Types of Marital Separation in Greece
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According to article 1438 of the Greek Civil Code: “A marriage could be terminated by a divorce, which is to be decided by an irreversible Court ruling or due to an agreement to that end between the spouses, as per the provisions of article 1441”.
Therefore, there are two types of marital separation: the consensual divorce and the divorce by means of an adversarial procedure. The latter of the aforementioned types, the divorce by means of an adversarial procedure, deals with these cases where the spouses cannot agree between themselves with regards to the matters of the divorce, as well as with main issues such as custody of the child and communication with it.
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a. Consensual Divorce
A new procedure has been introduced recently regarding consensual divorce according to which the competence has shifted from Courts to Notaries. Such a termination, i.e. by means of a Notarial deed, is both valid – as already mentioned – but also very direct given that the judicial procedure as such is circumvented. The Notarial deed is not the outcome of the process and as soon it is prepared it has to be registered with the City Register where in the first place the marriage as such had been registered. It is only after the Notarial Deed has been registered that the until then marriage shall be considered terminated.
According to Law 4509/2017 (Official Gazette Vol. Α 201/22.12.2017) and in particular according to article 22 the already existing – and still valid – articles under nr. 1438 and 1441 of the Greek Civil Code have been amended by imposing a consensual divorce via Notarial deed.
As per the provisions of the consensual divorce via a notarial deed the representation of both spouses is to be occurring via their lawyers respectively who are after all the ones to sign along with the spouses, or even by themselves if it has been so decided according to a relevant mandate appointed via a certain notarized proxy, the notarial deed regarding consensual divorce, the divorce agreement as such, as well as other written arrangements with regards to custody, communication and alimony. The notarized proxy in order for all documents to be duly signed by the lawyers should have been provided with within the last month just before the final signatures.
According to the newly-fledged procedure, between the time of the signature of the divorce agreement and the signature of the notarial deed as such there should be a ten (10)-day period. In order for the date of the signatures to be properly validated in terms of the agreement arranging the marital separation, the recently amended article 1441 of the Greek Civil Code provides that the two signatures of the spouses need to be validated before the Secretariat of the Magistrate Court where the appointed Notary has his/ her professional seat registered.
The minimum necessary supporting documents in order for the appointed lawyers to proceed with their work and for the consensual divorce to be concluded read as follows:
- Recently issued Certificate of Family Status
- Recently issued Registrar’s certificate of birth
- If there are children born while in matrimony, who still remain minor, their certificates of birth are also of necessity
b. Divorce by means of an adversarial procedure
In case of a marriage which is to be terminated by the spouses though, if they seem to be disagreeing on several matters of the post-marriage status and no common ground – or for what is worth, only little ground – can be found upon which to build consensus, then the only thing refuge left is court litigation and respective court decision following an adversarial procedure. According to provisions of article 1439 of the Greek Civil Code:
”Any of the two spouses may initiate proceedings for a divorce, as soon as their relations have been severely shaken due to a reason related either to one or to both of the spouses, making it unbearable for the claimant/ plaintiff to continue with marriage
If not otherwise proven, the marital breakdown is to be founded on grounds of bigamy or adultery, claimant suffering abandonment or threat against his/ her life by the defendant, as well as domestic violence inflicted upon the claimant/ plaintiff by the defendant.
Given that the separation has been taking place for at least two years, the breakdown is to be founded on non-rebuttable grounds and the divorce is to be set in progress, even if the reason of such a breakdown relates merely to the face of the defendant’s. The time prerequisite is to be taken into consideration at the time of the lawsuit’s discussion before a Court of Law and it is not to be interrupted by minor intermissions that might have taken place in terms of attempts to have things rectified between the spouses”
Therefore it is beyond any conceivable doubt that any of the two spouses could initiate the process for a divorce by means of an adversarial procedure as soon as:
- There is a grave breakdown in such ways regarding the relation between the spouses as such, in a way that the continuation of the marital status has reached its breaking point for at least one of the spouses. It is within this framework that the provisions of article 1439 par. 2 of the Greek Civil Code refer to bigamy, adultery, abandonment, threat of one’s life, or even the case of domestic violence inflicted by one spouse to the other, essentially the claimant/ plaintiff. Even if one of the aforementioned cases is substantiated, this is enough for the marriage to be considered damaged; or
- The spouses have been separated in continuation for at least two years’ time. In this event the breakdown is to be founded on non-reputable grounds. The definition of separation in a case like this could be practically coined as follows:
“… it is to be considered a state of things whereby the spouses have been distanced both psychologically and physically from each other, by their own will not to share common living conditions, irrespective of whether that specific separation, as a sheer fact, has been a result of one of the spouses’ initiative or of both of them, and irrespective of whether they have been residing together but on a separation status in terms of sharing food and bed. The subjective will to cease marital partnership (psychological perspective),which is not merely about the claimant/ plaintiff or which it might as well concern both spouses, does not have to constitute merely a mood or a desire, but rather has to be expressed in an extrovert fashion. By way of the aforementioned separation, the law in order to facilitate the effort of reconstituting spousal relations, does not consider minor intermissions as sufficient enough so as to reconstitute matrimonial affairs, despite the fact that in those instances the intention of marital interruption is inexistent, while, at the same time the separation as such is present, even if short intermissions take place for any reason whatsoever, which do not interfere with the constantly present intention of having the marital bond broken down” (Supreme Court ruling 1350/2017).
The competent Court to rule on marital separation cases is the First Instance Court of the couple’s last residence, which is to have its proper hearing according to the specially designed procedure of marital affairs.
Regardless of the separation procedure (consensual or by means of an adversarial procedure) and the way the marriage as such actually took place (secular or civil), the ruling is to be considered definite and, therefore, it can be appealed. So, as long as the option of going against a definite ruling is available, that exact ruling is not enforceable and its consequences are not to be imposed to all interested parties, or to third ones for what is worth, given that this is not an erga omnes decision.
As soon as the ruling at hand becomes final, the deadline to proceed with any sort of an appeal-like procedure is to be initiated, in other words regarding even rehearing and cassation alike. The deadline regarding the first one and especially with regards to marital affairs (article 598 Greek Civil Procedural Code)is 6 months’ time as of the date of writ summoned by the bailiff, while with regards to cassation is thirty -30- days as of writ date. The deadlines for both the rehearing and the cassation coincide.
Therefore, the first-instance ruling is to become irreversible only after a time-period of 7 months has gone by unexploited (30 days for the appeal and a caveat to set aside procedures, and 6 months for the rehearing, by which time the 30 days of cassation shall also go by). Please bear in mind that August is not to be taken into consideration in all of the abovementioned deadlines.
How We Can Help
if your choice is your marriage to be resolved consensually: a private agreement is to be signed before the Magistrate Court by way of signatures which need to be validated, and in ten days’ time the notarial deed regarding the termination of marriage is to be duly signed before a competent Notary. This certain notarial deed needs to be later on registered with the City Register, where the marriage in the very beginning had been registered, in order for the Register records to be properly updated. There is also the option of having a notarial proxy in place so as for appointed Lawyers to act on behalf of the spouses.
if your choice is to follow the divorce by means of an adversarial procedure then a lawsuit needs to be filed with the First Instance Court whereby the soon-to-become-litigants spouses had been residing together. As soon as the lawsuit gets to be brought before the Court, a decision shall be reached according to which the marriage shall be resolved.
If both spouses seem to be agreeable on that, they both resign from the option of following any appeal-like procedure before the Court’s Secretariat, and on the same day relevant certificates are to be issued accordingly regarding marriage termination. The Court’ s ruling along with the relevant certificate confirming its irreversibility are to be registered with the City Register so as to have the certain Register file properly updated.
However, if any of the spouses does not give in to a consensual termination, thus no resignation from any appeai-like procedures is to take place, the relevant Court ruling needs to be handed by means of a writ concluded by a bailiff from one spouse to the other, and after 7 months’ time, time enough for the ruling to become irreversible, the certificate of irreversibility shall be issued and the procedure of having the City Register and the related thereto offices and departments shall be duly concluded.