Continental versus Anglo-Saxon divorce law

by BirkettsLaw on January 16, 2013

The breakdown of a marriage is never a pain-free affair, and having to deal with the legalities of dividing assets up equitably is far from easy. However, for those used to Anglo-Saxon law, the way in which divorce proceedings are dealt with on the continent may come as a bit of a surprise. Here’s a guide to some of the major differences between the various divorce laws in place around the European union and how they compare to divorce law in England.

Right to file

Before we examine the various laws in place around Europe, it’s first worth explaining where you are permitted to file for divorce. If you find the laws in another country more advantageous, you cannot simply file for divorce there because you want to, even if both belong to the European Union. However, there are some circumstances which do allow you to file abroad[1]:

  • If both you and your spouse live overseas you may file in your country of residence
  • For joint applications you may file in the country in which either of you live
  • If you now live apart, you may file in the country where you last co-habited, providing one of you still remains there
  • If you are the one petitioning for divorce you may file in the country where your spouse lives
  • You may only file in your country of residence if you have lived there in the preceding six months and hold nationality (you must have lived there for the preceding 12 months if you are not a national)

Denmark is the exception to these rules as the country has opted out of EU divorce law. It is also worth noting that some countries such as Spain, allow couples the option of using another country’s divorce laws if both parties are nationals from elsewhere. For example, a French couple resident in Spain could divorce in a Spanish court using French divorce law.

Divorce law in England and Wales

The divorce law applicable in England and Wales is worth a particular mention on its own because of its reputation as the most ‘friendly’ to either the woman or the party with fewer assets.

Many wealthy individuals fear getting divorced in England or Wales as not only do they face being stripped of more of their assets; they are more likely to be ordered to pay maintenance for an indefinite period. And unlike in countries such as France, there is no requirement for the spouse to prove a need for the maintenance payments and an end date does not have to specify (as it does in Scotland where it is normally limited to three years).


Pre-nuptial agreements have becoming increasingly more common in recent years as wealthier spouses attempt to protect their assets from being divided in the event of a divorce.

In England and Wales, a pre-nuptial agreement is not recognised as legally binding although the judge will take it into account. If the marriage has been short-lived there is a reasonable chance the pre-nup will be allowed to stand but if the couple have been together for a reasonable amount of time or circumstances have changed, expect to see the agreement completely disregarded.

France takes a very different view and almost provides a pre-nuptial agreement as part of its constitution. French law states that unless specified to the contrary, any assets acquired during the marriage – during not prior – shall be split equally upon the dissolution of the partnership. This is stated as part of the French Civil Code. However, any individual wanting a different arrangement can simply set up a marriage contract which as long as it is ratified by a notary will be recognised if a divorce takes place[2].

Grounds for divorce

Having made the decision to get married, you could be mistaken for thinking you also have the right to petition for divorce if you realise things aren’t working out. However, in some countries, a divorce is only granted when specific criteria are fulfilled.

In England and Wales, a divorce can be processed if the marriage has ‘irretrievably broken down’ as evidenced by any of five factors which include living separately, desertion, adultery and unreasonable behaviour. A divorce cannot be requested until the marriage has been in place for at least 12 months[3]. Many countries across the European Union have a similar set of values which stipulate what types of behaviour or actions are considered justifiable grounds for allowing a divorce to take place. In Hungary, the Family Law Act approaches things rather differently. Rather than setting out the criteria which has to be met for a divorce to be granted the court has the responsibility for deciding whether as a marriage has ‘completely and irretrievably broken down’. To do this they will examine the full facts and conduct an investigation; they are not concerned with the matter of blame, just whether the marriage can be saved. The only exception to the Family Law Act rules is if both parties agree that a divorce is the best way to proceed, then the courts will permit the action without further investigation[4].

Legal consequences

Once a divorce has been granted in England and Wales, both parties are free to go their own ways and may choose whether to revert back to their previous name or to go on using their adopted married name ³. In Portugal, the individual can only continue to use their married name if the other party provides legal consent or the courts agree[5]. In Italy, the consequences are a little bit more stringent.  The women will automatically lose her ex-spouse’s surname which she added to her own, unless she applies to the courts. She may then be allowed to retain her married title if it is in the interest of children or other parties. In addition, whilst conjugal ties are severed by divorce immediately in Italy, the woman is usually not permitted to remarry until a specified amount of time has passed (300 days). The man may remarry as soon as he wishes[6]. In the Czech Republic, if a divorcee wishes to revert to their maiden name, they only have one month from the date of the divorce being declared as final that they wish to do this[7].


There are a great number of other differences in divorce law across the EU, in particular how property is distributed and maintenance payments agreed. However, this is a vast area and far more complex in nature, with many variants. The above information gives a taste of the contrast between Anglo-Saxon and continental divorce laws which despite being part of a common union, are very different in places.


[1]    Source:

[2]    Kingsley Napley LLP – French versus English divorce outcomes

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Sally Reynolds of Birketts law helps out the Norwich solicitor company to give advice on different aspects of law.

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