DIVORCING A FOREIGN SPOUSE IN SERBIA

5
May 2017

In one of our previous blog posts, we wrote on the topic of divorce, its essential characteristics and the entire divorce process, which is often accompanied by additional complications related to sharing common property and the exercise of parental rights. In this blog post, we will focus on the issues that may come up when divorcing a foreign spouse, by focusing on two central matters:

The court of which country will have jurisdiction over the divorce of a mixed-nationality couple;
Which Law will be applicable, i.e., the law of which country will apply in such a divorce

Court Jurisdiction

Serbian regulations, or more precisely, the Law on Resolving Conflict of Law with Regulations of other Countries, provide for jurisdiction of a domestic court for divorce if one of the following conditions is met:

The defendant in the divorce proceedings has permanent residence in Serbia.
The petitioner is a Serbian citizen and has permanent residence in Serbia.
Spouses had their last residence in Serbia, and the petitioner (foreign citizen) had a permanent residence or a temporary residence in Serbia at the time of filing the petition.
The petitioner is a Serbian citizen, and the law of a Country whose jurisdiction is competent does not provide for the Institute for divorce.

There are two ways to carry out a divorce process – either by spousal agreement, which is a no-fault (uncontested) divorce or by divorce lawsuit that is brought before a competent court. Depending on the model that the spouses chose, the divorce is initiated either through a petition for an uncontested or a contested divorce. If spouses opt for uncontested divorce, this means that they have agreed to the divorce, the exercise of parental rights and on the sharing of common property.

So, if you want for the Serbian court to grant a divorce, one of the listed conditions has to be met for the court to resolve the divorce issue.

It is not possible to agree on the jurisdiction of the domestic court in marital disputes, which means spouses cannot choose the Serbian court to be competent if one of the above conditions is not met.

Local jurisdiction will be determined according to the place of permanent or temporary residence of spouses from some of the conditions listed above, while the Basic Court has subject matter jurisdiction.

Regulations, however, have established jurisdiction only for the contested divorce, but as the uncontested divorce is also a marital dispute, the provisions of the Law on International Jurisdiction are analogously applied to uncontested divorce, and so both Parties should be considered both to be a defendant and a petitioner, and the said rules should be applied accordingly.

Applicable Law

After the jurisdiction of the court is determined, the issue arises of the rights to be applied in this case. Unlike jurisdiction of the court, where our court will establish international jurisdictions even in cases where only one spouse is a Serbian citizen, different solutions are applied to the applicable law. Since divorce poses a financial issue for spouses, both the cumulative and Serbian law will be applied, i.e. well as the foreign law, i.e., the law of the country of the foreign citizen who is getting a divorce.

If the Serbian citizen, in addition to Serbian citizenship, owns a citizenship of the country of their, soon to be former spouse, not only the foreign law will be applied as the law of common citizenship, but certainly, both the domestic and foreign law. Prior to the application of foreign law, the divorce is recognized in the country of the foreign citizen, provided that stricter conditions are foreseen for divorce in that country. The only possibility to depart from the cumulative application of both rights is that divorce could not be handled through such way, i.e. that the spouse could not get a divorce under foreign law, in which case only domestic law would be applied, and what the court decides on in each particular case.

How to Get a Divorce if Marriage Was Concluded Abroad?

A marriage concluded abroad between a Serbian citizen and a foreigner, represents only a factual but not legal relationship in Serbia until the competent Serbian authority recognizes it, and so the Serbian court cannot grant a divorce of such a marriage. Therefore, it is first necessary for the marriage concluded abroad to be recognized in Serbia by the competent authority.

The questions which remain are: which authority is responsible to recognize the marriage and what are the cases when a marriage concluded abroad cannot be recognized in Serbia?

Recognition of a marriage concluded abroad is the responsibility of the national authority that keeps the registries, which is the registrar in Serbia, and the diplomatic and consular representation of our country abroad.
A marriage that is enforceable under the law of the country where it was concluded will be valid in our country unless it is contrary to the Serbian public order and the understanding of morals (for example, if a marriage is concluded between two same-sex persons).

If a divorce is concluded abroad, a foreign court decision will be in full effect in Serbia if it is recognized by a domestic court and registered in the registries. Therefore, for the recognition of such decisions, the local court where the registries of a Serbian citizen to whom the decision applies is competent.

Conditions to Recognize a Foreign Court Decision on Divorce:

Any person having a legal interest may seek the recognition;
A foreign Court Decision on the divorce must be final;
Recognition may be refused if the divorce has already been concluded before a domestic or foreign court;
If the Serbian court has sole jurisdiction for the divorce, i.e., when the respondent is a Serbian resident and citizen, court decision shall be recognized only if they request recognition on their own or do not oppose the recognition requested by the prosecutor.

Special Power of Attorney

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[1], 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.

Taking Children Abroad

Oftentimes, with marriage dissolution, one of the parents wants to return to the country of their origin with their child or decides to move to a third country. In some of these cases, the Hague Convention on the Civil Aspects of International Child Abduction (1980) applies. The Hague Convention will apply if the following conditions are met:

There has been an unlawful taking away of a child to the Contracting State or the illegal detention of a child in a Contracting State;
The child is under the age of 16;
Prior to being taken away, i.e., retention, the child had a regular residence in the country which is a Contracting Party to this Convention.

In one of our previous blogs, we elaborated in detail the topic of international child abduction. You can read on the conditions under which the child is thought to have been unlawfully taken away and held in another country, how to start the child’s return process, what are mechanisms of legal assistance that the other parent has at their disposal when they find this situation and other information related to this issue.

Child Support

Each parent is obliged to take care of for their child, which means that they provide child support to them according to their abilities and income, providing the child with basic means of living, education, integration into society…

The Serbian Family Law stipulates the judgment of dissolution of marriage must also decide on the exercise of parental rights, and therefore also to the child support. So, if a domestic court is in charge of the divorce, it will be competent to decide on the child support of joint minor children.

The court is obliged to particularly urgently handle child support disputes, which means that it must schedule the first hearing within 15 days from the receipt of the complaint.

The amount of alimony is determined according to the needs of the child, their age, health, property at their disposal and the potential of their parents (earnings, personal needs, obligation to support other persons…). It cannot, as a rule, be less than 15% nor higher than 50% of the total permanent monthly income of the parent who has the child support obligation, reduced by taxes and contributions for compulsory social security.

Regarding this issue, it is also important to mention the Convention on the Recovery Abroad of Maintenance, which Serbia ratified. The Convention establishes mechanisms that should enable and facilitate the fulfillment of the obligation to provide support if the donor and the recipient of child support are in different countries.

Sharing Common Property Acquired Through Marriage

It is customary for the spouses to carry out some wedding follow-up purchases: to buy an apartment, furnish it according to their aesthetics and desires, buy a car or maybe even raise a loan if the spouses believe are unable to carry out financial goals without it.

In the case of a divorce, spouses will share everything they acquired through marriage and that procedure can be complicated and unpleasant on its own, accompanied by the demands and attitudes of both spouses on what belongs to whom and who contributed to what degree to the marital community and its property. Divorce with a foreign citizen is another issue. It raises the question of the jurisdiction of the court for assets that are not located on its territory, as well as for the joint property of spouses where only one of the spouses is Serbian citizen, as well as the question of the law to be applied in such a case.

The sharing of common property acquired in marriage can be carried out in two ways, either through:

Agreement
Judicial division of property

If the agreement on sharing common property has not been reached, the matter the civil court decides on this matter in a special lawsuit on the division of property acquired through marriage, which is most likely to be initiated after the divorce.

In this procedure, the Serbian court will establish international jurisdiction if the defendant is resident in Serbia. The Serbian court will also be competent in the place of permanent or temporary residence of the petitioner in Serbia, but only on condition that the property that is the subject to dispute is also located in the territory of Serbia.

For the property abroad, the Serbian court may be competent only with the consent of the defendant as follows:

If the majority of the property is located in the country;
If the property abroad is being decided on in the same dispute as for the one which is in charge of dividing the property in the country.

The Serbian court will also be competent in the matter of real estate located on the Serbian territory. It is not necessary for either party to have a place of residence in the Serbian territory.

In property disputes, it is possible for the spouses to agree on the jurisdiction of our court but provided that at least one of the spouses is a Serbian citizen. Spouses may also agree on the jurisdiction of a foreign court, but it is necessary for at least one spouse to be a foreign citizen and that the property in the matter is on the Serbian territory.

The Law of which country will apply in this case?

The right of the country in which the spouses have their permanent residence
If spouses no longer hold permanent residence in the same country, the law of the last joint residence of spouses shall apply
If spouses did not share common permanent residence at all, the law of the Republic of Serbia shall apply

This blog post rounded up the matter of divorce with a foreign citizen and provided answers to most frequently asked questions from our clients in practice. Although divorce with a foreign element almost always leads to a fairly complicated procedure, we conclude it does not always have to be the case, especially if our court is competent for divorce, and the foreign law that applies in divorce proceedings does not differ substantially from the Serbian law.