Although in recent years, most European countries have moved towards greater liberalization of divorce (European Commission for the Efficiency of Justice 2015; González and Viitanen 2009), we do not see similar tendencies in Slovakia. Slovakia is historically a country with a conservative outlook on family, which is greatly influenced by the Catholic Church. Consequently, family law has been resistant to liberalization. Divorce based on the agreement of both partners (i.e. uncontested divorce), which is now common in most Western European countries, is still not possible in Slovakia (Slovak Republic 2016). An uncontested divorce means that a couple, who meets certain preconditions defined by the state, presents common agreement about the divorce and post-divorce arrangements to the court, and the court grants divorce to such couples without questioning their decision (Attorneys.com 2016). In Slovakia, all married couples who wish to be divorced must prove in front of a judge that their marriage is dysfunctional (Slovak Republic 2016). In this essay, I argue why couples’ agreement should be included as a ground for divorce in Slovak legislation. I provide evidence that uncontested divorce would be beneficial for divorcing couples, their children, and the state. The benefits rest foremost in its swiftness and reduction of conflict, and there is no solid evidence that it would lead to increased divorce rates.
The short duration of a divorce period is beneficial not only for couples who want to divorce and their children, but also the courts. Undoubtedly, uncontested divorce is one of the quickest solutions for divorce, because the court does not question the decision of the couple (Attorneys.com 2016). Currently, the mean duration of divorce proceedings in Slovakia is relatively high. In 2011, it was six months, although in some places, such as the region of the capital, it was eight months (TASR 2012). Although comparing the length of the divorce proceedings across countries is problematic, existing statistics indicate that this length is above average when considering other European countries (European Commission for the Efficiency of Justice 2015). Divorce is one of the most stressful life events (Booth and Amato 1991) and a shorter period of divorce would mean a shorter period of intensified stress for couples and their children. The current long duration of divorce proceedings points also to the overload of the courts. Uncontested divorce would reduce the amount of time spent by the courts on couples who can arrive at an agreement outside of the court, allowing them to pay more attention to the more problematic cases of divorce.
Uncontested divorce has also great potential to reduce conflict between the divorcing partners, which is, in turn, beneficial also for their children. Contested divorce, which requires proving that the marriage is dysfunctional, stimulates conflict. Moreover, conflict between partners is often exacerbated by lawyers in an effort to win the best position for their clients (Bahr 1981). The agreement on post-divorce arrangements, including child-care and payment of alimony, becomes more problematic, and this negatively impacts post-divorce interaction between parents and parents and their children. By contrast, an uncontested divorce is focused on finding the mutual consent of both partners and is more likely to consider the best interest of a child, instead of the interests of partners.
The argument against uncontested divorce is based on the potential increase in the divorce rate and encouragement of couples to divorce by making it easier. In 2012 there was an effort by one of the opposition parties to introduce divorce by agreement in Slovakia (Sloboda a Solidarita 2012). The new law proposed that couples without minor children could be divorced instantly by a notary based on the consent of both partners. Although this proposal was not a proposal of uncontested divorce as we know it from other European countries, it provoked a general discussion about the liberalization of divorce. Representatives of the conservative parties argued against the idea. The main arguments were based on the value of family and concern that easier divorce would encourage couples to split up (TASR and SITA 2012). However, in the current system, the vast majority of the couples who wish to be divorced are in the end granted the divorce. Only in 27 cases out of the 10,320 in 2015 did the court refuse the divorce (ŠÚSR 2016). Moreover, there is no evidence that the inclusion of agreement in the grounds for divorce would increase divorce rates. Although there is no scientific study to confirm or refute such an association in Slovakia, the introduction of uncontested divorce in the Czech Republic in 1998 did not increase the divorce rates in the following years (Eurostat 2016). Further, uncontested divorce does not mean that it is available for any couple who wishes to divorce because every country includes in the law a set of conditions which divorcing couples need to meet. For example, in the Czech Republic, the precondition for an uncontested divorce is separation for six months, which prevents hasty divorce decisions (Stránská 2014). It is, therefore, clear that even uncontested divorce is not available for couples who decide to divorce in the spur of the moment, but only for couples whose relationships are seriously disrupted. Divorce by agreement, therefore, does not mean more divorces of happy marriages, but a less conflictual variant of divorce for already disrupted families.
In this essay, I have argued why the introduction of uncontested divorce in the Slovak law would be beneficial for divorcing couples and their children, and for the state itself. Couples and their children could benefit from the potential reduction of conflict during the process of divorce as well as its short duration. The state, represented by the courts, can also benefit from the reduction of the contested divorces, which are more time-taking than uncontested ones. Finally, if the new law is applied sensibly regarding the preconditions that couples need to meet before obtaining an uncontested divorce, there is no reason to be concerned about the rise in divorce rates. Therefore, an uncontested divorce can be a reasonable improvement of a divorce law even for a country with a traditional outlook on family.
Zuzana Žilinčíková is a PhD student of Sociology
Article was proofread and edited by Nadya Jaworsky
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