1. How can we get separated or divorced in Denmark?
If the parties agree
If either spouse wishes to separate, the State Administration may grant a legal separation if both parties agree on the separation and its terms.
Provided that both parties agree to a divorce and agree on the terms of the divorce, they can elect to be divorced with immediate effect.
Separation is an evaluation period during which the spouses live apart but are still legally married. During this period, the spouses decide whether they wish to resume the marriage or whether they wish to divorce.
A divorce is not automatically granted after a separation. If the parties wish to divorce, they must submit a request to the State Administration. Until then, or until the parties resume their marriage, the separation will continue.
If the parties agree, they will be able to divorce at any given time after the separation.
If the parties disagree
Both parties have a right to a legal separation.
A person who does not wish to remain in his or her marriage always has the right to a separation, regardless of the wishes of the other spouse.
No reason or proof is required in order to obtain a separation.
After a separation period of six months, the spouses have the right to divorce, even if the other spouse disagrees.
If one spouse wishes to divorce without prior separation, and the other spouse disagrees, the parties must start by requesting a separation.
Even if one spouse disagrees, the other may request a divorce without prior separation, if one of the following conditions is met:
- Your spouse has committed adultery
- The spouses have been living apart for at least two years because of disagreements
- Your spouse has committed acts of violence against you or your children
- Your spouse is married to someone else (bigamy)
- Your spouse has abducted your mutual child
2. Which terms are to be clarified?
The terms that need to be clarified in order to obtain a separation or a divorce are:
- The right to claim a jointly rented home
Matters such as child support and division of property is not to be negotiated when applying for separation or divorce – these matters must be dealt with separately.
3. What are the proceedings when asking for separation or divorce?
Spouses wishing to separate, or divorce must apply to the State Administration and pay a fee for the processing of the application. If the spouses disagree on the terms of the separation or divorce, they must attend a meeting to negotiate terms. An additional fee applies to such a meeting.
The State Administration may refer a separation or divorce case to the courts if they believe that the separation or divorce and its terms are questionable.
4. What about foreign nationals and residence outside Denmark?
As a main rule, matrimonial matters can only be settled in Denmark, provided that at least one of the spouses can be considered a permanent resident of Denmark, or both spouses are Danish nationals.
5. What other aspects are to be settled in case ofseparation or divorcement?
In case of separation or divorce there are other aspects that need to be settled such as:
– The name of both parties after the divorce: If the spousesas a consequence of their marriage has decided to use the same name (e.g. one spouse wishes to take the other spouse’s surname) this might to be changed as a result of separation or divorce.
– The obligation for one of the spouses to pay alimony: When separating or divorcing, neither spouse is automatically entitled to alimony, but under certain circumstances one of the spouses may be required to pay alimony to the other.
– The exercise of the parental authority with regards to custody and residence.
6. Who has custody?
As a main rule under Danish law is that parents have joint custody, even when they separate or divorce or no longer live together.
Parents have joint custody in the following situations:
- They were married to each other when the child was born
- They married after the child was born
- They had separated by the time the child was born, but later resumed marital relations
- They signed a joint Care and Responsibility Declaration when the child was born
- They registered an agreement on joint custody with the State Administration or the courts
In the case of a child born after 1 October 2007, parents ALSO have joint custody in the following situations:
- They were married to each other at some point within the 10 months preceding the child’s birth
- They separated from or divorced each other when the child was born, but the father has acknowledged paternity or a court has declared that he is the child’s father
- They lived together at some point within the 10 months preceding the child’s birth
In other cases, the mother has sole custody.
Apart from the above, sole custody only arises when the parents make an agreement to that effect and have the agreement duly registered with the State Administration or when a court decides that sole custody is appropriate.
7. Under which circumstances can custody arrangements be changed?
If the parents agree to a change in custody arrangements, all that is required is that the parents submit their agreement to the State Administration. If one parent does not agree to changing custody arrangements, the parent applying for the change must submit the application for the required change to the State Administration.
If the counselling and guidance from the State Administration do not help the parents to reach an agreement as to what is best for the child, either parent may request that the case is presented to the court. The court will then make a decision on custody.
8. Why is it important where the children got their residential address?
If the parents have joint custody of the child, it is the parent with whom the child resides that decides where the child should live. If the child is to move abroad, the parents must agree on such a move.
If one parent has sole custody, this parent decides where the child should live. This applies to residence both in Denmark and abroad.
If the parents disagree on where the child should live, they may apply to the State Administration for assistance if they have joint custody. If the parents are unable to reach an agreement, they may request that the State Administration refer the case to the courts. The courts will then decide where the child should live.
Publisher: By Rasmus Agathon, Attorney