The Uncontested Divorce in Albania and the Controlling Role of the Judge

The divorce institute in the Albanian family law is designed to avoid severity and to promote the preservation of family relations and the amicably settlement of the family disputes. Respecting the will of the partners to divorce by a mutual agreement, the Albanian legislation provides their right to divorce by a facilitating judicial procedure, while many European countries have recently adopted a more facilitating procedure, the administrative divorce. The paper aims at comparing the Albanian judicial procedure with the administrative procedure by identifying in any of them the guarantor elements of the best interest of the child and the rights of the partners.

Keywords: uncontested divorce; agreement; judicial procedure; administrative procedure.

Background

The Albanian family law system is designed to promote the amicable settlement of disputes and preserve family relations. Traditionally, divorce was viewed as a disruptive event requiring third-party decision-making. However, Albanian legislation (Law No. 9695/2007) now provides for divorce by mutual consent through a judicial procedure. Statistics from the Albanian Institute of Statistics (INSTAT) show a significant rise in divorce rates, increasing from 1.3 per 1,000 inhabitants in 2013 to 1.6 in 2017. This surge has overloaded the judicial administration, leading to increased costs and longer wait times for spouses. While Albania maintains a judicial requirement for all divorces, many European neighbors have transitioned toward "administrative divorces" to simplify the process. This article explores the current judicial framework in Albania and compares it with more flexible European models.

Methods

This paper is a review article that utilizes a comparative legal analysis. The author examines the Albanian Family Code (specifically Articles 125–144) to define the current judicial requirements for uncontested divorce. To provide a broader context, the study references the principles of the Commission on European Family Law (CEFL) established in 2001, which aims to harmonize family law across the EU. The author performs a comparative review of "fast-track" or administrative divorce legislations in several European countries, including Greece, France, Italy, Romania, and Spain. By analyzing these different legal frameworks, the author evaluates the effectiveness of judicial oversight versus administrative processing in protecting the "best interest of the child" and the equality of spouses.

Results

In Albania, the "uncontested divorce" remains a strictly judicial process. The judge does not investigate the causes of the marriage breakdown but acts as a "guarantor" to ensure two things: the serious and free consent of both partners, and the validity of the settlement agreement regarding child care, alimony, and education. If the agreement is deemed insufficient, the judge can suspend the trial for three months.

In contrast, the review finds that many European nations have moved toward administrative models. For example, in France and Greece, mutual consent divorces are often handled by notaries rather than judges, unless a minor child requests a hearing. Italy and Romania allow for "fast-track" divorces before municipality officers or civil registers for couples without minor children. These models focus on the autonomy of the spouses to determine the consequences of their separation without mandatory judicial intervention, provided there is no contestation.

Conclusions

The author concludes that while the Albanian Family Code provides a facilitating procedure, it remains a judicial burden that requires significant time and expense. The "role of the judge" in Albanian mutual consent cases has shifted from a decision-maker to a controller of the agreement’s validity. To further modernize the system and reduce court backlogs, the author suggests that Albania should adopt an administrative procedure for mutual consent divorces. Specifically, the paper recommends appointing public notaries as the competent authority for these cases. Since notaries are legal professionals, they can provide the necessary legal guidance and ensure that agreements are valid and protect the interests of all parties, thereby offering a faster, more cost-effective alternative to the current judicial system.