Through divorce, one or both spouses seek to dissolve the valid marital union that exists between them. Unlike in annulment, in divorce, the validity of the marriage is not contested.
Both spouses have the right to ask the Civil Courts for a divorce. The couple need not be separated by means of a judgment or by means of a contract in order for either (or both) to demand divorce (Article 66A(1), Civil Code).
Conditions required for divorce
Article 66B of the Civil Code holds that for the Court to grant divorce:
- the spouses must have been living apart for at least four years out of the immediately preceding five years, or in the case of legal separation four years have elapsed;
- there is no reasonable prospect of reconciliation; and
- the spouses are still maintaining each other and the children.
Therefore the Court will not grant the divorce if one of the parties refuses to pay maintenance (whenever agreed upon or forced by Court) to the other spouse or to the children. Due to article 66B(c), the party who receives maintenance may restrain the other party from obtaining a divorce by arguing that the other has not provided him or her maintenance or that the four year period has not expired.
However a spouse may renounce the right to be maintained by the other spouse, thus divorce could be granted.
If the Court is satisfied that the required criteria is met, it should pronounce the divorce (Article 66C) and it is not necessary for the spouse who made a demand for divorce to impute any fault leading to the divorce (Article 66D).
When the party receiving maintenance remarries or enters into a personal relationship (therefore this person should also be supported/maintained by a third party), the same party shall forfeit the right to receive maintenance from the party so divorced. This also takes place where the parties had agreed in a contract of separation that in case of remarriage or a new relationship such party will continue receiving maintenance.
But if the order for maintenance is set to be paid by means of a lump sum in favour, the lump sum would still be paid despite of the fact that such party remarries (Article 66M, Civil Code).
The effects of divorce
Following divorce parties have a right to remarry. However, the decree of divorce does not have any effects upon the rights and obligations as parents or upon any agreement they have reached between the parties in respect of their children.
Maintenance following divorce
When a party receiving maintenance either remarries or enters into a personal relationship which brings about an obligation of maintenance by a third party, that party shall forfeit the right to receive maintenance payable he or she got from his previous marriage. This also applies where the parties agreed in a contract of separation that the agreement regarding maintenance shall continue to have effect and cannot in the event of remarriage or another relationship.
Separation proceedings to be converted into divorce
During the separation proceedings (unless the Court has adjourned for a judgment) an application for divorce may be inserted in proceedings for separation, and if the Court is satisfied that the prerequisites for divorce are satisfied, it could accede to that application.
A demand for divorce without separation
Where an application for divorce is presented to a Court (by one or both spouses) and the spouses are not yet separated the Court shall first summon the parties to appear before a mediator for the purpose of attempting reconciliation. If such a reconciliation is not achieved and these spouses have not yet agreed on the terms of the divorce the mediator shall help them arrive to a divorce on the basis of an agreement after deciding on the following issues:
- the care and the custody of the children;
- the access of the two parties to the children;
- the maintenance of the spouses or of one of them and of each child;
- residence in the matrimonial home;
- the division of the community of acquests or the community of residue under separate administration.
Order for guarantee
A spouse must pay maintenance to the other spouse in order for him or her to be able to divorce. Therefore the Court may ask that such a person gives a guarantee that he or she will be able to pay maintenance for up to five years in order for the Court to grant the divorce. However, the Court is only obliged to order that the guarantee is paid where from the facts of the case it appears to the Court that such a bank guarantee is necessary because the party who should have supplied maintenance has already defaulted or circumstances exist that militate in favour of granting the bank guarantee.
Duties of lawyers
The lawyer who is assisting an applicant or respondent in an application for divorce shall:
- discuss the possibility of reconciliation with the applicant,
- given the applicant the names and addresses of persons qualified to offer assistance in the process of reconciliation between spouses, and
- ensure that the applicant is aware of the option of separation as an alternative to divorce (not applicable in the case of a respondent)
where the spouses are not yet separated by a contract or a Court judgment. However, this requirement can be dispensed with if the couple are already separated (consensually or by Court).