This analysis is done on divorce laws and specially Irretrievable Breakdown of Marriage (IRBM) and property division on divorce in nations leading in women empowerment denoted by an index called Gender Inequality Index (GII). To find more details on different factors that contribute to calculation of GII please see this short and simple analysis –
In Netherlands the following two conditions need to be satisfied with evidence in order to file a divorce under this section –
a.Continuation of marital cohabitation has become unbearable
b.NO prospects exist for re-establishing a marital relationship to any extent
When both spouses move to court under this act, divorce is granted immediately and no further enquiry or reconciliation is made or attempted by court.
When only one spouse move to court under this section court do not make any inquiry and grants immediate divorce when –
I.Defendant acknowledges of irretrievable breakdown of marriage
II.If the defendant defers to the judgment of the court, and
III.If within six weeks no defense is lodged
Court interferes only when there is objection from one spouse and then the other spouse need to prove marriage breakdown. Also if one spouse can prove grave financial hardship on divorce the couple will be given chance to come to an agreement between themselves. There is no fixed percentage of property share that goes to one spouse. One more interesting fact is any child 12 years or older can oppose any agreement between his parents. Children are also assisted with lawyer services.
Maintenance – While deciding maintenance of a spouse court considers pension from matrimonial property and other factors like his / her ability to maintain self etc. Maintenance is limited to 12 years only for marriages with children and 5 years only for brief marriage and marriages without children.
In Netherlands property acquired by both the spouses including those acquired before marriage is considered as community property and is divided equally on divorce unless agreed otherwise in a pre-nup. Any gifts, inherited property is kept outside this division.
Swedish laws accepts unilateral divorce so even one spouse can move to court based on ‘no-fault’ divorce and the divorce will be granted. Fault has no relevance in Swedish divorce laws.
Here the maintenance granted to one spouse is only for a transitional period and it is assumed that the spouses are supposed to maintain themselves and all financial ties end with their divorce. Also the matrimonial property divided between the spouses has some bearing in the calculation of one’s maintenance needs.
In terms of division of matrimonial assets (property acquired after marriage) is divided after deducting the debts. Also if the property value is less or if one spouse will be in severe disadvantaged position after divorce the property may go to that spouse depending on different conditions. Gifts, inherited property etc are not considered for division.
In Swiss laws Irretrievable breakdown is a prerequisite in all different provisions of divorce. Generally if a couple lives apart for four years it is considered that the marriage is broken down irretrievably.
Regarding settlement of most of the issues including the spouses are given choice to enter into agreement but in matters relating to children court will interfere and check the best interests for the child.
Maintenance is need based and in terms of division of matrimonial assets, assets of both the spouses are considered and also one’s property worth is considered while calculating the need for maintenance etc.
Any one spouse can seek to live separately without stating any reason and after two years of separation they get divorce under this act.
Maintenance is normally granted for a maximum of 10 years irrespective of how long the couple was married. There is only one type of maintenance payment possible in the form of monthly payments. Maintenance amount is calculated based on claimant’s need for maintenance, other spouse’s ability to pay maintenance, duration of marriage and the need of financial support for education and the like. Also maintenance period depends on number of years of cohabitation.
Danish law determines the deferred community of property (the net estate) to be divided under the principle of equal division of property. It is considered that the wife will get equal share in husband’s property earned during the matrimonial period. Unequal division of property is possible if equal division is unjust i.e. when the marriage is short duration or considering the contribution and economic circumstances of the spouse etc.
In Norway any spouse can seek divorce after one year of separation or two years of non cohabitation even without any reason. Here a housewife is given equal share in husband’s property acquired after marriage for her care for the house. However, when it leads to very unfair result court may apply its discretion to divide the property acquired after marriage.
Maintenance is granted in rare cases and only for limited period. Each spouse is expected to maintain themselves after divorce. However, if one spouse have lost / sacrificed career for the children one is entitled for maintenance for a limited period.
Any one of the couple can move to court under this provision if either they are separated for three years or they jointly move to court under this act after one year separation.
In this country too the couple’s accrued gains during the matrimonial period is considered and then divided equally. Also one’s contribution to marital property and other matrimonial faults (if any) will be considered while deciding the proportion of division.
Finnish law on divorce is based on mutual consent and the concept of irretrievable breakdown is not applicable there. Here on normal divorce maintenance is granted to any spouse based on need and only per court’s sole discretion. However, property transferred through any gift / will, or any property that is personal in nature like pension rights or copyrights of unpublished work etc. is not divided.
Even though spouses themselves are responsible for property or debt acquired by them before or during marriage, any debt taken for the family is equally divided. Here property division is considered with one’s property acquired before or after marriage. Any such division of property in most cases agreed in pre nuptial or other agreements between the spouses.
In Slovenia upon divorce only the joint property is divided either based on a mutual agreement between the spouses or with court’s interference. Normally it is considered that the assets acquired within the span of marriage the share had been equal unless any spouse proves otherwise. Also prior to decide on any share in property the debts accrued in marriage is taken care of and only after all debts of the couple is taken care of property is divided.
Also during such division if there is any asset that is important for one spouse to conduct his / her income, those assets are given to the spouse in question based on his / her request.
Normal gifts given during or before marriage need not be returned but other gifts that are not proportionate to the property state of the giver must be returned. If the original gifts are not in place equivalent value need to be returned.
In France the concept of IRBM is not in place but their Articles 237 and 238 of French Civil Code has provisions similar to this. Under these sections any spouse can move an application under this section if –
I. When the spouses have live separately for six years
II. One partner claims that the mental health of other spouse has changed so much that a conjugal life is no longer possible
Maintenance can be paid to one spouse based on change in social condition due to divorce. Maintenance is also adjusted against division of community property if any and keeping in view the deterioration of living standards of the weaker spouse. This law also authorizes the state to transfer property in the name of one spouse to the other based on conditions.
In France if one spouse is moving to court based on six years separation one has to maintain the other spouse financially. This can be terminated if the other spouse is living with another partner outside their marriage.
Iceland is known as the happiest country in the world. In Iceland laws regarding divorce and division of property are simple in nature. Normally the couple decides the division of property beforehand through a matrimonial contract but in absence of such a contract the matrimonial assets are divided into half.
Any person is responsible for his / her debts individually and only the debts taken for common good is shared equally.
We all think India is shining and very soon we will catch up with the western nations in terms of development. While the previous analysis on different factors concerning Human Development and Gender Equality shows that we have hardly looked into the real factors of development and hence we are comparable only to African nations in terms of development today.
The proposed legislation which is brought in the name of women empowerment says any duration of marriage can come under this purview if there is a separation of three years. Only the wife is given right to oppose to such a divorce under ‘grave financial danger’. The proposal is that the property acquired by only the husband during the course of marriage and all his inherited, inheritable and shared property comes for division. Property acquired by the wife or her ancestral property or any of her shared property is not taken into consideration for division.
The bias in terms of extortion of men is very clearly visible in these provisions.
Unlike the developed nations, in India we do not have any concept of pre-nuptial agreement or community property where both spouses contribute and hence on divorce they get equivalent share back from their contribution. Also as evident in different other countries legislation states that expensive gifts etc exchanged between the spouses are also returned on divorce. In India however there is no provision for that (so men will think many times before they buy that diamond necklace or flat for her). Moreover in all other countries gifts or any other property that is personal in nature remains with the owner, but we don’t have any provision like that here.
In absence of so many vital parameters like pre-nupital agreement, concept of community property etc and with overwhelming bias against any female contribution to a matrimonial union (this is considered as dowry and the husband and family is booked under different criminal provisions) makes our marriages completely with zero contribution from the wife. Even if the wife is working and earning money she is not entitled to pay anything to the family and if the husband asks for money from her that is considered as domestic violence and again becomes punishable offence. The provisions made in this legislation are completely biased and rather regressive in nature. This legislation will not only refrain men in the country from entering into matrimonial union but this will also stop them from investing in any property and it will become the responsibility of the woman to buy property instead. The women who can not afford to buy any property will not get married.
Also there is no provision to check if the wife has really taken care of the home or the husband was forced to keep domestic helps to help her. Under normal circumstances, all of us have some domestic duties to perform. If the wife cooks, or takes care of children at home, husband also has non-documented duties like bringing grocery, taking care of household maintenance, taking kids to school or may simply provide for wife’s jewelry and make-up. There are many husbands who help their wives in many other domestic duties as well including nurturing the baby but there is no provision to pay them for that.
A husband works in a very competitive environment, under pressure situations with constant fear of losing a job under changing market conditions. Whereas a wife who has no competition from anyone, she has no checks and balances to perform in her job and in Indian system she one can not be forced to do any domestic duty there is practically no equity that can be brought in.
Many developed countries in the west have concept of spousal duty in marriage which is absent in India. We consider marriage as holy bond and not a contract but in this holy bond we are making provisions of extortion for men and making it dirty in nature.
When China realized the danger of property division and one’s property going to the other spouse, and revoked the property division clause recently, sadly enough in India we are trying to implement this in our country. If this legislation is brought in, in present form and not overhauled completely to make it gender neutral, take away any incentive for divorce and also make pre-nupital agreement and a contribution (financially as well as duty wise) must from the wife in any marriage, we will very soon see a situation of disturbance in India, as illustrated in this article –
“GROUNDS FOR DIVORCE AND MAINTENANCE BETWEEN FORMER SPOUSES” by Prof. Katharina Boele-Woelki, Olga Cherednychenko and Dr. Lieke Coenraad of Molengraaff Institute for Private Law, University of Utrecht
“GROUNDS FOR DIVORCE AND MAINTENANCE BETWEEN FORMER SPOUSES” by Prof. Dr. Maarit Jänterä-Jareborg of University of Uppsala
“GROUNDS FOR DIVORCE AND MAINTENANCE BETWEEN FORMER SPOUSES” by Prof. Heinz Hausheer and Dr. Stephan Wolf of University of Bern
“GROUNDS FOR DIVORCE AND MAINTENANCE BETWEEN FORMER SPOUSES” by Prof. Ingrid Lund-Andersen and Lise Krabbe of Department of Private Law, University of Århus
“GROUNDS FOR DIVORCE AND MAINTENANCE BETWEEN FORMER SPOUSES” by Prof. Tone Sverdrup of Department of Private Law, Faculty of Law, University of Oslo
“GROUNDS FOR DIVORCE AND MAINTENANCE BETWEEN FORMER SPOUSES” by Prof. Dieter Martiny of Europa-Universität Viadrina Frankfurt (Oder) and Prof. Em. Dieter Schwab of Universität Regensburg
“GROUNDS FOR DIVORCE AND MAINTENANCE BETWEEN FORMER SPOUSES” by Prof. Matti Savolainen and Helsinki
“National Report – Finland” by Eva GOTTBBERG of University of Turku
“GROUNDS FOR DIVORCE AND MAINTENANCE BETWEEN FORMER SPOUSES” by Prof. Frédérique Ferrand of University of Lyon
“Matrimonial Property in Europe: A Link between Sociology and Family Law” by Branka Rešetar Faculty of Law, J.J. Strossmayer University, Osijek, Croatia and Published in Electronic Journal of Comparative law