LEGAL REGULATION OF DIVORCE: HISTORICAL DEVELOPMENT AND MODERN PRINCIPLES

Abstract

The article is devoted to the study of the genesis of legal regulation of the order, conditions and consequences of divorce in its historical aspect, as well as given the current principles of family relations in EU law and foreign law, highlighting the latest trends in divorce relations and outlining the laws of their further consolidation in the family law of Ukraine, formulation of conclusions and proposals aimed at harmonization of national legislation with EU law. The divorce procedure, its conditions and legal consequences are regulated by the legislation of different states in different ways. The regulation of divorce relations is also significantly influenced by national characteristics, traditions, religion and culture. The spread of family relations outside one state necessitates the application of foreign law to regulate such relations. Appropriate conflicts may result from the application of the law of different states regarding the grounds for divorce, the procedure for divorce, as well as the unequal determination of the moment of its dissolution. The article argues that one of the basic principles of Roman private law was the observance of absolute freedom of divorce. However, during the imperial period, and especially with the establishment of Christianity, restrictions were imposed on divorce. The approach to significant restrictions and even prohibitions on divorce has long been observed in the law of European states. Under the influence of the Catholic Church and Christian morality, the recipient law did not allow divorce at all or established restrictions and valid grounds for divorce. Divorce was allowed only as an exception, in the presence of significant circumstances, subject to complicated procedures. Since the second half of the twentieth century, divorce laws have been reformed in many countries, tending to abandon the idea that divorce is a sanction for marital misconduct and moving to the concept that divorce is a statement of a failed marriage. As a result of the reforms, divorces have become more liberalized. The article concludes that the general conflict principle of divorce is the law of citizenship of a spouse or husband (most countries of continental Europe) or the law of the place of residence of the spouses (England, USA and a number of other countries). However, Regulation 1259/2010 provides, in essence, innovative provisions for the choice of the competent legal order in the event of divorce, which enshrines the possibility for spouses to independently choose the applicable law.