhodesia (Marriages, Matrimonial Causes and Adoptions) Order 1972, which came into force on 12 December 1972, and was retroactive to the illegal declaration of independence (idi), provided that marriages, divorces and annulments performed or granted in Southern Rhodesia since idi should not be regarded as invalid merely because the officials or authorities concerned were appointed by, or were acting for, the illegal regime.

3.7.2 The Southern Rhodesia (Matrimonial Jurisdiction) Order 1970, which came into force on 16 November 1970, gave limited relief to people who had not been able to obtain a divorce in Southern Rhodesia that was valid in United Kingdom law. Its general effect was to give the same jurisdiction to the courts of each part of the United Kingdom to entertain proceedings for divorce or nullity of marriage of a person domiciled or resident in Southern Rhodesia as if that person had been domiciled or resident in that part of this country, whether England and Wales, or Scotland, or Northern Ireland.

3.7.3 The Order required that a person should have completed 6 months’ residence in the part of the United Kingdom concerned before proceedings could be instituted here. If the person was resident in Southern Rhodesia on or after 11 November 1965, and then lived in some other country before becoming resident in the United Kingdom, the residence in the other country would be disregarded in calculating any period of residence required under United Kingdom law. This took into account the fact that some of the people who left Southern Rhodesia after idi might well have spent some time in other countries before deciding to come here. Both these Orders were repealed by Schedule 3 to the Zimbabwe Act 1979.


Spain: Family Law

SPANISH CIVIL CODE: On Family Law (Excerpts)


Book I: Persons; Title IV: Marriage; Chapter VII: Separation

Article 81

Separation shall be judicially decreed, regardless of the form in which the marriage was contracted:

(1) At the petition of both spouses, or of one of them with the others consent, at the expiration of one year after the marriage was contracted. The petition for separation must be accompanied by a proposal for a regulatory agreement to govern the separation in accordance with Articles 90 and 103 of this Code.

(2) At the petition of one of the spouses, when the other has incurred a legal ground for separation.

Article 82

The following are grounds for separation:

(1) The unjustified abandonment of the family home, marital infidelity, abusive or offensive conduct and any other serious or reiterated infringement of conjugal obligations.
Marital infidelity cannot be alleged as a ground for separation when there exists a prior separation in fact of the spouses, by mutual consent freely given, or imposed by the spouse alleging it.

(2) Any serious or reiterated infringement of the obligations regarding the common children or regarding those of any of the spouses who reside in the family home.

(3) Sentence to imprisonment for longer than six years.


(4) Alcoholism, drug addiction, or mental abnormalities, provided that the interests of the other spouse, or of the family, require the spouses to discontinue living together.

(5) The effective cessation of marital life in common for a period of six months by free consent. Such consent shall be understood to be freely given where a spouse requests it from the other spouse in authentic form, giving him or her express notice of the consequences of doing so, and the other spouse fails to manifest his or her will against it by any legally permissible means, or petitions a separation or the provisional measures to which Article 103 refers, within six months of the required summons.


(6) The effective cessation of marital life in common for a period of three years.


(7) Any of the grounds for divorce in the terms provided by numbers 3, 4 and 5 of Article 86.

Article 83

A decree of separation suspends the spouses’ life in common, and terminates the possibility of binding the assets of the other spouse in the exercise of domestic prerogative (potestad doméstica).

Article 84

Reconciliation puts an end to the separation proceedings and leaves what may have been decided therein without further effect. The parties must, however, notify the court of the reconciliation before which the proceedings are or have been held.

The above notwithstanding, the measures taken in relation to the children shall be maintained or modified by judicial resolution whenever there exists just cause therefor.

Chapter VIII: Dissolution of Marriage

Article 85

Marriage is dissolved by the death or declaration of death of one of the spouses, and by divorce, regardless of the manner and time in which it was contracted.

Article 86

Grounds for divorce are:

(1) The effective cessation of marital life for, at least, one uninterrupted year from the time of the filing of the petition for separation, filed either by both spouses or at least by one of them with the consent of the other one when at least one year since the celebration of marriage has elapsed.

(2) The effective cessation of marital life for, at least, one uninterrupted year from the time of the filing of the petition for personal separation, at the request of the petitioner or of one who filed a reconventional claim pursuant to Article 82, once the judgment of separation becomes final, or where, the expressed term having expired, there should be no judgment at trial level.

(3) The effective cessation of marital life for, at least, two uninterrupted years:

(a) From the time the de facto separation is freely consented by both spouses, or the time the judicial decree becomes final, or from the time of the declaration of the legal absence of any of the spouses at the request of either of them.

(b) When the petitioner of divorce proves that when the de facto separation began the respondent had incurred a ground for legal separation.

(4) The effective cessation of marital life for at least five years at the petition of either of the spouses.
(5) A final judgment finding the other spouse guilty of attempting against the life of the petitioning spouse or of his or her ascendants or descendants.

When the divorce is petitioned by both spouses, or by one of them with the other’s consent, a proposal for a regulating agreement for the effects thereof, in accordance with Articles 90 and 103 of this Code, must be attached to the petition or to the first pleading filed in the proceedings.

Article 87

The effective cessation of marital life to which Articles 82 and 86 of this Code make reference is compatible with the continuation, or the temporary resumption of life in the same domicile, when this results, with regard to one or both of the spouses, from necessity, an intent to reconcile, or is in the interest of the children and is duly shown to be so in any legally admissible manner in the corresponding separation or divorce proceedings.

The interruption of life in common shall not imply the effective cessation of marital life if it is grounded on labor or professional reasons, or on whatever reasons of similar nature.

Article 88

The action for divorce is terminated by the death of any of the spouses and by their reconciliation. Reconciliation must be express when it takes place after the filing of the demand.

Reconciliation after divorce does not produce legal effects, although the divorced parties may contract a new marriage between each other.

Article 89

Dissolution of marriage by divorce can only take place by means of a decree of divorce so declaring and shall produce effects from the time this decree becomes final. It shall not prejudice third parties in good faith until it is recorded in the Civil Registry.

Chapter IX: Effects Common to Nullity, Separation, and Divorce

Article 90

The regulating agreement to which Articles 81 and 86 of this Code make reference must deal with, at least, the following subjects:

(1) The determination of the person in whose custody the children under parental authority of both spouses are to remain; the exercise of parental authority; and the regime of visitations, communications, and childrens periods of stay with the parent who does not live with them.

(2) The use of the family dwelling and furnishings.

(3) Contributions to the expenses of marriage and support obligations, as well as the basis for updating them and guarantees, when appropriate.

(4) The liquidation of the matrimonial property regime, when appropriate.

(5) Maintenance which, pursuant to Article 97, must eventually be discharged by one of the spouses.

Matrimonial agreements, entered into for the purpose of regulating the consequences of nullity, separation, or divorce, shall be approved by the court, unless they should be detrimental to the children or seriously damaging to one of the spouses. The rejection must be made by reasoned opinion, and, in such a case, the spouses must submit a new proposal to the consideration of the court for approval, where appropriate. From the moment it receives court approval, the agreement may be enforced by compulsory executory process (vía de apremio).

The measures adopted by the court in the absence of agreement, as well as those agreed upon by the spouses, may be modified judicially or by a new agreement when there is a substantial change in the circumstances.

The court may establish the real or personal guarantees that the performance of the agreement may require.

Article 97

The spouse to whom the separation or divorce produces an economic imbalance in relation to the position of the other, which involves a worsening of the situation he or she had during the marriage, has a right to maintenance which shall be fixed in the judicial decree, taking into account, among other, the following circumstances:

(1) The agreements that the spouses may have reached.

(2) Their age and state of health.

(3) Professional qualifications and the probabilities of gaining employment.


(4) Past and future dedication to the family.


(5) Collaboration, by his or her own labor, with the commercial, industrial, or professional activities of the other spouse.


(6) The duration of the marriage and their marital life.


(7) The eventual loss of a right to a pension.

(8) The wealth and economic means and necessities of both spouses.

The judicial decree shall establish the bases for updating the award of maintenance, and the guarantees for its effectiveness.

Article 98

The spouse in good faith whose marriage has been declared null shall have a right to an indemnification award, if there has been marital life, taking into account the circumstances provided by Article 97.

Article 99

The substitution of an annuity, the usufruct of certain property, or the delivery of capital in assets other than in money, instead of the judicially fixed award pursuant to Article 97, may be agreed upon at any time.

Article 100
After maintenance and the bases for updating it are fixed in the judgment on separation or divorce, the award may only be modified when there are substantial alterations in the economic capability of either spouse.

Article 101

The right to receive maintenance terminates on the cessation of the cause that gave raise to it, by the subsequent marriage of the spouse entitled to it or by his or her marital cohabitation with another person.

The right to receive maintenance does not end on the death of the person who is obliged to make this payment. Nevertheless, the debtors heirs may request the reduction or suppression of the award from the court if the hereditary assets were insufficient to discharge the debt or if their right to the legitimate portion would be affected.


Title II: Matrimonial property regimes; Chapter I: The separation matrimonial property regime and purchases with covenant of survival

Article 41. Economic compensation on the grounds of work

(1) In cases of judicial separation, divorce or marriage annulment, the spouse who has worked for the household or for the other spouse without receiving any payment in exchange or who has received insufficient payment, shall be entitled to receive economic compensation from the other spouse, in the event that this fact has produced a situation of inequality between the two patrimonies, which implies an unfair enrichment.

(2) The compensation shall be paid in money, unless otherwise agreed by the parties or if the judicial authority, on grounds of a justified cause, authorizes that the payment be made with assets belonging to the obliged spouse. The payment shall be made within a maximum period of three years, together with the accrued interests calculated at the legal rate, from the acknowledgement. In this case, the constitution of guarantees in favor of the creditor spouse may be judicially decreed.

(3) This right is compatible with any other economic rights to which the favored spouse may be entitled, but shall be taken into consideration for the assessment of these other rights.

Title III: The effects of the annulment of marriage, divorce and judicial separation

Article 76. Aspects that are the object of regulation

(1) In cases of nullity of marriage, divorce or judicial separation, if there are children under the parental authority, the following must be dealt with:


(A) The parent with whom the children shall have to live together and also, if this applies, the rights of access, the periods of stay and communication with the father or mother with whom such children do not live.

(B) The way in which the custody of the children has to be exercised, in the terms established in Article 139.

(C) The sum that has to be paid for childrens support, in accordance with Article 143, by the father or mother, and the periodicity and means of payment.

(D) The rules for the updating of the support payments and, eventually, of the guarantees to ensure them.

(2) If there are children of age or emancipated who live with one of the parents and have no earnings of their own, it shall be necessary to establish the support that corresponds to them under the terms established in Article 259.

(3) The remaining aspects that, according to the circumstances of the case, will need to be dealt with are the following:

(A) The attribution of the use of the family dwelling, with the appropriate household equipment and, eventually, the use of the other residences.

(B) Any maintenance allowance or support payment that, if any, shall be made by one of the spouses in favor of the other spouse.

(C) The manner, if any, in which the spouses continue to contribute to family expenses.

(D) The rules for updating support and maintenance payments and, if necessary, the guarantees to ensure their payment.


(E) The liquidation, if necessary, of the matrimonial property regime and the division of common assets and properties, in accordance with what is established in Article 43.

Article 77. Regulating agreement

Whenever marriage nullity, divorce or legal separation is petitioned by both spouses acting in common agreement, or by one of the spouses with the other spouse’s consent, a proposal for a regulating agreement shall be attached to the claim or initial writ.
In such a regulating agreement, the aspects indicated in Article 76 shall be dealt with.

Article 78. Judicial approval

(1) The regulating agreement mentioned in Article 77 shall necessarily be judicially approved, except in those aspects that may be harmful to the children. In such cases, the judicial authority shall indicate the points that need to be modified and shall establish the period for carrying out these modifications.


(2) Should the spouses fail to execute the requested modifications, or if these cannot be approved on the same grounds as those mentioned in paragraph 1), the judge will decide as appropriate.

Article 79. Absence of regulating agreement

(1) In cases of marriage annulment, divorce or judicial separation requested by one of the spouses without the consent of the other spouse, the judicial authority shall resolve on the aspects mentioned in Article 76 directly.

(2) If, further to considering the circumstances of the case, the judicial authority deems that the aspects cited in Article 76 can still be resolved by common agreement, such judicial authority may refer the spouses to a mediator or to a mediation institution so that the spouses may resolve their differences, and so that the mediator or mediation institution then submits a proposal of regulating agreement to which, if necessary, the provisions contained in Article 78 shall apply.

Article 80. Modification

(1) The measures established by the courts decision may be modified when subsequent circumstances so require. Such a modification shall be made by means of a judicial decree.

(2) The regulating agreement or the sentence may foresee the relevant modifications in advance.

Article 81. Court order

The payments established by the sentence may be collected by means of a compulsory court order.

Article 84. Maintenance

(1) In cases where one of the spouses financial situation has been impaired as a result of the divorce or legal separation and, in the cases of nullity of marriage, the bona fide spouse only, shall be entitled to receive maintenance from the other spouse. Maintenance shall not exceed the standard of living that the couple led during the marriage, nor the standard of living the spouse obliged to make the payment can afford to maintain.

(2) In order to assess the maintenance awards, the judicial authority shall take the following into consideration:


(A) The resulting financial situation of the spouses as a consequence of the nullity of marriage, the divorce or the legal separation, and the economic prospects for both spouses.

(B) The duration of the marital life in common.

(C) The age and health of both spouses.

(D) In cases where it applies, the specific economic compensation governed by Article 41.


(E) Any other significant circumstance.

(3) Maintenance shall be reduced if the situation of the person who is entitled to receive such an award improves, or if the situation of the person obliged to pay it worsens.

(4) Upon request of one of the parties, the decision may establish the relevant measures in order to ensure the payment of the award and may also establish objective and automatic criteria for updating.

Article 85. Payment of maintenance

(1) Maintenance shall be paid in money and in advance monthly payments.

(2) At any time, by agreement of the spouses or, lacking this, by judicial decree, the spouse obliged to pay maintenance may substitute this by delivery of assets in ownership or usufruct.

Article 86. Termination of maintenance

(1) The entitlement to receive maintenance shall terminate in the following cases:

(A) When the financial situation of the creditor spouse improves in such way that maintenance is no longer justified, or when the financial situation of the spouse who is obliged to pay it worsens in such way that the payment is no longer justified.

(B) When the spouse entitled to maintenance remarries or cohabits matrimonially with another person.

(C) When the spouse entitled to maintenance dies or is declared dead.

(D) When the period for which the payment of maintenance was established has elapsed.

(2) Maintenance shall not terminate with the death of the debtor, although his or her heirs may claim a reduction or the exoneration thereof, if the profitability of the inherited assets is not sufficient to pay maintenance.


Scotland: Family Law




Divorce Jurisdiction


Sections 7 and 8 of the Domicile and Matrimonial Proceedings Act 1973 give the Court of Session in Scotland jurisdiction in actions of divorce or separation if (a) jurisdiction is conferred under Council Regulation (EC) No. 1347 (“Brussels II”) or (b) the action is an “excluded action” and either of the parties to the marriage is domiciled in Scotland on the date when the action begins.An “excluded action” is one in respect of which no court of a Contracting State has jurisdiction under the Council Regulation and the defender is neither a national of an EU state (other than the UK or Ireland) nor domiciled in Ireland.

The Sheriff Court has jurisdiction if (a) the conditions for the exercise of jurisdiction by the Court of Session are met and (b) either spouse (i) was resident in the Sheriffdom for forty days ending with the date on which the action for divorce is commenced or(ii) had been resident in the Sheriffdom for at least forty days ending not more than forty days before the said date and has no known residence in Scotland at that date.


Custody Jurisdiction

If a court in Scotland is exercising jurisdiction in a proceeding for divorce, legal separation or annulment, it will have jurisdiction as to matters of parental responsibility over the spouses’ child if the child is habitually resident in Scotland. If the child is not habitually resident in Scotland, the court may still exercise jurisdiction if the child is habitually resident in another EU Member State;at least one parent has parental responsibility for the child; jurisdiction has been accepted by the spouses; andit is in the best interests of the child.

In actions relating to parental responsibilities which are not subject to the EU’s Brussels II regulation, jurisdiction exists where the childis habitually resident in Scotland oris present in Scotland and is not habitually resident in any part of the UK (unless, in either case, matrimonial proceedings are continuing in a court in the UK concerning the marriage of the parents of the child (Family Law Act 1986), when that court would have jurisdiction).


The formal validity of a marriage is governed by the law of the place where the marriage is celebrated. This law governs the validity of the ceremony and its elements e.g. whether any particular form of words must be used, whether the marriage must take place in a particular location, whether a marriage can be conducted by proxy.

The capacity of one person to marry another is governed by the domicile of the former immediately before the marriage. This law regulates issues such as whether there was consent, age requirements and which relatives one may not marry. In the case of age, no person domiciled in Scotland has capacity to marry abroad if under 16.

The issue of parental consent is slightly more complex. If under the law of the domicile absence of parental consent will render the marriage void no matter where in the world it is celebrated, then it is a matter of capacity. On the other hand, if it is a procedural requirement then it is a matter of formal validity. Marriages of young people aged between 16 and 18 without parental consent where those young people are from England but marry in Scotland have long been regarded as valid in Scotland, on the basis that the English requirement for parental consent is a formal one.


Divorce Law

In respect of a divorce, a Scottish court having jurisdiction and hearing the case will apply Scots law to the divorce proceedings. In proceedings for a decree of nullity, the law of the place of celebration or law of the domicile prior to the marriage will probably apply, depending on whether the alleged ground of nullity relates to formal or material validity.

In respect of maintenance obligations, a Scottish court will apply Scots law where it has jurisdiction and is hearing the case.


Matrimonial property regimes

In the absence of a marriage contract, the rights of the husband and wife in each other’s movable property (whether acquired before or during the marriage) is determined by the law of the matrimonial domicile at the time of the marriage. Where the domiciles of husband and wife are the same at this time, this will be the matrimonial domicile. It is not entirely clear what would happen if they were not the same. It is possible that a test of closest connection would apply, or that the court would look to the intended matrimonial home. The same rule probably applies to immovable property, though this is not totally clear and the law of the place where the property is located may also have a role to play.

If there is a marriage contract, the law applicable to the contract will govern. In the absence of choice, this is likely to be the law of the matrimonial domicile.


Personal status

At birth, a child’s domicile (the domicile of origin) is the same of the child’s father at the time of the child’s birth, if the child is legitimate. If the child is not legitimate, or if the father has died before the child is born, the domicile of origin is that of the child’s mother at the time of the child’s birth. This rule continues to apply until the child is 16, i.e. the domicile changes to follow changes in the domicile of the father or mother respectively. However, if the parents separate and the child has its home with the mother only, it can then take and follow the domicile of the mother, even though the domicile of origin was based on that of the father.

For persons over 16, their previous domicile continues to apply unless they take a domicile of choice. To adopt a domicile of choice, the person must live in the relevant country and intend to continue doing so indefinitely or permanently. If a domicile of choice is abandoned, the domicile of origin will revive to fill any gap until a new domicile of choice may be acquired.

The domicile of married persons is assessed independently of that of the other spouse, although clearly they are likely to have the same domicile if they are living together.

The issue of whether a person is domiciled in a particular country will generally be decided by Scots law, in the absence of any provision to the contrary in e.g. an international instrument to which the UK is party.

The right to name a child is part of parental rights and responsibilities, and if disputed the court would probably make a decision according to Scots law, which would require the welfare of the child to be treated as paramount. Adults are generally entitled to call themselves by what name they like in Scotland, so long as there is no fraudulent intent.

Capacity to enter into contracts, commit delicts, make wills etc is governed by different laws depending on the issue in relation to which the question of capacity arises.


Parent-child Relationship

The rights and responsibilities of parents in relation to their children would be determined according to Scots law whenever the Scottish courts have jurisdiction and are considering the case. Scotland applies the law of the forum in these matters. The same is true of adoption and guardianship. The overriding Scottish test in all these situations is the welfare principle.

So far as legitimacy of the child is concerned, this now has very few consequences in Scotland apart from domicile (see above). However, in an international case the child will probably be regarded as legitimate at birth if that is the case under the law of the domicile of either parent. In cases of legitimation by subsequent marriage of the parents, provided the marriage itself is valid under the appropriate choice of law rule, the effect of the marriage on the child’s status is probably dependent on the law of the child’s domicile immediately before it.

It is not clear what the Scottish applicable law rule is in relation to the issue whether a particular person is or is not a parent of a child.


Romania: Family Law

ROMANIA AND CHILD ABDUCTION: US Department of State 2005 Report on Compliance with the Hague


The Department of State has noted some improvements in the performance of the Romanian Central Authority over the past year, especially with respect to the level of responsiveness to requests for status updates and case information.  Hague cases continue to face lengthy court delays, although there have been some improvements in recent months.

Many of the problems cited in the last report continued in 2004, especially the use of psychological evaluations, an apparent lack of familiarity with the Hague Convention that results in judges and attorneys treating cases as custody determinations, and judicial determinations of resettlement that result because of cases languishing in the Romanian court system.  Delays in case processing on the part of a foreign government should not penalize children or left-behind parents.  The burden of proof lies on the taking parent to prove that the child is in fact re-habituated, and the child should still be ordered returned if the taking parent cannot demonstrate that the child is now integrated into that culture in such a way that his/her habitual residence has changed.

Romania passed Hague Convention implementing legislation in September 2004.  This legislation should improve Hague case processing, particularly because it centralizes the hearing of Hague cases in family courts, allowing the development of judicial expertise.  Under the provisions of this new law, Hague abduction cases are to be tried in the Child and Family Department of the Bucharest Court by family law judges who are trained in the provisions of the Convention.  The law became effective on December 27, 2004.  Pending cases have been or are in the process of being transferred to the new court.  The Ministry of Justice is in the process of drafting internal regulations for the processing of Hague Convention cases according to the new law.  The Department does have some concerns about the consistency of specific articles of the implementing law with the Hague Convention.  For example, the mandated involvement of psychologists in all cases raises concerns, as psychological reports can delay decisions and inevitably go to the merits of custody.  Since the implementing legislation was passed at the end of this reporting period, we will be alert to the effects the new legislation might have on pending and future U.S. Hague cases.