Spouses may submit a lawsuit or a petition for an uncontested divorce personally or through a representative.
If a lawsuit in a marriage dispute is submitted by an attorney of the Party, power of attorney must be notarized and issued only for representation in a marital dispute and it must contain allegations concerning the type of lawsuit (divorce lawsuit/submission of a proposal for the uncontested divorce) and the basis for filing a lawsuit (serious and permanently disturbed marital relations, failure to meet marital union, marriage bans and disturbance, formal shortcomings, etc.). The same attorney cannot represent both spouses in a marital dispute initiated with a petition for uncontested divorce.
Notary Public certifies special power of attorney, and in the event that a spouse who files a lawsuit, or one of the petitioners in an uncontested divorce lives abroad, special power of attorney can be certified abroad in the diplomatic-consular representation of Serbia or with a Notary Public. However, it is always recommended for the certification to be done in the diplomatic-consular representation, if there is a possibility for this, due to a simplified procedure and lower costs (lack of need for translation by an authorized court interpreter and the recognition of such power of attorney in Serbia).
Who can be a legal representative under Special Power of Attorney?
The legal representative of a natural person may be a lawyer, a first-degree blood relative (parents, children, grandchildren…), brother, sister, as well as a representative of legal aid service of a local self-government unit who is a law graduate admitted to the Bar.
The exercise of parental rights
Care for children is a particularly sensitive and important issue for each parent. For this reason, divorce with an international element can be a major problem for both children and parents, especially if they live in different countries, as a series of issues are raised on which spouses should agree. These are some of the most important issues:
- The exercise of parental rights
- Children’s place of residence
- Child support.
Domestic regulations stipulate that the issue of exercising parental rights must be solved within the marital dispute. Consequently, the jurisdiction of the court for the divorce also extends to this segment of family relations, since the exercise of the parental right is an accessory decision along with the decision to divorce (the issue of exercising parental rights must be resolved in the divorce proceedings).
If spouses are divorced by mutual agreement, this means that they have also agreed on the exercise of parental rights on joint children, because it is an integral part of this agreement.
Serbia is a signatory to the Hague Convention, which closely regulates the relations between parents and children. This Convention provides for the jurisdiction of the court and the applicable law for the relations between parents and children in the country of the child’s habitual residence. This rule can only be waived if that is in the best interests of the child, and the competent court decides on the best interests of the child in each particular case. In addition, only the court of the child’s habitual residence can waive jurisdiction, either by being asked from another court to transfer jurisdiction, or the transfer of jurisdiction to another court could be the court’s sole decision, believing that this is in the best interest of the child. At that point will the court that is not competent be left to decide on the relationship between parents and children, provided that the court with the assigned jurisdiction has a significant relationship with the child (the court in charge of parents’ divorce, the court of the country of nationality or the court of the previous habitual residence of the child). It should be noted that for the purposes of this Convention, a child is considered a person under the age of 18.
The Convention provides for the application of the law of the country where the court is located and in the event of a transfer of jurisdiction, the law of the country which decides on the relationship of parents and children will also apply (the law of the country with the assigned jurisdiction is applied). This rule may be waived in cases the law of the decision-making court differs substantially from the law and the public order of the country of the habitual residence of the child. In that case, the problem of recognition and execution of such a decision could arise in the country of the child’s habitual residence.