Family Law in a European Perspective
Edited by Jens M. Scherpe
Chapter 5: The financial consequences of divorce in a European perspective
This chapter deals with the substantive law of the financial consequences of divorce. These consequences can (but do not have to) include a division of property, certain periodical or lump sum payments, a sharing or division of pension rights (and similar) and the allocation of the use of the marital home and other assets. No ‘top-down’ European family law exists in relation to any of these, as the European Union has no competence to regulate such matters, and no cases on the financial consequences of divorce have yet been decided by the European Court of Human Rights. This chapter therefore is a purely comparative one. The financial consequences of divorce are regulated in very different ways amongst the European jurisdictions. Even the very basic understanding of the nature and structure of the financial consequences of divorce appears to be fundamentally different. The most obvious contrast here is between the common law jurisdictions of England and Wales, Northern Ireland and Ireland and the continental European jurisdictions of the civilian tradition. Only the latter know statutory matrimonial property regimes which play a pivotal role in the financial consequences of divorce. Without doubt, the division/allocation of (matrimonial and other) property upon divorce is also central to the common law jurisdictions but it is embedded in a wholly different system and approach; it is part of a holistic exercise which considers all the financial consequences of divorce at the same time.
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