Strasbourg, 15 September 2003

CEPEJ(2003)19

Working party n° 2 of European Commission for the Efficiency of Justice (CEPEJ-GT2)

“Users of the justice system vis-à-vis the slowness of justice: how to react?”

Report by Ms Gabriela THOMA-TWAROCH (Austria)

The decision to seek a divorce is not, or should not be, a spontaneous act, but the result of careful thought. Once the divorce petition has actually been started, the parties already feel a great sense of unease even though the divorce process has only just begun.

With a view to improving legislation in Europe, we shall suggest measures to be taken in the divorce field. But in order to put forward actual recommendations to states regarding possible measures for alleviating the distress of the parties to a divorce (II), we must first investigate the causes of this distress (I).

I – THE CAUSES OF THE DISTRESS SUFFERED BY THE PARTIES TO A DIVORCE

The causes of the distress suffered by the parties to a divorce are mainly psychological (B) and economic (C). However, we first need to consider the extent to which legal procedural rules affect the distress suffered by the parties, by analysing first of all their legal position in the different divorce procedures.

A- THE LEGAL POSITION OF THE PARTIES

Where a legal system recognises fault-based divorce, the divorce proceedings are dominated by the search in the past for wrongs that are potentially attributable to the parties.

The spouses, hitherto joined by an emotional bond, now find themselves confronted with one another before the judge as adversaries, each trying to prove the other’s wrongdoing and his or her own innocence.

The spouses’ legal position in the divorce proceedings is thus reduced to mobilising their energy to seek faults legally attributable to the other party.

As civil proceedings must ensure a fair trial as defined in the European Convention on Human Rights, the exhaustion of domestic remedies, on the one hand, and the constant increase in the civil courts’ caseload (due to the constant reduction in public sector staffing levels), on the other, lead to protracted divorce litigation.

Moreover, in many European legal systems, the conclusion of the divorce proceedings does not resolve all former couples’ legal problems, even if the question of fault has been clarified.

It is not until a decree of divorce has been granted and become final that subsequent issues such as those of parental authority, maintenance and the division of matrimonial assets can be settled.

This legally imposed extra stage in the proceedings often drags out the process even further, which is an additional distress factor for the parties, as their financial situation in the years to come may depend entirely on the outcome of the proceedings.

For instance, the steps that have to be taken to verify that the legal requirements are met regarding the question of maintenance prolong the divorce proceedings and create a particularly burdensome situation for the parties.

The same applies to the disposal of common property, which cannot be decided on until a decree of divorce has been granted and has become final.

Some countries even have a system where the “innocent” spouse has the right to choose, which forces the parties to pursue the divorce proceedings in a ruthless manner, using all possible tactics to ensure a financially secure future.

Any legal system which is prepared to accept lengthy proceedings to resolve the legal consequences of a divorce exposes the parties to the risk of substantial and largely unforeseeable procedural costs.

We therefore see the need to create more flexible procedural rules which would enable judges to settle the dispute in part.

Furthermore, it is necessary to reiterate the numerous recommendations made at the various Council conferences to the effect that the consequences of a divorce should be dealt with separately from the issue of fault, in order to arrive at a situation where the judge is able to focus his or her efforts on guiding the parties towards a future solution and thus establish a balance between them. They would not waste their energy looking for past wrongs that can be attributed to the other party, but would build a solution for the future.

Take the example of a couple in their early 30s, married for five years, who have two children aged two and four from their marriage.
The husband asks for a divorce, accusing his wife of not looking after the house or bringing up the children properly, and especially of being unfaithful. For her part, the wife accuses him of aggressive behaviour and repeatedly proffering insults and threats.

The wife’s unstable psychological state makes the situation even more precarious. The divorce has triggered a worsening of her illness and she requires psychiatric treatment.

The husband has a medium income, but the wife is unemployed.
The divorce proceedings last for two years and a divorce decree is granted on grounds of shared fault.
All conciliation attempts failed and the parties changed lawyers several times in the course of the proceedings. Admittedly, after two years, the parties’ respective faults have been established and the divorce decree has been granted, but not all the consequences, such as the question of maintenance, the division of the matrimonial assets and that of parental authority, have yet been settled.

Through this example we can identify points that warrant criticism but also offer solutions that will lead people to take a fresh look at the problem of divorce. In the first instance, we must try to let the parties themselves deal with the situation and find solutions. The most effective way of achieving this is to increase the potential for conflict resolution both by the spouses themselves and through counselling and mediation. If these means do not achieve the desired result, the proceedings before the judge should take the form of a settlement for the future rather than an attempt to classify as a fault in legal terms an act committed in the past that triggered the divorce. That would lead to energy being channelled into the settlement of such issues as parental authority, child maintenance, access, etc.

Settling the question of the effects of the divorce should take precedence over the granting of the divorce decree.

Even the question of which of the two spouses will remain in the matrimonial home should be settled before a divorce decree is granted. Legal proceedings are not only a burden on a state’s political economy, but also a heavy burden on the couple concerned.

B- THE PSYCHOLOGICAL SITUATION OF THE PARTIES TO A DIVORCE

Although the number of divorces is increasing, divorce still represents a drastic change in life and is a critical event for both partners. This demands an ability to adjust and overcome a challenge on several levels. The speed with which the newly single will resolve their problems and overcome the crises of the first few years depends on several factors.

Material, social and financial resources play a crucial role in this process. Whereas the party who does not have parental authority initially faces difficulties of isolation from his or her ex-family, and separation from his or her children, the party who obtains parental authority is confronted with a deterioration of his or her social and financial situation. Both parents find themselves in a new role which does not always tie in with their experience of life. For instance, they will have to acquire new parenting skills as a result of the new definition of the family unit (Schwarz/Noack 2002).

Let us return to our example: no friendly settlement has been reached and for years the discussion has revolved around the same question, namely which of the two spouses will obtain parental authority. This shows to what extent the emotional factors weigh on the parties and create an obstacle to the process of reorganisation.
(Lengthy proceedings mean a longer wait for a court decision, which prevents the former spouses from coming to terms with their emotions and building a new life.)

C- THE ECONOMIC SITUATION OF THE PARTIES TO A DIVORCE

Divorce signals a new economic direction for the family. Several factors play an important role in this reorganisation:

    - the need for two different homes after the divorce
    - the question of the division of jointly owned real property
    - the question of a compensatory payment to equalise the situation of the ex-spouses and whether one of the ex-spouses can be required to make such a payment
    - the disappearance of any savings potential as a result of the dissolution of the economic community
    - the apportionment of matrimonial debts.

This deterioration of the economic situation due to the divorce calls for certain changes, such as adjustment to a new, lower standard of living, which represents a major stress factor for both ex-spouses, especially in rural areas.

Whereas the woman’s economic independence and the certainty of being able to support children through a gainful occupation may have a calming effect, the man’s private problems may spill over into the work field, resulting possibly in professional failure, the loss of career prospects and, eventually, a reduction or loss of income.

Few men seek advice in support centres, while women derive comfort from these offers of advice. But both refuse to be exposed to the arbitrariness of these institutions and of legal rules (Beham/Haller /Werneck/Wilk/Zartler in Ursachen und Folgen von Scheidung und Trennung für Kinder Frauen und Männer , Studie durchgeführt am Europäischen Zentrum für Wohlfahrtspolitik und Sozialforschung, Juli 2002,S441).

The situation is made even worse by the fact that the economic consequences of the divorce proceedings are not foreseeable. The need for a discretionary decision by the judge to achieve a balance between the parties leads to unforeseeability, in a negative sense, as to the decision and makes it impossible to imagine what life will be like in the future. Future spouses should be given increased possibilities for signing a marriage contract allowing for the eventuality of divorce.

In the case of an international marriage involving the law of more than one state, the spouses should be allowed to choose the law by which they wish the effects of their marriage to be governed.

One cannot, therefore, reduce the burden weighing on the parties merely by issuing rapid and foreseeable judicial decisions.

II - RECOMMENDATIONS TO STATES

There is room for improvement both in the procedural stage and outside the judicial proceedings proper.

The measures that could taken are of two different kinds: the first possibility is to adopt provisional measures, the second to introduce and manage alternative conflict resolution methods.

A- NEED FOR PROVISIONAL MEASURES

After analysing the psychological and economic situation of the parties to a divorce, we must emphasise the need for procedural rules that can rapidly create a structure for a reorganisation of the family.

In the event of a family conflict being triggered as a result of a divorce, provisional measures taken in the field of family law could provide the family court judge with a remedy against a worsening of the conflict. These would be provisional measures providing quick answers to the issues raised, but without finally resolving the dispute. In this way, protection would be provided against physical and verbal violence, the question of maintenance would be dealt with and any financial or other loss would be averted. (Ass. Prof. Mag. Dr. Ingeborg Mottl, in Ursachen und Folgen von Scheidung und Trennung für Kinder, Frauen und Männer, Studie durchgeführt am europäischen Zentrum für Wohlfahrtspolitik und Sozialforschung, Juli 2002).

Studies have shown that, in the context of a separation, the potential for aggression increases once the victim tries to get out of that role.

States should therefore introduce a civil law protection mechanism for the victims of violence during divorce proceedings in order to calm things down.

Some states have introduced provisional family protection measures under which the violent party can be forced to leave the matrimonial home and prohibited from having any contact with the victims.

Experience has shown that emergency measures of this kind have a calming effect and are a means of securing a future settlement. The success or failure of such measures depends entirely on the speed with which they are ordered.

These measures should not be confined to cases of violence. It is essential to extend them to the areas of parental authority and child maintenance in cases where the potential for conflict between the spouses would make it impossible to find an immediate solution in these sensitive areas (Austria: Gewaltschutzgesetz 1997).

Provisional measures are a means of protecting the weaker party and offer the possibility of reaching a final solution.

    Let us look at the case of our couple in their early 30s: imagine that the question of the division of assets has been settled, but that parental authority is now in dispute. The divorce proceedings will focus once again solely on the issue of fault, with the judge deciding in favour of the party less at fault. A lengthy process will thus be set in motion without the central issue of parental authority being addressed.

The only way out of this impasse is to give the judge the opportunity to settle the question of parental authority before anything else, since a decision will in any case have to be taken. Hence, the issue of fault will no longer interfere with the conduct of the proceedings, and the decreased importance attached to this issue will open up possibilities for reaching a friendly settlement. This calls for flexibility of procedural rules.

B- MEDIATION

In order to ascertain the parties’ ability to resolve their conflict themselves, they should be required to attempt mediation before contentious proceedings are started.

The advantage of mediation is that the effects of the divorce can be determined, and an arrangement can even be reached, without recourse to the courts through the intervention of specialists (psychologists and lawyers) who will be able to create a “win-win” atmosphere in the sense of “optimum co-ordination of competing interests” (Breidenbach/Henssler, Mediation). To guarantee the effectiveness of mediation, it is crucial to ensure that parties who opt for this solution enjoy extensive legal protection. (Since the 1999 Matrimonial Law (Amendment) Act), Austria has introduced a mechanism of this kind, which suspends all prescription periods and time-limits related to the divorce during the mediation procedure. Furthermore, under Article 301, para.1 of the Criminal Code in conjunction with Article 99 of the Marriage Act, mediators are required to observe confidentiality.)

The need for explanation, understanding and the joint search for a solution cannot be met through judicial proceedings. The fundamental purpose of civil proceedings is to resolve a conflict of interests between two parties. At the end of the proceedings there is a winner and, necessarily, a loser. Not all elements in this are necessarily suited to the requirements of divorce proceedings. Proceedings which drag on for years weaken the spouses’ financially and lead to depletion of the matrimonial assets.

For this reason, we propose looking for solutions in the form of alternative, non-judicial methods - such as mediation - which would provide solutions to individual problems, so that judicial proceedings would only be necessary if any specific contentious issues remained outstanding.

C- LEGAL AID AND INFORMATION

The concept of “poverty after divorce” shows the need for financial support for the conduct of the judicial proceedings.

The question of whether the use of a lawyer in divorce proceedings should be compulsory is under discussion in many countries. In view of the economic and personal consequences that a divorce may have, it would be preferable to envisage compulsory representation by a lawyer and create an extensive information network.

In this field, states should allow wider access to legal aid. This will guard against any financial imbalance between the spouses and ensure that the spouse who is in the weaker financial situation will not be in an even worse position at the start of divorce proceedings.

It was out of a concern for efficiency that the European Union issued a directive aimed at improving access to justice in cross-border cases by establishing common minimum rules relating to legal aid (Directive 2002/8/CE of 27.01.2003 – JO L 26/41 of 31.01.2003).

The consequences of a divorce are often more far-reaching than a decision in other areas of civil law. For example, the maintenance settlement not only represents a large sum of money, but has repercussions in the social security and pension fields. All advice given must therefore be of a high standard.

Where lawyers themselves are concerned, consideration might be given to the possibility of providing special training in this field to ensure that the parties in divorce proceedings are given the necessary guidance.

But it is important to provide such guidance even before contentious proceedings are started. Legal and psychological counselling is essential and will ensure that any contentious proceedings are better prepared for, because the non-contentious issues and the procedures will already have been sorted out.

A highly successful pilot project was carried in which family counselling centres consisting of a lawyer and a psychologist were set up in courts.

D- TRAINING OF JUDGES

Even if the preliminary questions have been settled, decisions still have to be taken on some complex issues, which requires the judge to have specialist know-how in the handling of emotionally charged situations. Knowledge in the area of psychology and communication, but also training in the sensitive area of child protection are essential tools for a family affairs judge.

Admittedly, these training needs entail additional expenditure for states, but they are justified in economic terms in view of the increase in the number of divorces.

Furthermore, the staffing levels and facilities of family courts need to be improved if divorce cases are to be settled within a reasonable time.

Family protection as defined in Article 8 of the “European Convention on Human Rights” implies the right to call on state assistance for reorganisation of the family.

III - CONCLUSIONS

The Council of Europe’s recommendations regarding the need to deal with the consequences of a divorce separately from the issue of fault should be reiterated, and the spouses should be guided towards a future solution.

Deterioration of the economic situation following a divorce calls for certain changes, such as adjustment to a new, lower standard of living, and this constitutes a major stress factor for both men and women, especially those living in rural areas.

The situation is made even worse by the fact that the economic consequences of divorce proceedings are not foreseeable.

The advantage of mediation is that the effects of a divorce can be determined, and an arrangement can even be reached, without recourse to the courts through the intervention of specialists (psychologists and lawyers) who will be able to create a “win-win” atmosphere in the sense of “optimum co-ordination of competing interests”.

Emphasis should be laid on the need for provisional measures to create a structure for reorganisation of the family.

In view of the economic and personal consequences which a divorce can have, it would be preferable to envisage compulsory representation by a lawyer - with wider access to legal aid - and create an extensive information network.

Because of the great complexity and sensitivity of this area, special training should be provided for family court judges, especially in the area of psychology and communication.



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