Denmark reins back on liberal divorce laws

Divorce|International|July 23rd 2019

At a time when we are in the process of making major reforms to our divorce laws, it is always useful to see what other countries are doing (regular readers may recall that back in March I looked at a report comparing divorce laws in other jurisdictions). I was therefore interested to read a news story on Monday informing me that Denmark has recently made changes to its divorce laws.

Now, I am no expert upon Danish divorce laws, but my understanding is that their system is one of the most ‘liberal’ around. Or at least it was, until April. If the parties agreed, they could simply file an online application, and the divorce would take place pretty well immediately. Even if the parties did not agree, an immediate divorce was still possible, for example if the other party had committed adultery.

But it seems that Danish lawmakers have been alarmed by the rising divorce rate. Apparently, in 2018 there were some 15,000 divorces there, almost half of the marriages that year. And the story was similar in 2017. To counter this, the divorce laws were amended in April, making divorce just a little more ‘difficult’, at least for some.

According to the reports I have read, the amendments take two main forms, introducing new requirements before the marriage can be dissolved. Firstly, couples must now go through a three month ‘period of reflection’ after completing the divorce application, and secondly, if they have children under 18 they must undergo counselling. It seems that these changes have been broadly welcomed in Denmark.

The counselling requirement requires a little more explanation. It has nothing to do with saving the marriage. Rather, it is to do with ensuring cooperation between the parties after the divorce. The counselling course can be taken online, or via an app. The parents can tailor the course to their requirements “from 17 half-hour modules offering concrete solutions to potential areas of conflict during the divorce process, including how to handle birthday parties or how to talk to an ex-partner when angry.” It can be anything between one and fifteen hours long. The course was trialled with 2,500 volunteers before it was launched, and has apparently been very successful, one comment being that: “After 12 months, couples were communicating with each other as if they had not divorced.” Impressive.

The question is, can we learn anything from this? Well, yes, perhaps we can.

The first interesting thing relates to the introduction of a period of reflection. This is, of course, something that has always found favour over here when consideration has been given to introducing no-fault divorce. Under the current attempt to introduce that reform, the Divorce, Dissolution and Separation Bill, the government favours a twenty week period, and a minimum six-month timescale for the divorce overall. Some, including myself, have queried whether any period is required at all. After all, the marriage is already over when the divorce starts – virtually no one changes their mind. That a country which had such a ‘liberal’ system now sees the need for a period of reflection is perhaps instructive, although whether having no period actually increased the divorce rate, I somewhat doubt. Obviously, it will be interesting to see if the rate now slows in Denmark.

The other thing about the period of refection is its duration. I’m pretty sure that I’ve said here previously that if we must have a period of reflection, then surely three months is enough. Why make couples wait six whole months for the inevitable? The Danes seem to agree.

The counselling requirement is also something that has been mooted over here, but is not presently in the government’s plans, at least as a compulsory requirement before the divorce can go through. In fact, these days in this country anything to do with children is pretty well separated from the divorce process (until 2014 the court had to be satisfied about arrangements for any minor children before the divorce could go through, but that requirement was removed).

Whilst I usually baulk at ‘nanny state’ impositions upon citizens, I certainly can see that anything that reduces parental conflict must be a good thing – that goes without saying. If counselling in Denmark is really as successful as the trial suggested, and if it does reduce parental conflict and disputes over arrangements for children, then perhaps we should consider it on this side of the North Sea as well.

All in all, food for thought for those concerned with the Divorce, Dissolution and Separation Bill, as it progresses through Parliament.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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