Amicable divorce… in trial!

Sometimes an amicable divorce is not as simple as it seems. This article examines the case of two French citizens who, in their attempt to divorce by mutual consent in Greece, were forced to resort to a complex legal “manoeuvre” in order to settle the property issues arising from their separation with legal certainty. At the same time, the article highlights a gap in Greek law concerning foreign citizens residing in Greece who wish to divorce by mutual consent but were not married here and therefore their marriage is not registered with the competent registry office.

According to the provisions of Article 1441 of the Civil Code, the dissolution of marriage is legally effective only upon the filing of the notarial deed of dissolution with the registry office where the marriage was registered. But what happens when there is no such registry office, and what does this mean for the system of recognition of consensual divorces within the European area under Regulation 1111/2019? Below is a brief analysis of the case, which our firm successfully handled in collaboration with the Paris law firm Cabinet Copé-Bessis & Associés.

The legal issue

According to Article 1441 of the Civil Code, the dissolution of marriage occurs upon the submission of a copy of the notarial deed to the registry office where the marriage was registered, or by informing the registry office using Information and Communication Technologies. This means that for a divorce to be legally valid, it is not enough to simply sign the deed of divorce by mutual consent before a notary public, but it must also be filed in physical or digital form with the registry office where the marriage was registered (in simple terms, the registry office where the marriage was declared).

But what happens if the marriage did not take place in Greece and neither spouse has Greek citizenship, meaning that the marriage was not registered at any Greek registry office? This case is not so unusual in practice, since the recent new forms of “residence” under Greek law, e.g. for golden visa beneficiaries, have made our country a popular place of residence for international couples who have no previous connection with our country but who, by settling here, make Greece their country of habitual residence for the purposes of Regulation 1111/2019 on matrimonial matters and matters of parental responsibility.

In the case of these couples, there is no Registry Office where the dissolution of the marriage could be filed. Nor is it possible to register the notarial deed in question at the Special Registry Office, as this office registers deeds relating to changes in the personal status of Greek citizens that take place abroad.

An initial idea for resolving the issue would be to register the deed in a foreign registry office in the spouses’ country of origin, where the marriage was registered. However, Article 1441 does not appear to have any relevant provision for foreign registries, with the result that the final question of whether or not the legal consequences of the dissolution of the marriage will occur becomes legally “uncertain.”

Furthermore, although there is no doubt that Greek notarial divorce is recognized in other Member States under the above Regulation, in this case, the possibility of issuing the certificate required for recognition under Article 66 of the Regulation, which must be issued by a notary in order for the divorce to be recognized in another Member State, is also problematic.

This certificate must state the date on which the document in question becomes legally binding, which in our case will not yet have “existed,” since in order for the document to become binding (for the legal effect of the dissolution of the marriage to take place), the document must be registered in a registry office first. One idea would be to state a later date (the date on which the document will be registered in the foreign registry office), but again, this solution is not without legal uncertainty.

Mediation under Law 4640/2019 and recourse to the courts for the dissolution of the marriage as a solution.

The dissolution of the marriage cannot be the subject of mediation. However, the subject matter of mediation, which may lead to the issuance of a relevant enforceable title, with a role equivalent to that of a notarial divorce, can be both the spouses’ property disputes and any disputes regarding the parental care of their minor children. This means that mediation under Law 4640/2019 can be an equally practical solution for the above couples, who do not seem to be able to use the provisions of the Civil Code for the consensual dissolution of their marriage.

And what about the dissolution of the marriage? In this regard, the parties may agree in the context of mediation to jointly file divorce proceedings on common historical grounds before the Court and to waive their respective rights to file separate proceedings. This is a “necessary” consensual dispute, which does not entail the problems of legal proceedings, which the parties wish to avoid, as they have in fact already settled all disputes arising from their marriage through the mediation agreement.

In conclusion

As usual, the reality of family relationships goes beyond existing legal regulations. When drafting the provisions on consensual divorce, the Greek legislator could not have foreseen the regulatory vacuum that would affect citizens with no connection to Greece, who nevertheless wish to divorce consensually in our country. Legal provisions and legal “bureaucracy” often become an inseparable “complex” in the European procedural legal order, and specialized knowledge is required in order for couples and families to be able to move forward with their new beginning with certainty and security.