Divorce everything you need to know

No one decides to get married given that at some point he will divorce. However, experience – and high statistics – have proven that a possible divorce is always in life. In Greece in recent years and due to the economic crisis the number of divorces has really skyrocketed as it has exceeded 34% of marriages and is expected to soon reach 50%.

The types of divorce are in principle two, the consensual divorce and the divorce by litigation.

The consensual divorce It is the simplest, most economical and fastest way to dissolve a marriage, with the advantage that at the same time all issues are regulated with a ΄΄agree package΄΄ (when there are children, custody, alimony, property, family home). According to article 4 – Law 4800/2021 – Consensual divorce – Replacement of article 1441 A.K. With effect from 21/05/2021 : 1. Spouses may, by written agreement or joint digital declaration, dissolve their marriage. The written agreement is drawn up between the spouses or the joint digital declaration is submitted by them in the presence or by digital partnership of a proxy lawyer respectively for each of them. When the agreement is written, it is signed by them and by their attorneys or only by the latter, as long as they are equipped with a special power of attorney. The power of attorney must have been given within the last month before the signing of the agreement. 2. If there are minor children, in order to dissolve the marriage, the distribution of the parent must be regulated by the written agreement or the joint digital declaration of par. 1 or by another agreement between the spouses, as defined in par. 1 Care and especially the custody of the children, their place of residence, the parent with whom they live, their communication with the other parent and their maintenance. The above written agreement or the joint digital declaration is valid for at least two (2) years and is automatically extended, unless one of the two parents declares in writing to the other parent, before the end of the agreed time, that they do not wish to be extended. 3. a. The written agreement on the dissolution of the marriage, as well as any separate agreement on the distribution of parental care, the custody, the place of residence, the communication and maintenance of the minor children, are submitted by the attorneys of each spouse together with the special Power of attorneys to a notary. b. The drawing up of the notarial deed of par. 4 is at least ten (10) days away from the written agreement of the spouses or the joint digital declaration. The date of the written agreement of the spouses is proven by a certificate of the authenticity of their signature. Certification of the authenticity of the signature of the spouses is not required in the case of submitting a joint digital declaration. 4. The notary prepares a deed by which he confirms the dissolution of the marriage, validates the agreements of the spouses and incorporates them into it. The notarial deed is signed or approved by electronic means by the spouses and their attorneys or only the latter, as long as they are equipped with a special power of attorney. The power of attorney is given in the last month before the signing of the deed. When the certificate concerns the custody, communication and maintenance of minor children, the act is an enforceable title, as long as the provisions of articles 950 and 951 of the Code of Civil Procedure have been included in the agreement. After the expiry of the validated agreement, the custody, communication and maintenance of the children for a further period of time with a new agreement and with the same procedure may be regulated. 5. The dissolution of the marriage comes with the filing of a copy of the notarial deed at the registry office where the establishment of the marriage has been filed, or by informing the registry office using IT and communication technologies.’

Divorce with litigation It is issued in the event that the spouses cannot reach an agreement, and his marriage is dissolved a) either due to a dimension of two years (Divorce due to two years), b) either due to strong shocking events of the marriage (Divorce due to a strong shock to the marriage).

In the case of divorce due to two years, The shock is implicitly presumed and the divorce is issued if it is proven that the spouses have been separated continuously for at least two years, regardless of who is responsible for the separation. The completion of the separation time is calculated at the time of the discussion of the lawsuit and is not hindered by small interruptions that took place as an attempt to restore the relations between the spouses.

In the case of divorce due to a strong shaking of marriage The divorce is issued when the relations between them have been shaken so strongly, due to the person of the defendant or both spouses, that the continuation of the married cohabitation is validly unbearable for the plaintiff. The shaking of the marriage occurs when the mental disposition of one or both spouses is missing for the continuation of the married life. In fact, to facilitate the proof of the strong shock of marriage, the law establishes a series of cases, which constitute ex lege militant presumptions of a strong shock, and include limited the following cases: bigamy, adultery, the Abandonment of marital housing, the scheming of life and the exercise of domestic violence.

In both of the above cases, the divorce is pronounced by an irrevocable court decision, in accordance with the conditions of articles 1439 – 1441 of the Civil Code. And as long as there are no children or common property, the litigation also ends.

In the event that the spouses acquired property during their marriage and do not agree on how to distribute it., are very often involved in a second dispute between them for the claim to participate in the acquisitions, in particular:

According to the provision of article 1400 of the Civil Code: ‘If the marriage is dissolved or annulled and the property of one spouse has, after the marriage took place, the other spouse, if he contributed in any way to this increase, has the right to demand the return of its part Increased from its own contribution, it is assumed that this contribution is 1/3 of the increase, unless it turns out to be greater or less than no contribution. From the provision of article 1400 of the Civil Code, obtained in conjunction with the provision of article 216 of the Civil Code, it follows that data on the specific of the action by the acquisitions are:

1) the dissolution or annulment of the marriage or, by analogy, the completion of a three-year dimension of the spouses;

2) The increase in the property of one of the spouses during the marriage

3) The contribution of the other spouse to this increase in any way (AP 1912/2009).

In the case of minor children, the issues of regulation of the exercise of parental care, custody, maintenance and very often the regulation of family housing arise, Details:

Parenting For the minor child according to the Civil Code it is the duty and right of the parents, who exercise it together. Parental care includes the custody of the person, the administration of the property and the representation of the child in any case or legal act or trial, concerning the person or property (such as naming, choosing a religion, performing serious surgery intervention, the choice of contractor, etc.). In case of separation or divorce of the parents, parental care is still exercised by both of them together, but custody is exercised exclusively by one. Recently, the institutionalization of co-custody of children after a divorce has been promoted, as is also the case in other European countries.

The custody of the child It is the most important of the three functions of parental care as it includes raising clothing, footwear, food, shelter, health, etc.), supervision, education and education, as well as the determination of the place of residence of the minor child or children (usually after divorce). The custody of the children is perhaps the most critical point of the divorce process for both parents and their children as it is related to their mental and physical development, but also their moral and social education.

In case of termination of married cohabitation or divorce, competent to regulate the issue of the custody of children is the Single-Member Court of First Instance, which in order to take a relevant decision must respect equality between parents without proceeding with discrimination on the grounds of gender, social origin or property. The primary criterion is the interest of the child. The abilities of the parents, the environment, the profession, their intellectual development and their action in society as a whole, the stability of the child’s development conditions without changes in the living conditions are included in the criteria for determining the child’s interest. Of essential importance is the existence of any special bond between the child and one of his parents, which is taken seriously by the court.

The child’s sustenance It is one of the main causes that causes quarrels and confrontations between spouses in case of divorce. By the term ‘nutrition’ means the amount of money required to cover the living and other needs of the minor child, i.e. for food, housing, heating, clothing, footwear, entertainment and medical care thereof, as well as for the upbringing and his education (tutorial, foreign languages, sports activities, school expenses, etc.). According to the law (articles 1486 par. 2, 1487 subsection b, 1488, 1489 par. 2 and 1490, AK) both spouses have an obligation to support the common minors their children, according to their own strengths, since they cannot feed themselves from income or work. The measure of each child’s maintenance is determined based on his needs, as they are shaped by the conditions of his life (proportionate maintenance), taking into account the quantitative maximum amount of maintenance that the parents can give as well as the quality minimum needs of the minor child, based on the common sense of human dignity.

The maintenance obligation is imposed by law, therefore there is no waiver of it even if it is agreed by a private agreement with the consent of the two parents, as such a condition is invalid.

In case of non-payment of the maintenance of a minor child by the liable parent, Whether it has been determined and ratified by constituting an enforceable title, in the context of a consensual divorce, or it has been determined by a court decision by the Court in the context of a dispute, there are serious consequences which are the following:

According to civil law The parent who has custody of the child may initiate the parent who does not pay the enforcement procedure, i.e. seize his immovable and movable property and then conduct an auction with the aim of confiscating his immovable and movable property To satisfy the financial requirement of the alimony. A more short and economical way is seizure in the hands of a third party, i.e. if the parent who owes alimony can be seized in the hands of the employer from his salary, also if he has a bank account, the amount can be seized from his bank account. In the event that the parent who owes alimony has no income or movable or immovable property, so that a confiscation can be made, alimony does not cease to be due. That is, the court, even if the debtor declares himself unemployed and without property, will award alimony anyway, although reduced, because it is considered that the debtor must take care to secure some income, in order to support his children.

According to criminal law Violation of the obligation to support the liable parent constitutes an offense of art. 358 of the Civil Code, with a prison sentence of up to one year and is a permanent crime. The permanent crime has the peculiarity that the time limits of the typical self-incrimination do not apply, which means that, if a summons has been filed with any Police Department or even the Prosecutor’s Office, it is possible for the person to be arrested and tried with the spontaneous procedure even several days after its submission. In the event that the perpetrator (obliged) repeatedly and at different time intervals violates the maintenance obligation, he can be punished many times. With the above criminal provision, the legislator wanted to protect the financially weak wife from the husband who, although he has the financial ability, despite this, maliciously motivated by reasons of revenge and malice, does not meet his obligations for payment of maintenance.

By Panagiotis Georgiadis

Attorney at the Supreme Court