Saturday 22 November 2014

Recognition of a Latvian divorce in Greece

In a very recent decision, the Rethymnon 1st Instance Court recognized a divorce issued by a Latvian notary public. The Greek court applied the Brussels II bis Regulation. It is the first time a Greek court recognizes a notary divorce under the EU Regulation [Rethymnon 1st Instance Court Nr. 209/2014, unreported]

THE FACTS: The applicant is a Greek citizen living in the district of Rethymnon, Crete. He was married to a Latvian citizen in the same town in 2011. Their marriage was dissolved March 2014 in Riga, Latvia, by virtue of a notarial deed. The notary’s act was brought by the applicant before the Greek court, with the request to recognize its effects in Greece.

THE RULING: The court applied the Brussels II bis Regulation, making reference to Art. 2.1, 2.2, 2.4, Recital 21, the initial proposal submitted by the Commission [COM (1999) 220], and finally, Art. 21, 22 & 24 Brussels II bis Regulation. The main question was whether a Latvian divorce by notary public fits into the notion of a ‘decision’, in light of the fact that Greek notaries are not vested with similar powers. Viewing the matter under the principle of mutual recognition in spite of possible minor differences, the court made reference to the initial proposal of the Commission, and its dictate to allow circulation of foreign divorces issued by non-judicial authorities. As a consequence, it ruled in favor of recognition.

COMMENTS: As already stated above, this is the first decision allowing the recognition of a foreign divorce issued by a notary public under the Brussels II bis Regulation. A court in Thessaloniki recognized a Cuban divorce by notary deed nearly two years ago [of which I reported in: Anthimos, Foreign Judgments and Arbitral Awards (in Greek), Sakkoulas Publications (2014), p. 182 et seq.]. Meanwhile, Greek courts routinely recognize foreign divorces issued by administrative authorities, such as registry offices and municipalities, originating especially from ex-USSR countries.

The position adopted by Greek courts shows the liberal approach towards a free circulation of judgments, even in matters of a sensitive nature, such as those belonging to personal status. At the same time, caution is needed in regards to the finality of foreign divorces by notary. Whereas it is usually easy for a domestic judge to ascertain the foreign judgment’s finality (a certificate issued by the respective court office or a note by the foreign judge has been considered sufficient for this requirement, stipulated both under the Brussels II bis Regulation [Art. 22 c & d] and the Greek Code of Civil Procedure [Art. 323.4]), the ‘finality’ of a notarial act might cause plausible reservations to the judge in charge of the request. This is the reason why the judge handling the case at hand insisted on the production of the certificate provided for by the EU Regulation under Art. 39 & Annex I, and ascertained the finality of the notary deed under Nr. 7 of the certificate.

To sum up, the decision of the Rethymnon Court is most welcome, and should be followed in the future, bearing in mind that the solution adopted by Latvia is not a unicum within the EU [as long as I’m aware of, divorce by notary is also allowed in Estonia and Romania, and it was supposed to be introduced in Spain too, but the draft law on voluntary proceedings (which granted similar powers to notaries) was recently withdrawn].