Thursday 28 December 2017

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.