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Features of the international family

Julian Spassov
Julian Spassov

Or what are the legal provisions in conclusion and dissolution of marriage between two people from different countries

One ticket to Paris, please, he said, and so it all began in the story of a meeting with a woman of French nationality and an apartment, overlooking the Eiffel Tower. The question, which followed, was “Will you marry me?” But what says the law about the continuation of the story.

Conditions and form of marriage with a foreigner

According to the Code of Private International Law, the conditions of marriage with a foreigner will be different for each of the intending spouses. They will be determined by the law of the country, whose citizen the person at the time of the marriage was. If we assume that the hero of our story is a Bulgarian citizen, authoritative for him will be the conditions, set out in the home Family Code, for example that he must be at least 18 years old.

If the civil marriage is concluded on the banks of the River Seine before a local authority, the form of the marriage will be regulated by the French law, since it is determined by the law of the country before whose authority it is concluded.

That is why marriage, concluded abroad is recognized in the Republic of Bulgaria, if it follows the form, established in accordance with the above mentioned rule.

Property relations between the spouses

The property relations always interfere in the family idyll. They are regulated by the law of the country, where their common habitual residence is, and when such does not exist – the law of the country with which both spouses are most closely connected. So, if the young family finds that the apartment overlooking the Eiffel Tower is the appropriate place for them to live, their property relations will be regulated by the French law. If this law however allows, the spouses can define other legislation on the property relations between them by written agreement. In this way, the spouses can choose law, which permits the conclusion of a marriage contract, if such is not provided under the law of their habitual residence.

Divorce and legal separation

We cannot assume certainly that the family happiness of the heroes of our story will last forever. In this case, assistance will come with Regulation (EU) 1259/2010 of the Council as of 20 December 2010, which introduces uniform rules for the applicable law to divorce and legal separation.

According to it, the spouses can determine the applicable law to divorce and legal separation by formal agreement, provided that it is one of the following:

  • the law of the country in which they are habitually resident at the time of the conclusion of the agreement
  • the law of the country of their last habitual residence, insofar as one spouse still resides there at the time of the conclusion of the agreement
  • the law of the country, whose citizen is one of them at the time of the conclusion of the agreement
  • the law of the seized court

The agreement can be concluded and modified at any time, but not later than the time when the court is seized.

In the event that the relationships between the spouses are deeply and irreparably upset and they appear to be unable to reach any agreement on the issue, the divorce or the legal separation will be regulated by:

  • the law of the country of their habitual residence at the time the court is seized or if this is not fulfilled,
  • the law of the country of their last habitual residence, provided that such residence has been completed not more than one year before the court was seized and if one of the spouses still lives in this country at the time the court has been seized, or if this is not fulfilled,
  • the law of the country of the court seized

This is where the question arises, which will be the competent court seizes. This time another regulation will regulate the relations between the spouses in order to help them overcome the consequences of the failed marriage.

According to Regulation (EU) 2201/2003 of the Council as of 27 November 2003 competent to hear cases, relating to divorce and legal separation, are:

  • the courts of the Member State, on which territory the spouses are habitually resident
  • or have had last habitual residence if one of them still lives there
  • or the defendant has their habitual residence
  • or in case of a joint statement of claim and either of the spouses is habitually resident
  • or the claimant is habitually resident if they have resided there for at least one year immediately preceding the lay of the claim
  • or the claimant is habitually resident, if they have lived there for at least six months immediately preceding the lay of the claim and if they are citizen of that Member State, or, in the case of the United Kingdom or Ireland, if they have citizenship (domicile) there
  • the courts of a Member State, whose citizens are both spouses, or, in the case of the United Kingdom or Ireland, where they have domicile

In the hurry to finalize the divorce, the person, whose marriage failed, should not miss the exclusive rule that against the spouse who is habitually resident in a Member State or is citizen of a Member State (the United Kingdom or Ireland – domicile) can lay a claim in another Member State only in accordance with the above mentioned rules.

Parental responsibility

The purpose of the divorce is to end the marriage relationship between the spouses, but if in one of the happy past years, the heroes of our story can have created a successor, the law has to intervene again in order to resolve the issue of the parental responsibility.

As a general legal concept it incorporates the issue of exercising the parental rights and determining the mode of personal relationships between parent and child.

The Jurisdiction on cases about parental responsibility is regulated again in Regulation (EU) 2201/2010. The general rule, with which the spouses must comply, is, that competent for all cases relating to parental responsibility are the courts of the child’s habitual residence at the time when the court’s seize. So, if the small successor has grown up along the banks of the Seine, competent to consider the issue of the parental right will be the French court.

The European legislature, obviously having realized the desire of all spouses in a similar situation to quickly resolve misunderstandings, arising from the marriage, has provided also the opportunity for joining the case on parental responsibility with a marriage claim, but in cumulative compliance with the relevant requirements:

  • at least one of the spouses has parental responsibility over the child
  • the jurisdiction of the court has been expressly or otherwise in an unequivocal manner accepted by the holders of parental responsibility
  • is in the best interest of the child

Alimony

One not so pleasant consequence of the divorce is the alimony. Regulation 4/2009 regulates both material and procedural law in issues, relating to alimony. The general rule for determining the applicable law is the habitual residence of the person to whom the alimony is owed. It is possible for the parties to choose another law, which will arrange their relations on alimony, but it is impossible to make a refusal of the right of alimony. It is of particular relevance the permission the case for alimony to be joined with the case on parental responsibility.

The article has been published in Bulgarian, in Capital Daily.