AKMV 
Marriage with a foreigner or a marriage concluded abroad brings several legal specifics regarding divorce and property settlement. Rules of both European and Slovak law apply, especially concerning court jurisdiction and the applicable law.
Marriage to a foreigner – Is it possible to get divorced in Slovakia?
Yes, Slovak courts can rule on divorce of a marriage with a foreign element, but only under certain conditions. The court’s jurisdiction is assessed according to Council Regulation (EU) No 2019/1111 (the so-called Brussels II bis Regulation), which regulates international jurisdiction in matrimonial matters.
Pursuant to Article 3 of the Brussels II bis Regulation:
“In matters relating to divorce, legal separation or annulment of marriage, jurisdiction shall lie with the courts of the Member State:
a) in whose territory:
i) the spouses are habitually resident;
ii) the spouses were last habitually resident, in so far as one of them still resides there;
iii) the respondent is habitually resident;
iv) in the event of a joint application, either of the spouses is habitually resident;
v) the applicant is habitually resident if he or she resided there for at least one year immediately before the submission of the application; or
vi) the applicant is habitually resident if he or she resided there for at least six months immediately before the submission of the application and is a national of the Member State in question; or
b) of the nationality of both spouses.”
Habitual Residence
Habitual residence is not defined in the Regulation. According to the established case law of the CJEU, “Habitual residence for the purposes of determining jurisdiction in the area of dissolution of the marriage bond is essentially characterised by two elements, namely the will of the person concerned to establish the usual centre of their interests at a determined place and the presence which represents a sufficient degree of stability in the territory of the Member State concerned.”
Applicable Law in Divorce Proceedings
The Rome III Regulation does not apply to the divorce proceedings themselves in the Slovak Republic, as Slovakia does not participate in the so-called enhanced cooperation. The applicable law is therefore determined according to domestic law – Section 22 of the Act on Private International Law and Procedure (ZMPS).
- If both spouses are citizens of the same state, the law of that state shall apply.
- If the spouses are nationals of different states, Slovak law shall apply, regardless of where the spouses were married or where they live.
Section 22 para. 2 ZMPS: “If it would be necessary to apply foreign law that would not permit the dissolution of the marriage by divorce or only under extraordinarily difficult circumstances, but the spouses or at least one of them has lived in the Slovak Republic for a long time, Slovak law shall be applied.”
How is Property Settled?
The settlement of the joint marital property (BSM) after a divorce with a foreign element is not regulated by EU regulations, as this is an area explicitly excluded from their scope. The jurisdiction of the Slovak court is therefore determined according to the ZMPS.
Section 37 ZMPS: “Unless otherwise provided, the jurisdiction of Slovak courts is given if the person against whom the application (action) is directed has a residence or seat in the territory of the Slovak Republic, and in the case of proprietary rights, if they have property here.”
A Slovak court can act (establish jurisdiction) if:
- the property is located in the territory of the Slovak Republic, or
- the defendant has a residence in the Slovak Republic.
We draw attention to the decision of the District Court BA II under file no.: 15/103/2011: “From the grammatical and logical interpretation of this statutory provision, it is clear that the jurisdiction of the Slovak court in proceedings concerning proprietary rights, which undoubtedly include proceedings for the settlement of BSM, is given only if the defendant has this property in the territory of the Slovak Republic, regardless of his residence (the conditional conjunction … and if … and not or if …).”
In addition to the above, we also draw attention to the resolution of the Supreme Court of the Slovak Republic, ref. no. 1Cdo/37/2017 dated 22 August 2018: “According to Section 37 ZMPS, unless otherwise provided, the jurisdiction of the courts is given if the person against whom the application (action) is directed has a residence or seat in the territory of the Slovak Republic, and in the case of proprietary rights, if they have property here. According to Section 37c ZMPS, the jurisdiction of the Slovak court may be established in relation to a person also by the proposal of a participant in the proceedings. From the content of the file, it is clear that at the time relevant for determining the jurisdiction to hear and decide the matter, the defendant was actually permanently staying outside the territory of the Slovak Republic… The second condition in the sense of the wording of Section 37 ZMPS “in the case of proprietary rights, if they have property here” was also not met. The formulation of the said provision “if they have property here” cannot be interpreted extensively in the sense that it is sufficient to have any property in the territory of the Slovak Republic (even an account in a bank or similar), but it must be precisely the property that is the subject of the proceedings. A Slovak court therefore cannot establish jurisdiction in a dispute over rights related to property in another state on the grounds that the person against whom the action is directed has property in the territory of the Slovak Republic, if this property is different from that which is to be decided in the proceedings.”
Consequence of Lack of Jurisdiction – Termination of Proceedings
If neither the conditions under Section 37 ZMPS (residence of the defendant or property in the SR), nor the exceptional conditions under Section 47a ZMPS are met, the Slovak court has no jurisdiction to act.
Section 47a ZMPS: “If, according to this chapter, the Slovak court has no jurisdiction, it may, in exceptional cases, establish this jurisdiction if the proceedings cannot be effectively commenced or carried out abroad and the matter has a close connection with the Slovak Republic. This also applies if the recognition of a foreign judgment was rejected in the Slovak Republic and new proceedings cannot be carried out abroad due to the obstacle of a final decision.”
In this case, the provision of Section 9 of the Civil Procedure Code applies: “If the dispute or matter does not fall within the jurisdiction of the court of the Slovak Republic, the court shall immediately terminate the proceedings.”
What Law Will Be Used to Settle BSM?
Pursuant to Section 21 para. 1 ZMPS: “The personal and proprietary relations of spouses are governed by the law of the state of which they are nationals. If the spouses are nationals of different states, these relations are governed by Slovak law.”
“If, however, the spouses are nationals of different states, it follows from the logic of the matter that the conflict rule lex patriae will not be appropriate, as personal and proprietary relations must be subordinated to only one legal regime. According to Section 21 para. 1 ZMPSaP, for spouses of different nationalities, the applicable law will be Slovak law. It is not necessary for one of the spouses to be a Slovak citizen. Slovak law will also be the applicable law, for example, for Czech-German or other mixed marriages. This is an example of a so-called unilateral legal norm, which, instead of a conflict rule directed at any legal order that meets the given criterion (e.g., nationality), directs the determination of the applicable law to the only possible legal order: Slovak.” (Source: CSACH, Kristián, et al. Fundamentals of Private International Law and Procedure. Trnava: Trnava University in Trnava, Faculty of Law.)
It follows from the above that in the case of spouses with different nationalities, Slovak law will always apply as the governing law according to Section 21 para. 1 ZMPS, regardless of whether one of the spouses is a Slovak citizen. This approach ensures uniformity and predictability in the decisions of Slovak courts when determining the applicable law for the personal and proprietary relations of spouses.
This means that if a Slovak court has jurisdiction, it applies the Slovak BSM regime, even if the marriage was concluded in a state with a different statutory property regime (e.g., separate ownership).
Pursuant to Section 21 para. 2 ZMPS: “The agreed arrangement of matrimonial property law is assessed according to the legal order that was decisive for the proprietary relations of the spouses at the time when the arrangement occurred.”
“In this situation, it is not a choice of the applicable law of another state, but a choice of one of the alternative forms of matrimonial proprietary relations provided by the legal order of the state whose law is decisive. For the agreed arrangement of matrimonial property law, Section 21 para. 2 ZMPSaP introduces a temporal stabilisation of the applicable law. The agreed arrangement of matrimonial property law is assessed according to the legal order that was decisive for the proprietary relations of the spouses at the time when the arrangement occurred. A later change in the nationality of the spouses will not affect the law applicable to the agreed arrangement of matrimonial property law.” (Source: CSACH, Kristián, et al. Fundamentals of Private International Law and Procedure. Trnava: Trnava University in Trnava, Faculty of Law).
How to Use a Foreign Judgment on BSM Settlement in Slovakia?
Pursuant to Section 52 of the ZMPS Act: “Documents issued by courts and authorities abroad, which are valid in the place where they were issued as public documents, have the evidentiary power of public documents also in the Slovak Republic, if they are provided with the prescribed verifications.”
The condition, however, is that they must be provided with the prescribed verification – most often in the form of:
- an apostille under the Hague Convention of 1961, or
- superlegalisation (in the case of states that are not parties to the Hague Convention)
(Source: LYSINA, M. et al. Act on Private International Law and Procedure: Commentary. 1st ed. Prague: C.H. Beck, 2012.)
If a Slovak court decides on the settlement of BSM that includes real estate abroad, a problem may arise with the recognition of this decision abroad. Although a Slovak court can decide on real estate abroad, this does not automatically mean that the decision will be recognised and enforced abroad.
In the event that the Slovak court does not have jurisdiction over the entire property (for example, when part of the property is located abroad), it may only decide on an insignificant part of the property, while terminating the proceedings in the part concerning foreign property.
If BSM were to be settled in Slovakia, but most of the property is abroad, this could lead to a situation where the Slovak court decides only on insignificant property located in the territory of the Slovak Republic (for example, real estate that is in Slovakia), but property abroad will not be directly affected by the court in the SR. In this case, it will be necessary to seek a legal solution abroad, such as initiating proceedings in the relevant state or requesting the recognition of the Slovak court’s decision abroad, which can be time-consuming and legally complicated.
