The financial consequences of divorce across Europe

Abstract

The article examines where the main European legal systems stand as regards the financial consequences of divorce, trying to draw conclusions on the direction and speed of developments from the experience of these systems. First, the questions of how matrimonial property rules operate in the event of divorce and how they interact with the financial remedies provided by the law on divorce are examined. Next, the focus is shifted to the issue of maintenance after divorce. Recent legal developments seem to indicate that a tendency to lessen the importance of maintenance and comparable claims is becoming even more pronounced.

Economic Gender Equality and the Decline of Alimony in Switzerland

“…While alimony determination under the former law was closely linked to the question of fault, the new regime has sought to limit alimony to highly dependent spouses. In this respect, these trends in Swiss divorce law are comparable to broad tendencies toward a greater focus on clean breaks and increased economic self‐sufficiency in the divorce law of other developed countries (McMullen 2014; Ribot 2011).…”

“…Since the main function of alimony is to compensate for economic inequality among divorced couples, a declining trend in alimony is likely to be the consequence of greater economic equality between husbands and wives. Scholars of European and U.S. divorce law (McMullen 2014; Ribot 2011), however, have made the counterargument that, rather than resulting from passive adaption to new social realities, reductions of alimony orders have been due to a deliberate reorientation of alimony law, which, by limiting alimony, has sought to facilitate divorces and to cause gender equality. Focusing on the case of Switzerland before and after the abolition of fault‐based divorce in 2000, this study tested the first of these two explanations by examining the extent to which the decline in alimony is a consequence of reductions in the inequality of economic resources and needs between divorcing wives and husbands.…”

“…Marital property regimes provide relatively clear guidelines for how wealth that spouses brought into or accumulated during marriage is to be divided upon divorce, and laws pertaining to child support have become highly formalized in recent decades (Skinner & Davidson 2009). However, in both European and U.S. divorce law practice, rules governing the determination of support orders to divorced ex‐spouses, that is, alimony, are much less formalized and vary greatly between contexts (Oldham 2017; Ribot 2011; Starnes 2011).…”

“…In such a context, it is unsurprising to find that alimony is on the decline. In Scandinavian countries, alimony had already become a marginal phenomenon early on in the 20th century (Laplante 2016; Ribot 2011), while downward trends in alimony have also been confirmed more recently in the United States, Germany, and France (Bredtmann & Vonnahme 2019; McMullen 2014; Ribot 2011). U.S. law scholar Judith McMullen expects that alimony will “probably sooner rather than later” be restricted to couples in highly particular circumstances (McMullen 2014).…”

“…Yet, reductions in alimony have also been linked to divorce law playing a more active role. Many have claimed that reduced alimony is the result of changes in the ideals underlying legal texts and their application by courts (McMullen 2014; Oldham 2017; Ribot 2011; Schwenzer 2009). Specifically, alimony law is increasingly thought of as being oriented toward the principle of “clean financial breaks.” This notion advocates the avoidance of alimony in the interest of speeding up the divorce process (cf.…”