The ABC of divorce
In the case of a divorce it is very difficult to establish when and why this process which resulted in breakdown has started. There are no two similar divorces: each has a different story, different actors and dynamics. However, the scenario according to which this process takes place makes quite a difference. Forward thinking and timely preparation may help protect you and your children from protracted hatred.
If divorce is inevitable, the aim should be to ensure that the dissolution of the marriage takes place in the fastest and least painful way, as well as in dignity.
According to art. 373 of the Civil code, marriages may be dissolved for the following reasons:
- based on the joint application of the spouses to this end (so-called “dissolution based on agreement) or upon the request of one of the spouses if the other party accepts it
- upon request of any of the spouses for overriding reasons if the marriage has been completely and irremediably compromised (so-called divorce based on the facts)
- upon request of any of the spouses if the parties have been separated in fact for at least 2 years, as well as
- upon request of the spouse whose state of health renders it impossible to continue the marriage.
If the spouses agree on the divorce and they do not have common minor children, divorce may be granted within the framework of an administrative procedure by the registrar or notary public competent according to the place of marriage or the last common domicile.
In both cases, registrars/notary publics only issue the document certifying the divorce after the expiry of a 30-day reflection period without establishing fault on the part of any party for the dissolution of marriage.
In order to avoid a court procedure the parties must agree on every issue related to the divorce: name after the divorce, custody of children, domicile of minor children, contact between the child(children) and the parent living separately, child support.
If one of the spouses does not wish to divorce or the parties are not able to agree on any issue related to the divorce, the dissolution of marriage by a court of law is the only possible solution. Within the framework of this procedure the reasons leading to the breakdown of marriage have to be explored.
In such cases, the spouse filing the application for divorce shall prove that the marriage is completely and irretrievably broken. Usually, the reasons may be sustained by witnesses, but documents and other evidence may also be accepted.
The party not responsible for the breakdown of marriage has the possibility to seek compensation from the “responsible” spouse for any damage that the divorce might have caused him/her.
At the same time, in the case of the dissolution of a marriage that has lasted for more than 20 years, if the court grants the divorce due to the exclusive fault of the defendant spouse, the plaintiff spouse has the right to compensation designed to improve the deterioration of the plaintiff’s living standards.
According to art. 397 of the Civil code, after the dissolution of the marriage parental rights are jointly exercised by the former spouses and courts may only decide otherwise in exceptional cases if the interests of the minor should so require.
Let us not forget that an agreement is the prerequisite of a good divorce: the whole divorce process and the costs incurred depend on the communication between the former spouses.