Divorce

From 1.1.2014 the New Civil Code enter into force and New Civil Code abolishes the Family Act and incorporates the family legal regulations into art. § 655 – 975.

There are two types of divorce proceedings and it depends on the question whether you have children or not. For dissolving marriage where there are common children, the prerequisite is custody order. Once you have a custody order or if your marriage is without children, you may divorce. There are two options for your divorce claim. Either you both agree and the divorce will be speed or you go for non-amicable divorce. No-fault divorce frees couples from having to sling mud at each other. Nobody has to charge anybody with wrongdoing, much less prove it, in order to dissolve a relationship. There are two conditions to be met: the marriage lasted at least one year, the spouses have not been living with each other for at least six months, they agreed on custody and community property division. The choice of the type of the divorce has impact on spousal support, especially on divorced spousal support.

The conditions for the divorce remain the same in principal in Art. § 755 – 770.

Divorce without children: the court may divorce the marriage if the marriage is so broken that renewal of the marriage community can not be expected; in deciding on divorce, the court takes account of causes of the breakdown of marriage if it is not amicable (no-fault divorce).

Divorce with minor children: the marriage can not be divorced if it is not against the best interests of these children based on special reasons. Before issuing a decision on divorce of spouses having a minor child, the court shall regulate their rights and duties to the child after the divorce; the court shall particularly determine who shall be entrusted with custody of the child and how each of the parents shall contribute to his or her maintenance.

Speed divorce (amicable, no-fault divorce)

the marriage existed at least one year

the spouses have not been living with each other for at least six months

the other spouse joins the petition for divorce.

The court shall not look at causes of the breakdown and shall divorce the marriage if the spouses submit

    1. written agreements with officially verified signatures of the participants regulating settlement of community property division, rights and duties from their common residence and an eventual maintenance duty after the divorce (not required if amicable divorce); and
    2. a final and conclusive decision of court approving of an agreement about regulation of the condition of minor children after the divorce.

Disagreement with the divorce

If the spouse who did not predominantly take part in breakdown of the marriage through violation of marriage duties disagrees with the petition for divorce and the divorce would lead to a considerable harm to this spouse, the court shall reject the petition for divorce if extraordinary circumstances indicate that the marriage should be preserved. It does not apply if the spouses have not been living with each other for at least three years.

Marriage annulment:

The court will annul the marriage, if any of the reasons for annulling the marriage occur: if the marriage has been concluded with a man or woman who is already married, with a progenitor or descendant or with a sibling; if the marriage involves an individual who is a minor (provided the conclusion of the marriage has not been approved by the court for an individual of sixteen years of age and older) ; if the marriage has been concluded by an individual who has been stripped of the capacity to undertake legal acts or an individual suffering from a mental disorder, which would result in said individual being stripped of his or her capacity to undertake legal acts, provided the court has not approved the conclusion of the marriage.

The court will annul the marriage only based on proposal by one of the spouses

if the marriage has been concluded without the court’s approval by an individual with a limited capacity to undertake legal acts or by an individual afflicted with a mental disorder which would result in the limiting of his or her capacity to undertake legal acts;

if the declaration of the conclusion of the marriage has been undertaken as a consequence of illegal threats or as the result of an error concerning the identity of one of the fiancées or concerning the nature of the legal act of the conclusion of the marriage (in this case, it is necessary to submit the proposal at the latest within one year of discovering the fact).

The marriage does not come into being at all

if the declaration of the conclusion of the marriage has been undertaken as a consequence of force using physical violence;

if it has been concluded with a minor of less than sixteen years of age;

if any further conditions have not been adhered to (some conditions concerning the conclusion of a marriage in a church wedding and the conditions for concluding a wedding with a representative).

Procedure:

Where to submit

A proposal for a divorce or for the declaration of the annulment of a marriage is submitted to the District Court (Okresní/Obvodní soud) for the district in which the couple had their last place of cohabitation in the Czech Republic, provided at least one of the spouses lives in the district. If this is not the case, the proposal is submitted to the District Court in the district where the second spouse lives. If the second spouse does not live within the territory of the Czech Republic, the proposal is submitted to the District Court in the district where the submitting spouse lives. However, see more detailed rules in Section Jurisdiction on this blog.

The costs

The participants are not entitled to compensation for the costs of the divorce proceedings, the annulment of a marriage or the definition as to whether or not the marriage is valid. The court may admit the compensation for these costs or part thereof, if the circumstances of the case or the situation of the participants justify doing so. It is therefore necessary to present the court with a well-grounded proposal and the court will reach a decision.

According to the provisions of section 138 of the Civil Procedure Code, the chairman of the court senate may grant the participants full or partial exemption from the court costs, providing the participant’s situation so requires and provided this does not involve the arbitrary proposal or obstruction of a right. If it is necessary for the protection of the interests of a participant in the proceedings, the participant may also request the court to appoint said participant legal counsel.

Fee

There is court fee in amount of 2.000 CZK to be paid when submitting the petition (to Court).

Appeal

It is possible to appeal against a decision granting a divorce or annulling a marriage within fifteen days of the receipt of the written copy of the decision. The appeal is submitted in writing to the court whose decision is the subject of the appeal. If a corrective decision is issued with regard to the original decision, this deadline begins as of the corrective decision coming into legal effect.

Foreign decisions

Final decisions of foreign courts concerning marital matters are recognised under the conditions set out in the law, provided at least one of the participants in the proceedings is a Czech citizen. Only the Supreme Court may acknowledge such a decision after a hearing with the supreme state prosecutor. As well as the participants, the proposal may be lodged by anyone who can prove a legal interest in the matter or by the supreme state prosecutor in the interests of society. See section Jurisdiction on this blog.

If all the participants at the moment of the divorce were citizens of the state from which the decision comes, valid foreign decisions in marital matters have the same legal effects as valid court decisions in the Czech Republic without any further proceedings (as long as it is not necessary to submit a proposal for the recognition of the decision) , provided this does not contravene public order. See section Jurisdiction on this blog.

Applicable law

The divorce is governed by the legal system of the country, whose citizens the spouses were at the time of the commencement of the divorce proceedings. If the spouses are citizens of different countries, the termination of the marriage by means of divorce is governed by the legal system of the Czech Republic. See section Jurisdiction on this blog.

If it is necessary to use a foreign legal system that would not permit the termination of the marriage by means of divorce or would only do so under exceptionally difficult circumstances and if at least one of the spouses has been resident in the Czech Republic for a long time, Czech law is used. The same rules also apply for the declaration annulling a marriage or for ascertaining whether or not the marriage is valid. See section Jurisdiction on this blog.

After divorce

Divorced women may notify the registry office within six months from the divorce decision becoming final for the change to her previous surname.

The community property is cancelled. The New Civil Code defines what constitutes the couple’s community property. The couples are allowed to expand or reduce the defined legal scope of the joint property. The court may also reduce the scope of the joint property for explicit reasons.

The custody of the minor children and maintenance to the other spouse and children are subject of the other parts of the blog.

Template

This Template could serve as a preparation for the first meeting with the specialized barrister in the relevant area.

Custody agreement after separation draft by JUDr. Eva Ondřejová, attorney at law office – for details and drafting of the version for you, contact the office directly.

Personal protection claim template

Divorce Claim is a structured document and has compulsory arts and documents that must be submitted to make the procedure quicker. This template serves as a list what to prepare.

Divorce claim template

See the Template in: https://czechfamilylaw.wordpress.com/templates/

Sources

The New Civil Code in English

http://obcanskyzakonik.justice.cz/fileadmin/NOZ_interaktiv.pdf

Former Family Act in English:

http://www.zakonyanglicky.cz/?documentation=act-no-941963-coll-on-family-2

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