Family and Divorce Law
Divorce
Divorce proceedings are divided into divorce by agreement and contested divorce. For marriages lasting more than one year, the court may grant a divorce by agreement when one spouse requests a divorce and the other accepts, or when a divorce settlement is submitted to the court.
A divorce by agreement may be filed at any courthouse. The parties' places of residence are not determinative for territorial jurisdiction in such proceedings.
A contested divorce arises when the spouses cannot agree on at least one of the principal issues: divorce itself, custody, compensation or maintenance. They present their claims, requests and defences before the family court.
The following courts have territorial jurisdiction for contested divorce:
- The family court at the defendant's place of residence.
- The family court at the claimant's place of residence.
- The family court where the spouses have lived together for the preceding six months.
Guardianship
Guardianship is a legal institution intended to protect and represent minors who are not under parental custody and people who, for various reasons, are unable to manage themselves or their property.
The circumstances requiring guardianship are regulated in Articles 404–410 of the Civil Code. Minority and legal restriction are the two principal grounds described.
The competent court in guardianship proceedings is the civil court of peace at the place of residence of the person subject to restriction.
The guardianship authority, the civil court of peace at that person's place of residence, appoints an adult capable of performing the role. Where necessary, it may appoint more than one guardian to act jointly or separately within the powers assigned to them.
Matrimonial Property Regimes
The Civil Code provides for four types of matrimonial property regime:
- Participation in acquired property.
- Separation of property.
- Separation of property with sharing.
- Community of property.
After the divorce judgment becomes final, property acquired during the marriage is divided in property division proceedings according to the regime applicable to the spouses.
The law does not set a specific limitation period for property division proceedings, but Court of Cassation decisions have accepted a period of ten years. Proceedings to divide the economic gains of marriage should be brought within ten years after the divorce is concluded. Family courts have subject-matter jurisdiction over property division between spouses following divorce.
Custody
Custody comprises the duties imposed on parents by law to care for and represent minors, and in some cases adult children under legal restriction, in relation to both their persons and their property, together with the rights granted to enable parents to fulfil those duties.
Custody serves to protect the interests of children who have not reached adulthood and, in some cases, adults who are subject to legal restriction.
In the event of divorce or separation, the judge determines custody of a child of the marriage. The parent awarded custody exercises the relevant parental rights. If one parent dies, custody belongs to the surviving parent. Where the parents have not been legally married, custody belongs to the mother.
Joint custody may also continue after divorce or separation by judicial decision. The judge may order joint custody at the parties' request and in the child's best interests. In a divorce by agreement, the judge may decide accordingly where both parents wish to share custody. Under joint custody, the child's care, supervision, education and development continue to be managed by both parents as if a valid marriage remained in place.