Pursuant to Article 95 of the Family Code (DZ), a marriage is terminated upon the death of one of the spouses, on the declaration of the death of one of the spouses, annulment or with divorce. In this article, we will examine divorce in detail.
A divorce is possible in all European Union member states. The last state to enact divorce was Malta in 2011. In Slovenia in 2019, there have been 2,476 marriages terminated by divorce, which is 129 (5.5%) more than in 2018. On average, a marriage lasted 14.3 years before it terminated with divorce. 17 couples divorced after 50 of more years of marriage. 40 marriages terminated in divorce in the first year of marriage. In 2019, 1,261 (50.9 %) marriages in which there were no dependent minor children terminated with divorce. In 1,215 (49.1 %) marriages terminated with divorce, there were a total of 1,980 dependent minor children at the time of divorce. At the time of divorce, custody of 67.9 % of children was assigned to mothers, 5.3 % to fathers, and 24.3 % to both parents (source: website of the Statistical Office of the Republic of Slovenia, https://www.stat.si/StatWeb/News/Index/8841).
The Family Code regulates consensual divorce before a court (Article 96 of the Family Code), consensual divorce before a notary (Article 97 of the Family Code) and divorce on the basis of a lawsuit filed by one of the spouses (Article 98 of the Family Code). Before filing a lawsuit for divorce or an application for consensual divorce, the spouses must attend prior counselling at the Social Work Centre (SWC). Participation in prior counselling is not required if they do not have joint children over whom they exercise parental responsibility, one of the spouses is incapable of judgement, one of the spouses is missing or their residence is unknown or if one or both spouses live abroad. The aim of prior counselling is to help the spouses establish whether their relations are broken down to such an extent that the marriage has become, for at least one of the spouses, unsustainable, or whether there is a possibility of saving the marriage. Spouses attend prior counselling at the SWC without their representatives. All of the above is set out in Article 200 of the Family Code. The aim of this arrangement is to lighten the burden on the courts.
Consensual divorce before a court
The consensual divorce reflects the principles of equality and autonomy of family law, as its implementation requires the wishes and consensual action of both spouses. If there is a disagreement during the consensual divorce proceedings, this leads to a stay of the divorce proceedings on the basis of an agreement.
Before filing an application for consensual divorce, both spouses must attend prior counselling, as a record of prior counselling must be submitted to the court. When filing for divorce, the court fee must be paid, specifically no later than the deadline set by the court in the court fee order. If court fee has not been paid and the conditions for its exemption, postponement or instalment payment have not been met, the application for consensual divorce is deemed to have been withdrawn.
A court grants a divorce on the basis of the agreement of the spouses provided that they have reached an agreement on the care, upbringing and maintenance of joint children and their contacts with the parents according to the provisions of the Family Code, and if they have submitted, in the form of an enforceable notarial act, an agreement on the division of co-owned property and on which of them remains or becomes a tenant, and on the maintenance of the spouse that does not have the means of subsistence and is unemployed without fault. Before a court grants a divorce, it must establish whether the care, upbringing and maintenance of joint children and their contacts with the parents have been provided for by an agreement of the spouses in the children’s best interests. If the court finds that the agreement of the spouses is not in the children’s best interests, it rejects the application for consensual divorce. In this case, the spouses have to change or supplement the agreement if they wish to continue their consensual divorce.
Consensual divorce before a notary
Consensual divorce before a notary is a novelty introduced by the Family Code. For spouses who do not have joint children over whom they would have joint parental responsibility, the enactment of consensual divorce before a notary has provided a quick means of divorce, as they do not have to attend prior counselling.
Spouses without joint children over whom they exercise parental responsibility that wish to divorce, and have concluded an agreement on the division of co-owned property and on which of them remains or becomes a tenant of the home in which they live, and on the maintenance of the spouse who does not have the means of subsistence and is unemployed without fault, can request a notary to draw up a notarial act on the agreement of the spouses to divorce.
The divorce is final as of the day of signing of the notarial act. The notarial act is the legal basis for entering the divorce in the civil register. Within eight days of the signing of the notarial act, the notary sends the notarial act to the administrative unit, which enters the divorce in the civil register.
However, if the notary finds that certain preconditions for divorce are not met, he will refuse to draw up a notarial act, as he has no power to make decisions in matrimonial disputes, and refer the spouses to a court of law. The notary will also refuse to draw up a notarial act if he finds that one of the spouses does not meet the condition for divorce (e.g. that it is not their free will) and also if, at the time of filing the application for consensual divorce, one of the spouses will not be present, as the application must be submitted by both spouses together and in person, without using representatives. The notary will also refuse to draw up a notarial act if one of the spouses withdraws from the agreement or does not want to sign it in the end. The notary also stop any further actions if he learn that one of the spouses has filed an action for divorce or if one of the spouses has died, as this results in the termination of marriage due to death.
Divorce on the basis of a lawsuit
If the marriage is unsustainable for whatever reason, either of the spouses may sue for divorce. A lawsuit for divorce must be filed with the competent court. The general local court where the defendant’s domicile is located has the general jurisdiction. When filing a lawsuit for divorce, the court fee must be paid, specifically no later than the deadline set by the court in the court fee order. If court fee has not been paid and the conditions for its exemption, postponement or instalment payment have not been met, the lawsuit for divorce is deemed to have been withdrawn.
For a divorce, it is sufficient that the marriage between the spouses has become unsustainable due to emotional estrangement. It does not matter which spouse is responsible for the occurrence of unsustainability. The court will thus grant a divorce if the marriage becomes unsustainable for one of the spouses. The will and wishes of the other spouse are not relevant. The above is in accordance with the principle of spousal autonomy, the principle of equality of spouses, and the principle of termination of marriage by divorce. Unsustainability is a legal standard that is examined by the court on a case-by-case basis. This is a subjective perception, i.e. a specific spouse claiming the existence of unsustainability in a specific case, and it does not matter whether this circumstance is a reason for unsustainability for the other spouse or anyone else.
When the court grants a divorces, it also decides on the care, upbringing and maintenance of joint children and their contacts with the parents in accordance with the Family Code. Before making a decisions, the court must establish in what way the best interests of the child will be best protected. It is left to the spouses to agree on how to arrange the care and upbringing of their joint children after the divorce and how to arrange their maintenance and contacts with the parent with whom the child will not live. The court follows the agreement if it finds that the agreement ensures respect for the child’s interests and rights, especially if the child has given his/her opinion and the court has determined that the child is old and mature enough to have his/her opinion taken into account. If the court finds that the agreement is not in accordance with the child’s best interests and rights, it rejects the agreement. The parents can modify or supplement the agreement accordingly. If they do not do so or cannot agree on the care and upbringing of their joint children, this is decided by the court. To reach an agreement, the parents are assisted by the SWC and/or a mediator.
In deciding which parent will be entrusted with the care and upbringing of the child, the court must determine which parent has better conditions for the child’s further development. In this regards, it can request assistance from the Social Work Centre and court experts. Modern case law treats both parents equally. The decision on awarding custody of a child is influenced by all relevant circumstances of the specific case. The court must determine the child’s best interests on a case-by-case basis. If the court finds that neither parent is suitable, the responsibility for the care and upbringing of the child may be assigned to a third party (close relative, a person with whom the child has formed a special attachment) or to an institution. In this case, the child is placed in foster care. The court uses these two cases only when there is no possibility for the child to live with one of the parents or if such an arrangement would be contrary to the child’s property rights and other rights and benefits.
The court also decides on contacts between the child and the parent with whom he/she will not live. The guiding principle in arranging contacts between a child and a parent are the best interests of the child. To ensure the best interests of the child, the circumstances on the part of both parents must also be taken into account. The parents can reach an agreement on contacts themselves, with the help of the SWC and/or a mediator. If the parents fail to reach an agreement on contacts, the decision is left to the court. The court may restrict or withdraw the right of contacts for one or both parents if it finds that the child would be endangered because of such contacts, and only a restriction or withdrawal can sufficiently protect the child’s best interests. To protect the best interests of the child, the court may decide that contacts are not made through face-to-face meetings and socialising. A parent has the right to personal contact even when the child is entrusted to a third party or institution.
With regard to child maintenance, the parents also have the opportunity to reach an agreement on the amount and method of payment of maintenance for their joint children. To reach an agreement on child maintenance, the parents can be assisted by the SWC and/or a mediator. A court must, ex officio, review the parents’ agreement on maintenance and make sure that it is in the child’s best interest. If the agreement is not appropriate, the court notifies the parents and gives them an opportunity to appropriately modify the agreement. If the parents cannot agree on child maintenance or the agreement is not in the best interests of the child, the matter is decided by the court. Both parents have a maintenance obligation during their marriage and also after divorce, thus ensuring the principle of equality. Maintenance is determined for each child separately. In determining maintenance, the court takes into account the child’s needs, parents’ financial resources, parents’ earning capacity, etc..