Author: Oikonomakis Christos
Theoretical and Case study approaches of the execution issue of a Divorce by Mutual Consent decision in Greece (especially in terms of custody, maintenance fee and communication) – Way of execution of the aforementioned decision – Penal perspectives of the subject matter – About the lodging of an appeal against Divorce by Mutual Consent
A. ABOUT THE TERMINATION OF MARRIAGE AND THE IRREVOCABILITY OF THE RELEVANT DECISION
According to provision 1438 CC sentence B’, marriage is to be terminated by an irrevocable court decision. According to the CPC specifications, a court decision is deemed irrevocable when not susceptible to objection either by casual or by extraordinary legal means.
Regardless of the divorce procedure (divorce by mutual consent or in an adversarial procedure) and the type of marriage (secular or civil), the decision reached regarding the termination of the marriage is merely definite [1st instance], therefore it is susceptible to objection via legal means.
As long as there is this option of objecting to the decision through legal means, this decision is not considered to be a res judicata and does not bear the expected legal consequence to the parties nor for the third parties, given that the divorce decision has an erga omnes effect.
1) In order for the 1st instance definite court decision to be deemed irrevocable terminating the marriage at hand, the parties proceed (either themselves or through representative lawyers) in a resignation statement with regards to the option of exercising legal means before the secretariat of the court house that has published the decision (the most common way of arranging divorces by mutual consent). Confession of judgment [i.e. giving up on legal means in terms of appeal] is possible only after the publication of a definite decision (art. 599 CPC)
2) In case the parties do not move forward with a resignation statement with regards to the option of exercising legal means, the decision is deemed irrevocable either due to the exercise and rejection of casual and extraordinary legal means, or due to the fact that the dates regarding the exercise of appeal have gone passed. The deadlines regarding the exercise of casual or extraordinary legal means are differentiated on grounds of whether the appeal was served or not. In particular:
a) in case it has been served: as of the date of the service it is initiated the deadline regarding the exercise of casual legal means, namely of the appeal and of the revocation due to absence in case the decision has been published under such procedure. The deadline regarding revocation due to absence is fifteen days (art. 503 CPC), while the deadline of the appeal is thirty days (art. 518 CPC). In light of the fact that the deadline for a revocation due to absence and that of an appeal is exactly the same, the decision of the court of first instance is to be considered final after 30 days in total have gone passed. The aforementioned is to be considered valid in case of a known residence of the litigant in Greece, while in case of unknown residence or of residence abroad the deadlines tend to formulate accordingly.
Therefore, and after the decision has been deemed final, the deadline is launched lodging extraordinary legal means, namely rehearing and cassation. The former one’s deadline, especially in terms of marital disputes (article 598 CPC), is 6 months from the day it has been served, while the cassation’s deadline is 30 days from the day of service (given of course that the residence in Greece has been established as known – CC 564 par. 1). The deadlines of rehearing and cassation overlap.
Therefore, the first instance court decision is considered irrevocable in case the total deadline of seven months’ time has gone passed (30 days’ time in terms of an appeal and of a revocation due to absence, 6 months in terms of rehearing, during which the deadline of the 30 days shall be gone passed as well).
b) the non-served decision: in case if a first instance court decision that has not been served, the so-called “misused deadline” of an appeal begins, which shall be initiated as of the day of the publication of the decision. The misused deadline of the appeal is 2 years long (CC 518 par. 2). After the lapse of 2 years’ time in terms of appeal the two-year long deadline begins in terms of the cassation (CC 564 pae. 3). Therefore, in case of a non-served decision, this decision is deemed irrevocable after the lapes of four years’ time.
B. ABOUT THE RIGHT TO LODGE AN APPEAL AGAINST THE MUTUAL CONSENT DIVORCE DECISION
Due to the very essence of the mutual consent divorce as a free and common decision reached by the spouses, which however produces results only after the relevant court decision has been published, the principle of the litigant spouses emerging, which allows them to have their statement revoked, i.e. the decision according to which the court’s definite decision on the termination of the marriage has been reached (by the first instance court house), does not necessarily mean that it has to be limited (revocation option) if only, and as per the fundamental part of the divorce (statement issued by the litigants), by the integral private law principle not to have third party interests violated that could have been founded on the revoked decision, as per the procedural part (publication of a court decision), not to have legal deadlines violated that could lead to the finalization or the irrevocability of the decision (the issue of the implementation of article 758 CPC is irrelevant to the above, see Gazis NoB 31, p. 1297).
Moreover, it is obvious on one hand that according to provisions set by article 516 CPC, the main requirement in order to have the right to lodge an appeal as litigant of the case is the existence of legal/ vested interest in the sense that the decision under objection the pleas or in general any claims that have been supporting those pleas have been rejected. By way of exception, this right is reserved for the litigant who has won the first instance court, given of course that the vested/ legal interest does exist here as well.
The criterion so as to have, in principle, the existence of vested/ legal interest is whether the decision in general has possibly caused damage even to the litigant that has won in the first place.
In terms of divorce trials, where public interest is a priority by preserving marriage as a social institution, the meaning of damage shall be sought for in broader terms by way of whether that interest is mainly in place by avoiding the termination of marriage (Supreme Court 537/ 1966 NoB 15, p. 569), i.e. when such an interest is to be sought for when the appeal is lodged by the litigant who has won in the first instance court. So, literally here, in this case the legal means works only in theory as an appeal, but practically it sets in process the second instance court in order for the legal means to operate mainly as an application of revocation of the statement of as a resignation from the right of the lawsuit filed and already heard in terms of the first instance court.
In particular, with regards to the divorce of mutual consent that has been processed according to the procedure of non-contentious jurisdiction, the option of filing a legal means such as the appeal from one of the spouses is based on the provision of article 761 CPC according to which (when in terms of the non-contentious jurisdiction cases) the right of appeal is reserved to the litigant that has won as well. Such provision goes hand in hand with all of the aforementioned more general in essence provisions that tend to refer to the spouses’ vested/ legal interest which lies with the preservation of marriage, thus it is applied in all those instances where relevant trials of divorce of mutual consent take place.Of similar interest in this case is the issue of the deadline concerning the exercise of legal means, which due to the specifics of the trial that occurs without any dispute, it should not identify itself with the pre-considered as such requirement of the service of the definite decision, due to the fact that it is usually the litigants that do not find any reason in having it served.
In the case of the divorce of mutual consent, given that there is no special provision regarding such deadline in terms of the procedure of non-contentious jurisdiction, it should be set in process the according to article 741 CPC general provision of article 518 par. 2 CPC, which provides that in case of not having a decision served, the deadline of the appeal is that of two (2) years’ time which shall enter into force as of the day of publication of the decision concluding the case. It has to be noted that such interpretation does not contravene the very essence of the aforementioned law that has established as such the mutual consent divorce, given that in any case the option provided to both litigant spouses to have their relations reunited willingly within the deadline is primarily founded on the general principle introduced by law, i.e. of allowing the involved parties to have their matters arranged in terms of their personal marriage relations by reserving only the issue of not breaching third parties’ interests. Such interests, if created (e.g. a possible bigamy etc.) within the inter-period of procedural deadlines that tend to run without any prior writ of summons and are definitely of extensive periods of time, should constitute a reason for the court to deny the dismissal of the first instance decision that has resolved consensually the marriage, and not as an a priori obstacle in order not to have the aforementioned provisions implemented. Better note that if the legislator had not wished for their implementation in terms of the mutual consent divorce, he/ she would have ruled that inadmissible by having put into place a shorter way of imposing finalization and irrevocability in all such cases (Court of Appeal of Athens 8990/ 1984 Gr Jus 26, p. 69).
C. THE EXECUTION OF THE MUTUAL CONSENT DIVORCE DECISION ESPECIALLY ON ISSUES OF CUSTODY, MAINTENANCE FEE AND COMMUNICATION
The decision of the mutual consent divorce due to its special nature produces legal results as soon as it becomes irrevocable both in terms of the provisions regarding the termination of marriage, and in terms of the provisions that confirm the agreement between the spouses to arrange custody, communication and maintenance fee of the minor child, given that the initial point in terms of this arrangement of all matters, and as soon as this arrangement takes place, is the moment when the decision as such becomes irrevocable (see art. 1438 CC and 909 CPC case 3, see also V. Vathrakokilis, INTCASCC, Athens 2004, art. 1441, par. 36, p. 517).
In light of the above, this said decision due to its special nature bears no temporary execution characteristics, and as a result to be able to be executed only after its finalization.
If the counterparties have given up their right to proceed with legal means against the said decision (or, the four-year time period has lapsed since it had been published), then it has become irrevocable. In such case, a writ of attachment of the decision at hand has to be issued and a related to that writ of summons to be served to the other party (if execution is actually sought for, the litigant who has been assigned the maintenance fee/ beneficiary is able to proceed with a conservative execution of any movable or immovable assets of the counterparty, the formation of such execution in a compulsory one, as well as the option to proceed with pressing penal charges against him/ her for the delict of breaching the obligation providing for maintenance fee according to art. 358 P.C. – by keeping in mind that the time of the actual performance of such delict cannot be preceding the irrevocability of the relevant civil decision and the defendant’s awareness of the obligation he/ she bears).
In case no resignation whatsoever of the legal means available has taken place, then the relevant decision is to be served accordingly and the beneficiary should await of its finalization, as already mentioned above, either after such a decision has been reached following an appeal would have been lodged in advance, or – in case of no appeal lodged – after the lapse of the relevant deadlines.