Vladisavljevic Law Office
Marriage and Divorce in Serbia
photo: Marriage and Divorce in Serbia – Vladisavljevic Law Office
By Advokat Beograd
December 06, 2020
In most societies, marriage is considered a key social institution and the basis of the family. Despite the above, all societies also had to deal with the aspects of its dissolution. Divorce is one of the most common ways to end marriage, however it is still not allowed in all countries and cultures of the world. In Serbia, marriage is defined as a legally recognized and formally regulated community of life of two persons of different sexes, which is created by a voluntary declaration of will in front of a state body, and divorce is allowed. Divorce in Serbia is purely no fault, and types of divorce are uncontested (consensual) divorce and contested divorce (with lawsuit).
- The content
- Characteristics of marriage in Serbia
- Divorce in Serbia
- – Uncontested divorce -(with agreement)
- – Contested divorce – (with lawsuit)
- Representation by proxies during divorce
- Divorce of cross-border marriage
- – Jurisdiction of the court
- – Applicable law
- Consequences of divorce
Characteristics of marriage in Serbia
In the past, marriage was often perceived as something more than a physical union, as an emotional and spiritual union, as the beginning of a family and a lifelong obligation. Such a notion of marriage, especially as a lifelong obligation, is increasingly being dispelled by divorce statistics. On average in Serbia, for every three new marriages, one divorce occurs. The number of marriages in Serbia is constantly decreasing, while the number of divorces is increasing.
In Serbia, civil marriage is the only valid one, while other forms of marriage have no legal effect. Civil marriage and civil divorce were introduced throughout Serbia by the Yugoslav Divorce act from 1946. Earlier marriages and divorces in Serbia were under the jurisdiction of the Church in most parts of the country.
In Serbia, marriage is consensual, so no one can be forced to get married. Couples who do not decide on for a formal marriage, can establish a extramarital union. Such a union is equated by the Constitution of Serbia in accordance with the marital one, however, not all relevant laws mention extramarital union, thus leaving a legal gap, which can be to the detriment of persons in extramarital unions. Some differences in status are present in terms of proving the existence of an extramarital union, as well as differences in the method of determining paternity of a child born out of wedlock, etc. Unlike the marriages, the number of extramarital unions is increasing.
In Serbia, same-sex marriage is not allowed, although there is a public debate about the possibility of its introduction.It is not allowed to marry a close relative, nor to marry people under the age of 18 – the so-called child marriages, but the possibility of a court permit for marriage to persons older than 16 is exceptionally provided by law. In addition, the practice of so-called “child marriages” of informal marriages of children under 16 is present in Serbia, which is present especially among the Roma national minority, according to a UNICEF research.
At the time of marriage, each partner can take the surname of the other spouse instead of his or her own or add it to his or her surname, or may keep his/her own surname.
The law find that a marriage can only be monogamous – between two partners – a man and a woman. While polygamous marriages are not allowed. The conclusion of several marriages at the same time or the conclusion of a new marriage while the previous one has not yet ended is prohibited and is a criminal offense of bigamy. The criminal code prescribes the possibility of imposing a prison sentence of up to 2 years for this crime.
Marriage in Serbia can end in several ways:
- By annulling the marriage
- Death of a spouse
- By declaring a missing person dead
Divorce in Serbia
A valid civil marriage in Serbia can be divorced only in a court proceeding. Unlike many other countries where there must be a fault of one of the spouses for a divorce to occur (such as adultery, etc.), this is not the case in Serbia. According to provisions of Family act of Serbia, sufficient reason for divorce is the existence of a simple fact of termination of the marital union or the existence of a serious and permanent disruption of marital relations.
Having in mind the above, the grounds for divorce in Serbia are:
- Serious and permanent disruption of marital relations
- Cessation of living together
On the other hand, if the spouses want to end the marriage voluntarily, no additional grounds for divorce are required. So the divorce process can be initiated in two ways:
- Uncontested divorce – Spousal agreement
- Contested divorce – Divorce lawsuit
In both cases, the participation of the court is necessary in order for the divorce proceedings to be conducted.
Both in the case of contested divorce and in the case of uncontested divorce, the following issues must be determined during the proceedings: exercise of parental rights, a model of maintaining the personal contact of the child and the other parent, as well as determining the amount of child support – alimony. The agreement on the manner of division of joint property must be included in the divorce agreement in case of uncontested divorce. In case of contested divorce initiated by a lawsuit, the division of property will be discussed in a special procedure.
Further in this paper, we will deal with: features of contested and uncontested divorce, characteristics of representation by a proxy in divorce proceedings and divorce of cross-border marriages, while we will not discuss other ways of terminating the marriage.
Uncontested divorce (spousal agreement)
Consensual divorce implies the existence of a certain level of consent and cooperation of the spouses on important issues. In order for it to happen, it is necessary for the spouses to conclude a written divorce agreement with the submission of a proposal for divorce to the court that has jurisdiction over the matter. Divorce agreement must cover issues related to childcare and division of property, and to that end, additional agreements are:
- agreement on exercising parental rights (which parent will take custody of the child – one parent alone or both parents together and where the child’s residential address will be), and integral parts of this agreement are agreement on the amount of alimony and agreement on the modality of maintaining personal contact with the other parent.
- agreement on the manner of division of property between the spouses.
Such a legal solution in case of uncontested divorce is envisaged so that divorced spouses would not enter into additional disputes regarding the division of property, which procedures can be long and exhausting, and which may endanger the interests of the child. The Family act of Serbia stipulates that in deciding on divorce as well as other family issues, the court must take into account the best interests of the child in the first place. Therefore, in addition to the agreement on the amount of alimony and the manner of exercising parental rights by one or the other parent, the court re-examines that agreement as to whether it is in the best interest of the child, and if it concludes that it is not, the court may decide otherwise.
If the draft divorce agreement submitted by the spouses to the court does not contain all the necessary elements, the court will return the draft agreement to them for supplementation. If the amended proposal is not submitted to the court within the set deadline, the court will reject the proposal.
Contested divorce - Divorce lawsuit
When there is no agreement between the spouses on the need to terminate the marriage and achieve an amicable divorce, the marriage may be divorced by a lawsuit filed to the court by one spouse or his or her attorney. This procedure is more complex and time-consuming than the procedure for consensual (uncontested) divorce. It is characterized by the necessity of the existence of one of the two causes of divorce – a serious and permanent disruption of marital relations or the termination of the community of life. So, this is an objective situation where the fault/guilt of any partner for marital breakdown is not necessary. It is sufficient to have an insurmountable disruption of the marital relationship or the fact that one spouse left the joint life without the intention to return.
If the spouses have a child together, the court will regulate the issues concerning the child: parental care of the child, the amount of alimony, model of maintaining the child’s personal contacts with the other parent. The issue of division of joint property will be resolved in a separate procedure and cannot be a part of this procedure.
The lawsuit is not delivered to the other spouse in response, but is served on him with an invitation to a hearing. The court jurisdiction will be determined according to the residence of the other spouse against whom the suit is filed, or it can be the court where the spouses had their last joint residence.
Although the divorce procedure is urgent and the court is obliged to schedule the first hearing within 15 days, and the divorce procedure is conducted through two hearings, such dynamics is not always present, so the process is slower, mainly due to the burden of courts with a large number of cases.
In the divorce proceedings, the presence of the public is not allowed, which is provided for the purpose of protecting the interests of the family and children and due to the sensitivity of the issues discussed there.
The obligatory part of the contested divorce proceedings is mediation by the court or the center for social work. Mediation is a way for peaceful resolution of a spouse’s dispute with the help of a third neutral person – a mediator. The purpose of mediation is to enable the parties to try to find an alternative way to resolve the marital dispute, with less stress and without long-lasting and exhausting disputes. Mediation will not be conducted: if one of the spouses is explicitly against it; if one of the spouses is legally incapable, if one spouse is of unknown residence or one or both spouses live abroad.
The first phase of mediation is conciliation, which is carried out without the presence of a proxy – and if the first phase fails, the second phase is settlement – attempt to reach an agreement on the exercise of parental rights and the division of joint property. The presence of a proxy is allowed at this stage. If a settlement is not reached within 2 months of the failure of the conciliation, the proceedings shall be taken over by the court.
The spouse who filed the lawsuit may withdraw it until the end of the main hearing, and after that he may withdraw it until the judgment becomes final, but only with the consent of the other spouse.
In case of domestic violence, in this procedure the court may decide on partial or complete deprivation of parental rights.
In case of need, even before the verdict is passed, the spouse may request from court protection of the rights and interests. This can be achieved by proposing an interim measure. It can be used to temporary determine: child residence, plan for maintaining the child’s contact with the other parent, and the amount of alimony until the end of the divorce procedure.
The court in the divorce procedure is not limited by the request and proposals of the parties and what is disputable between them, but can also establish other facts in its assessment.
The final amount of the alimony may be determined by the court in the range of 15% to 50% of the monthly income of other parent.
The court decides on the costs of the procedure at its own discretion, and taking into account the principle of fairness.
Against a court judgment in divorce proceedings, a regular legal remedy is allowed – an appeal, while regular legal remedies are not allowed.
Representation by proxy
According to article 221 of the Family act, spouses may be represented by a proxy during the divorce proceedings or they may personally take action before the court and other bodies.
According to article 257, the attorney must have a special power of attorney for divorce, certified by the competent authority for the certification of documents of the Republic of Serbia. The power of attorney should contain statements regarding the type of lawsuit and the grounds for filing a lawsuit.
According to Article 85 of the Law on Civil Procedure, which applies accordingly, a proxy may be a lawyer, a relative (in the direct line of kinship and a sister or brother) or a representative of the authorized service. Representation by relatives for which legal education is not required has often been criticized.
If the spouses are represented by a lawyer during the divorce proceedings, each party must have a separate attorney.
As we have already said, spouses cannot be represented in the conciliation procedure by a proxy, while both proxies / lawyers can attend the settlement.
Divorce of cross-border marriages
Nowadays, there is a frequent case of marriages with a foreign person, where one spouse is a citizen of the Republic of Serbia, and the other a foreign citizen, while marriage was concluded in Serbia or abroad. In these cases, additional legal questions arise that need to be answered.
If the marriage was concluded abroad, it is not automatically valid in Serbia. It must be recognized by authorities of Serbia in order to gain validity. Although even when a marriage was concluded in Serbia, that does not necessarily mean that Serbian court will have jurisdiction over divorce proceedings, or that Serbian law will be applicable.
When it comes to divorce with a foreign element, two question are expected – the court of which country will have jurisdiction for divorce proceedings and which law will be applicable in divorce proceedings?
a) Jurisdiction of the Serbian court
The jurisdiction of the court in a marital dispute in Serbia cannot be agreed by spouses. This issue is regulated by the provisions of the Law on Resolving Conflict of Law with Regulations of other Countries. The Law stipulates that domestic courts will have jurisdiction over divorce in the following situations:
- When both spouses are Serbian citizens, Serbian court will have jurisdiction no matter the residency.
- When last joint residence of the both spouses was the Republic of Serbia and the plaintiff at the time of the lawsuit has residency in the Republic of Serbia.
- When the spouse against whom the lawsuit was filed has a permanent residence in the Republic of Serbia.
- When the plaintiff is a citizen of Serbia and has a permanent residence in Serbia
- When the plaintiff is a citizen of Serbia, and the laws of a state court that would otherwise have jurisdiction – do not allow divorce.
As we stated earlier, the basic court will have jurisdiction over the divorce, and the court will have local jurisdiction according to the place of residence of the spouses.
b) Applicable law for divorce proceedings
After the first phase of determining the jurisdiction of the domestic court, the phase of determining the applicable law follows: which state law will be applied in the divorce proceedings – domestic or foreign?
Previously, there were significantly greater differences in private international law regarding the institution of divorce, given that divorce was not allowed in many countries. Nowadays, however, the laws are much more uniform, but there are still differences in the complexity of the proceedings. The Law on Resolving Conflict of Laws in article 35, stipulates that the cumulative law of both states whose spouses are nationals (if they are of different citizenship) will apply.
Such a procedure is established by law in order to respect the legal systems of each spouse’s home country, so that they would later have no problem recognizing the verdict of Serbia, which is a foreign verdict in their country.
Serbian law is applicable in next situations: when both spouses are residents in of Serbia; when spouses are residents of different countries, but the country of their last residence was Republic of Serbia; when it is not possible to determine which country was the last country of residency of spouses or do they have residence in same country.
And if one of the spouses, in addition to the citizenship of Serbia, also has the foreign citizenship (as other spouse), then the court will apply both foreign law and the law of Serbia.
Consequences of divorce
The consequences of divorce is the fact that the marriage has ended, and the spouses can enter into new marriages. If the ex-wife gives birth to a child within 300 days of the termination of the marriage, that child will automatically have the same status as a child born in wedlock. After the divorce, the child will usually start living with only one parent, and the other parent will provide alimony. Also, may be established the obligation to support one spouse by the other if he or she becomes incapable of work and loses his or her livelihood. After the divorce, the former spouses can no longer inherit from each other. The property of the spouses acquired during the marriage will be divided into equal parts. However, if there is an agreement on its division or a prenuptial agreement, the property may be divided differently. Mutual favors are not returned to the spouse unless they are disproportionately large in relation to the value of the joint property. Ex-spouses can return their previous surname or keep the spouse’s.
The institute of marriage in Serbia has similarities with other systems in Europe, while divorce is relatively faster and less complicated. No partner guilt is needed for divorce. In Serbia you will not necessarily need to hire a divorce lawyer, while in some situations this will be advisable. Although, according to psychologists, divorce is one of the most stressful events in life, divorce does not always have to be complicated in Serbia and can end amicably.
In short, these would be the characteristics of marriage and divorce in Serbia.
Gudac-Dodić, Vera. “Brak i porodični odnosi u Srbiji u drugoj polovini 20. Veka.” Tokovi istorije 3-4 (2003): 39-52.