Divorce of a Foreign Marriage in Slovakia

QUESTION
Good day, my wife and I entered into marriage in Germany, where we lived together for a certain period of time, but we decided to move to Slovakia so that my wife – a Slovak national – could be closer to her family. I am a German citizen. However, our marriage did not work, and we therefore plan to divorce. My question is whether our marriage can be dissolved by a Slovak court. Furthermore, I would like to know whether a Slovak court can also deal with the issue of parental responsibility for our minor son. And how is the division of our joint property handled? Thank you for your answer.

ANSWER:
Good day, we will break down your question into several parts:Divorce

1. Jurisdiction

The legislation of the European Union applies: Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (hereinafter “Brussels IIb”), Art. 1(1)(a):

“This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to: divorce, legal separation or marriage annulment.”

Pursuant to Art. 3 Brussels IIb:

“In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State—

(a) in whose territory:

– the spouses are habitually resident,
– the spouses were last habitually resident, insofar as one of them still resides there,
– the respondent is habitually resident,
– in the event of a joint application, either of the spouses is habitually resident,
– the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
– the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is a national of the Member State in question, or

(b) of the nationality of both spouses.”

It is sufficient for one of the above conditions to be met for the court to have jurisdiction in the matter. Spouses may divorce before a Slovak court. In a divorce judgment, however, the court does not settle property relations between the spouses; these are typically subject to separate court proceedings.

A complication may arise if the marriage has not been recorded in Slovakia in the Special Registry, which the court may require. However, the marriage certificate should still be accepted under Section 52 of Act No. 97/1963 Coll. on Private International Law and Procedure (hereinafter “PILP”):

“Public documents issued by courts and authorities abroad which are valid as public documents in the place where they were issued shall have the evidentiary power of public documents also in the Slovak Republic if they are furnished with the prescribed authentications.”

2. Applicable Law

Pursuant to Art. 41(2) of the Notice:

“If one of the spouses is a national of one Contracting State and the other is a national of another Contracting State, the court before which the divorce proceedings are pending shall apply its own law.”

Pursuant to Section 22(1) PILP:

“The dissolution of marriage by divorce shall be governed by the law of the State of which the spouses are nationals at the time the proceedings are instituted. If the spouses are nationals of different States, the dissolution of marriage by divorce shall be governed by Slovak law.”

Parental Responsibility for Minor Children

1. Jurisdiction

Pursuant to Art. 1(1)(b) Brussels IIb:

“This Regulation shall apply in civil matters relating to: the attribution, exercise, delegation, restriction or termination of parental responsibility.”

Pursuant to Art. 7(1) Brussels IIb:

“The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”

2. Applicable Law

Key legal instrument: Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (hereinafter “the Hague Convention”).

Article 15 of the Convention:

  • In exercising jurisdiction under the provisions of Chapter II, the authorities of the Contracting States shall apply their own law.
  • However, they may, exceptionally, apply or take into consideration the law of another State with which the situation has a substantial connection, if required by the protection of the person or property of the child.
  • If the child’s habitual residence changes to another Contracting State, the conditions for the implementation of measures taken in the State of the former habitual residence shall be governed by the law of the new habitual residence.

Article 16:

  • The attribution or extinction of parental responsibility by operation of law, without the intervention of a judicial or administrative authority, shall be governed by the law of the State of the child’s habitual residence.
  • The attribution or extinction of parental responsibility by agreement or unilateral act, without the intervention of a judicial or administrative authority, shall be governed by the law of the State of the child’s habitual residence at the time when the agreement or unilateral act takes effect.
  • Parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State.
  • If there is a change of habitual residence, the acquisition of parental responsibility by operation of law by a person who did not already have such responsibility shall be governed by the law of the new habitual residence.

Article 17:

The exercise of parental responsibility shall be governed by the law of the State of the child’s habitual residence. In the event of a change of habitual residence, its exercise shall be governed by the law of the new habitual residence.

Article 18:

Parental responsibility under Article 16 may be terminated or its exercise modified by measures taken under this Convention.

Maintenance (Child Support)

1. Jurisdiction

Pursuant to Art. 1(4)(e) Brussels IIb:

“This Regulation shall not apply to maintenance obligations.”

Pursuant to Art. 1(1) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (hereinafter “the Maintenance Regulation”):

“This Regulation shall apply to maintenance obligations arising from a family relationship, parentage, marriage or affinity.”

Art. 3(d) of the Maintenance Regulation:

“In Member States, jurisdiction in matters relating to maintenance obligations shall lie with: the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility, where the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.”

This provision also enables a court having jurisdiction in matters of parental responsibility to decide on maintenance if the issue is connected with the parental responsibility proceedings.

2. Applicable Law

Article 15 of the Maintenance Regulation (Determination of Applicable Law):

The law applicable to maintenance obligations in Member States bound by the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (hereinafter “the 2007 Hague Protocol”) shall be determined in accordance with that Protocol.

2007 Hague Protocol – Art. 3(1) (General Rule):

Unless otherwise provided in this Protocol, maintenance obligations shall be governed by the law of the State of the creditor’s habitual residence.

Division of Property

1. Jurisdiction

Pursuant to Art. 40 of the Notice:

“Jurisdiction to decide on the personal and property relations of the spouses shall be vested in the courts of the Contracting State whose law is applicable under Article 39(1), (2) and (3). Jurisdiction under Article 39(4) shall be vested in the courts of both Contracting States.”

According to Section 37 PILP:

Unless otherwise provided, the jurisdiction of Slovak courts is given if the person against whom the claim (action) is directed has domicile or seat in the territory of the Slovak Republic, and in matters of property rights, if they have property here.

If a Slovak court rules on the division, a foreign court is not obliged to recognise it and may even modify it upon recognition if the real property is located in Germany.

2. Applicable Law

Pursuant to Art. 39(1) of the Notice:

“The personal and property relations of the spouses shall be governed by the law of the Contracting State in whose territory they have their common domicile.”

Pursuant to Art. 39(3):

“If one of the spouses is a national of one Contracting State and the other a national of another Contracting State, and one of them is domiciled in one and the other in the other Contracting State, their personal and property relations shall be governed by the law of the Contracting State in whose territory they had their last common domicile.”

According to Section 21 PILP:

  1. The personal and property relations of the spouses shall be governed by the law of the State of which they are nationals. If the spouses are nationals of different States, these relations shall be governed by Slovak law.
  2. An agreed arrangement of matrimonial property law shall be assessed under the legal order which was decisive for the property relations of the spouses at the time the arrangement was made.

Section 37d(a) PILP (Exclusive Jurisdiction):

The jurisdiction of a Slovak court is exclusively given in proceedings whose subject matter is rights in rem in immovable property or the lease of immovable property if the immovable property is located in the territory of the Slovak Republic.