At present, married couples can only divorce through the courts, even if they have no minor children and agree on the divorce. This has frequently raised questions as to whether divorce can be arranged without going to court for this group at least – a so-called non-judicial divorce. Commissioned by the WODC, researchers from Tilburg and Nijmegen have therefore mapped out international developments in this area and conducted an online survey among more than 400 divorced individuals and other stakeholders in the field.
Citizens are in favour, but benefits are limited
The survey shows that the vast majority of citizens surveyed are in favour of the option to divorce without going to court. Many respondents feel that the current role of the court is limited in practice. Most have made their own arrangements regarding the consequences of the divorce, usually with the support of a professional. ‘People assume that an out-of-court divorce is quicker and cheaper,’ says Machteld Vonk, professor of International and European Family Law and one of the authors of the report.
However, Vonk warns that these benefits are limited in practice. ‘A divorce is already dealt with relatively quickly through the courts, and the biggest cost is not the court itself, but the fees for hiring a solicitor.’ The solicitors, civil servants, mediators and other professionals with whom Vonk and her colleagues spoke also recognise this picture. ‘They see little direct efficiency gain in removing the court.’
Legal protection remains essential
Because: if you remove the court, who can then grant the divorce? You need to think carefully about whether that role should then fall to, for example, a solicitor, a lawyer or a civil servant. Vonk: ‘The court is seen as playing an important role in the legal protection of citizens. Divorce is an emotional time, and you want to prevent people from making hasty decisions that turn out to be detrimental to them. But in practice, removing the judge has hardly any impact on that. Legal protection also lies with the professionals, usually a solicitor or mediator, who guide the parties through the divorce. Without a judge, someone else must be able to assess whether people are capable of making well-informed choices under stress. And the question is: who would that be?
In many other EU countries, there is indeed a procedure for divorce without a judge. The specific details vary greatly from country to country, but in all countries, checks are carried out to ensure that the legal conditions for the procedure are met. In some countries, a substantive review is also carried out of the agreements made by the parties, for example to protect the interests of both parties. Measures such as cooling-off periods, mandatory information sessions or the involvement of a solicitor are also used, but it is noted abroad too that it is important to ensure that citizens are protected during the process.
In the report, the researchers outline eight possible procedures for extrajudicial divorce and discuss the associated advantages and disadvantages of each of these procedures. Key conclusion: there are no general advantages or disadvantages compared to the current situation; these depend on how the non-judicial divorce is implemented. According to the researchers, whether a procedure is ultimately introduced and what form it will take is a matter for politicians.