Legal regulation of marriage dissolution in Lithuania
| Autor | Dalia Perkumiene |
| Páginas | 291-304 |
Page 291
In most countries, divorce requires the sanction of a judge or other authority in a legal process to complete a divorce. A divorce does not declare a marriage null and void, as in an annulment, but divorce cancels the marital status of the parties restoring their state to divorce, which is a single status, allowing each to marry another person1.
Under Article 3.49 of Lithuanian civil code there are two cases of dissolution of marriage:
-
A marriage is dissolved by the death of one of the spouses or by termination by the operation of law.
-
A marriage may be dissolved through a court decision of divorce by the mutual consent of the spouses, on the application of one of the spouses or through the fault of a spouse (spouses).
In the case of dissolution of marriage by the death of one of the spouses a marriage is dissolved:
Page 292
-
By the death or a court judgement of presumption of death of one of the spouses;
-
Where one of the spouses is presumed dead, the marriage shall be considered dissolved from the date on which the court judgement becomes res judicata or from date specified therein.
If the spouse, who has been presumed to be dead by a court judgement, turns up, the marriage may be renewed by the presentation of a mutual application of the spouses, after the annulment of the court judgement of presumption of death, to the Registry Office that registered the dissolution of marriage (Lithuanian Civil Code…, 2001). A marriage may not be renewed if the other spouse had remarried or there are impediments under Articles 3.12 to 3.17 of civil code2.
Divorce laws vary considerably around the world. Philippine law, in general, does not provide for divorce inside the Philippines. The only exception is with respect to Muslims. In certain circumstances Muslims are allowed to divorce. For those not of the Muslim faith, the law only allows annulment. Article 26 of the Family Code of the Philippines does provide that:
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law (The Family Code of the Philippines…, 1987).
The largely Catholic population of the Republic of Ireland long has tended to be stayed averse to divorce. Divorce was prohibited by the 1937 Constitution. In 1986, the electorate rejected the possibility of allowing divorce in a referendum. Subsequent to a 1995 referendum, the Fifteenth Amendment repealed the prohibition of divorce, despite Church opposition. The new regulations came into effect in 1997, making divorce possible under certain circumstances. In comparison to many other countries, it is difficult3 to obtain a divorce in the Republic of Ireland (Divorce…, 2010).
Page 293
Swedish4, Russian5, and Dutch laws6 provide in some cases for what amounts to divorce on demand without any inquiry into the reasons therefore and without a waiting period. Those differences are far from being merely of a technical legal nature. They result from different ideological perceptions and different family policies. Countries with permissive divorce law generally share the conviction that law is powerless to deal with a family breakdown and generally respect the autonomous decisions of the spouses themselves regarding the dissolution of their marriage. The legislature in countries with more conservative divorce laws still seems to believe that restrictive divorce law could help in lowering the divorce rate. Therefore their divorce law is based on considerable state intervention when deciding whether or not to grant a divorce. This difference in approaches makes the current legislative differences not easily reconcilable.
In Denmark (§ 42 Danish Marriage Act) if both spouses apply for a divorce together they can obtain a divorce by consent through an administrative procedure at the state county office. They must agree that they want a divorce through an administrative process - as well as upon certain ancillary matters. However, it should be noted that if the couple wish to become formally separated7 they must appear before a state county office, but if they both agree then no further attendance is required although both must sing the divorce petition (Boele-Woelki, 2003; 2004).
In Norway a divorce is granted by means of an administrative procedure whether or not the parties are in agreement. Only in a few cases will the decision be taken by the court; for example if a divorce is granted on grounds of abuse, or if the spouses do not agree on some specific factual circumstances8.
In the Netherlands (Art., 1:149 and 1: 77 a Duch Civil Code) a divorce can only be obtained through a judicial process. The one single ground is irremediable breakdown of the relationship. Either one partner can ask the
Page 294
divorce or both on mutual request. However, as a result of the Act Opening Marriage to Same-Sex Couples, with effect from April 2001, it is now possible to obtain a so-called “lightning divorce” by converting the marriage into a registered partnership which can be done without court intervention and theoretically within 24 hours. This is effected by both spouses requesting the Civil Registry office to draw up an act of transformation. Registered partners can then simply dissolve their partnership by mutual consent (Boele-Woelki, 2003).
The main difference between the divorce laws has shifted from the dichotomy of fault – non-fault divorce to the discrepancy regarding the accessibility of divorce. The difference between fault-based divorce and divorce on the ground of irretrievable breakdown has dominated the picture for a long time, but is now losing its relevance. This is because there are no longer any countries in Europe which maintain exclusively fault-based divorce as the sole ground for divorce. Therefore, the spouses can always choose between fault and non-fault grounds. Moreover, uncontested fault-based divorce in countries like England and Wales or France sometimes provide a ‘shorter road’ to divorce than non-fault ones and are therefore chosen by the spouses by mutual agreement. The moral negative connotation which once rested on the fault-based divorce is also evidently lessening (Antokolskaia, 2003; 2006).
The legal grounds for divorce in the USA are different from state to state. Many states have retained traditional fault grounds in addition to no-fault9 or separation-based provisions. Fault-based grounds include cruelty10, adultery, and desertion for a specified length of time, confinement in prison, and impotence that was not disclosed before marriage. Fault-based grounds can be used to circumvent the period of separation required for a no-fault divorce. To get a no-fault divorce, one spouse must simply state a reason for the divorce that is recognized by the state. In most states, it is enough to declare that the couple cannot get along (this reason goes by such names as “incompatibility,” “irreconcilable differences,” or “irremediable breakdown of the marriage”). In some states, however, the couple must live apart for a period of months or years before they can obtain a no-fault divorce. Furthermore, in some states the faultless spouse may be entitled to a larger financial settlement (Stewart, 2007).
Comparing various systems of divorce laws in accordance with the aforementioned criteria, one cannot easily find much in the way of a common
Page 295
core therein. In spite of the clear tendency towards the liberalisation of divorce, the differences might persist for a rather long period of time.
Like in most European countries also in Hungary there is a tendency that marriages do not function as they are expected to in the long run, which causes a huge social problem. More and more couples get divorced after shorter and shorter marriages. Following the tendencies in other European countries, in Hungary, too, fewer and fewer couples get married.11 The number of divorces has been permanent for decades12 but because of the lessening desire for getting married, and due to the spread of the more and more popular form of living, namely cohabitation, nowadays every other marriage ends in a divorce. Now one cannot say that marriages last till death do them apart.
This is worrying mainly because of the negative effects made on the common child, and is remarkable from a demographic point of view, as well. Now it is almost a cliché that divorce is quite devastating to the child’s psychological development and has extensive consequences regarding their willingness to get married and to establish a family. Furthermore, it causes problems on social level as well, that is in instable, weak emotional basis marriages are fewer children born. In addition, in numerous cases the couples get divorced even before the first child is born. It causes a severe problem if – according to current tendencies – they got married at a relatively older age and the wife is in her late thirties...
Para continuar leyendo
Solicita tu prueba