Divorce in mutual consent before a notary public
Following lengthy consultations, strong
reactions and counter-reactions from the federations of Greek lawyers and
notaries, the government decided to dare a groundbreaking step in the field of
divorce law. Article 22 of law 4509/2017 introduces the right of the spouses to
dissolve their marriage through a private agreement, which should be signed by their
lawyers and certified by a notary’s act. The reform simplifies procedures and
relieves courts from a great bulk of work; however, it is a vertical reform,
omitting to tackle with conflict of laws matters, which inevitably will appear.
I.
THE NEW
LANDSCAPE
Article 22 amends two provisions of the Greek
Civil Code. In particular, Article 1438 CC, which regulates how dissolution of marriage
takes place, has been enriched by a second alternative (the first one being a
final and conclusive judgment): Dissolution is possible by an agreement of the
parties, in accordance with Article 1441 CC.
Article 1441 has been completely altered. The
previous version provided for the right of divorce in mutual consent before a
court of law in voluntary proceedings. The provision has been amended in 2012,
simplifying an already simple, however time-consuming procedure. The new
wording states the following:
Para. 1: The spouses may dissolve their marriage by
virtue of a written agreement. Each party is obliged to hire or be represented
by a lawyer. The agreement is signed either by the lawyers or both parties and
their lawyers.
Para. 2: With respect to infants, the spouses are
obliged to agree on parental responsibility, contact and maintenance rights.
The agreement shall be signed in the same fashion as regulated under Para. 1,
and is valid for at least two years.
Para. 3: The agreements aforementioned are to be
submitted by the spouses’ lawyers before a notary public. The lawyers must
furnish also their power of attorney. A notary’s act shall be recorded only 10
days after the agreement of the parties.
Para. 4: The notary drafts and issues an act,
certifying the following:
i)
The
dissolution of marriage
ii)
The
validity of the agreement(s)
iii)
The
incorporation of the latter to the act.
The act is signed again in the same fashion as
stated under Para. 1.
The agreement on child matters acquires the force
of an enforceable instrument, if the particulars regulated under Articles 950
& 951 Code of Civil Procedure have been embedded in the document. The
latter may be prolonged or renewed in the same fashion.
Para. 5: The dissolution of marriage is recognized erga
omnes upon filing a copy of the act with the Registry Office, where the marriage
has been registered.
II.
OPEN ISSUES
The intention of the legislator was undoubtedly
to regulate a matter which increased the backlog of Greek courts since the
entrance of the country into the spiral of the financial crisis. Professional
apprehension voiced by the lawyers has been calmed through the imposition of
legal representation to the spouses. Income loss of notaries due to a devastating
decrease in property sales contracts could be partially counterbalanced by
channeling divorces in mutual consent to their ambit.
However, one issue which has not been sufficiently
elaborated, is the potential cross-border element of the matter. Prima facie, the
wording of Article 1441 CC leaves space for divorce tourism. There is neither
reference to the nationality or the domicile of the parties, nor to the seat of
the notary entrusted with the formalities. The Code of Notaries does not give
any assistance, and has not been amended for the occasion, as it has been the
case in Spain (Article 54.1 Ley del Notariado), and Romania (Article 375.1 Cod
Civil): Last residence of the parties or place where the marriage was concluded
are here the connecting factors.
Beyond the above, applicable law issues may
rise to the surface, which would force notaries to examine both domestic
(Articles 14 et seq. CC) and international law (Rome III Regulation, Convention
of 2 October 1973 on the Law Applicable to Maintenance Obligations, and 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) provisions.
Finally, recognition and enforcement abroad might
be endangered, if Greek notaries follow the path of ‘anything goes’.
There is still time for an impact assessment
and eventually a horizontal intervention of the legislator, in order to fill
the gaps mentioned above. The law has been published (and is in force) only a
week ago.