Bulgarian law recognises the following ways of terminating marriage through divorce:
In a divorce by mutual consent, the two spouses make a joint petition to the district court (rayonen sad), by which they submit the agreement under Article 50 of the Family Code. In this agreement, the spouses must settle matters concerning the residence of the children, the exercise of parental rights, access to and maintenance of the children, the division of property, the use of the family home, maintenance between the spouses and the family name. The settlement has to be endorsed by the court after it has verified whether the children’s interests are protected. If the court determines that the agreement is deficient or the children’s interests are not properly protected, the court will allow time for the remedy of these defects. If the defects are not remedied within the time limit allowed, the court will dismiss the divorce petition.
In the case of divorce by petition on the grounds of a serious and irretrievable breakdown in the marriage, the petition is lodged by one of the spouses. The petition is examined by the district court (rayonen sad) with jurisdiction over the respondent's place of residence. The court is required to rule of its own motion on the issue of fault for the breakdown of the marriage and on the exercise of parental rights, access to and maintenance of the children born of the marriage, the division of property, the use of the family home, maintenance between the spouses and the use of the husband's surname. These rules apply if the parties have not concluded a nuptial agreement which settles the above-mentioned relations in the event of divorce.
In the case of divorce by petition, the spouses may declare that they have reached a settlement in which they are bound to agree on the matters concerning the exercise of parental rights, access to and maintenance of the children born of the marriage, the division of property, the use of the family home, maintenance between the spouses and the use of the husband’s surname. The court will rule on the matter of fault only if expressly requested to do so by a party or the parties to the case, but is nevertheless required to establish that there are grounds for terminating the marriage, namely a serious and irretrievable breakdown.
For divorce by mutual consent:
The basis for granting a divorce by mutual consent is the declaration by the spouses of their solemn and unwavering mutual consent to the termination of the marriage. The court does not examine the spouses’ motives for terminating the marriage.
For divorce by petition:
The basis for granting a divorce by petition is the serious and irretrievable breakdown of the marriage. There is no legal definition of ‘serious and irretrievable breakdown of the marriage’. According to legal theory and the interpretative case-law of the Supreme Court of Cassation (Varhoven kasatsionen sad), a serious and irretrievable breakdown of the marriage applies where the marriage bond exists formally but is totally devoid of the substance dictated by public morality and the law. A serious and irretrievable breakdown of the marriage is an objective state that has to be established on a case-by-case basis. All means of proof, including oral evidence, are admissible. The law does not lay down absolute preconditions for a serious and irretrievable breakdown of the marriage. The case-law accepts, although the list is not exhaustive, adultery, a prolonged de facto separation, alcohol abuse and abuse of other intoxicating substances, physical and mental cruelty and persistent neglect of the family. The new Family Code no longer requires the court to rule of its own motion on matters concerning fault for the breakdown of the marriage, with the exception of cases in which the party or parties have expressly requested a ruling on this matter. Nevertheless, in the absence of an agreement, the matter of fault remains decisive for a ruling on matters concerning the exercise of parental rights, access to and maintenance of the children born of the marriage, and use of the family home.
After the divorce, the court may restore the premarital surname of one of the spouses.
The new Family Code lays down several possible property regimes between the spouses during the marriage: statutory matrimonial property regime; statutory separate property regime; and contractual regime.
1. The matrimonial property regime is the indivisible joint ownership of all assets, including cash deposits, acquired during the marriage. These assets are jointly owned by both spouses, regardless of whose name they were acquired under, if acquired by means of a joint contribution by both spouses. The joint contribution of the spouses may take the form of the investment of funds and labour, childcare and housework. Joint contribution is presumed subject to proof to the contrary.
Each spouse's personal property consists of assets acquired before the marriage and inheritances and gifts acquired during the marriage. Chattels (movable property) acquired by a spouse during the marriage for his or her normal personal use or the exercise of his or her profession are personal property.
Following the divorce, matrimonial property is transformed into normal property.
2. Separate property regime:
The rights acquired by each of the spouses during the marriage are held personally by that spouse, but upon termination of the marriage by petition each spouse is entitled to obtain a portion of the value of the rights acquired by the other spouse during the marriage, to the extent that the claiming spouse contributed by labour, by his or her financial means, by taking care of the children, by housework or otherwise. The expense of meeting family needs is borne by both spouses; the spouses incur shared liability for obligations assumed for ongoing family needs.
3. Contractual regime;
Under the new Family Code, spouses may conclude a nuptial agreement, an option that is new to Bulgarian law. A nuptial agreement may be concluded by spouses either before or during their marriage. The nuptial agreement is limited to stipulations regarding the division of property between the parties, such as: the parties’ rights to the property acquired during the marriage; the parties’ rights to the property they owned before the marriage; the manner in which the property, including the family home, is managed and disposed of; the sharing of expenses and obligations by the parties; the property-related consequences in the event of divorce; the spouses’ maintenance during the marriage and in the event of divorce; the maintenance of the children born of the marriage. A stipulation transforming any premarital property of one of the parties into matrimonial community property is inadmissible. A nuptial agreement may not contain provisions on pre-death arrangements, except with regard to the spouses’ shares in agreed matrimonial community property upon dissolution. The statutory matrimonial property regime applies to any property relations which are not settled by the nuptial agreement.
Regardless of the regime chosen by the spouses, the general regime applies to disposal of the family home, i.e. when the family home constitutes personal property of one of the spouses, disposal requires the consent of the other spouse unless the two spouses own another home which is co-owned or personally owned by each one of them. In the absence of consent, disposal can take place with the authorisation of the district judge if it is established that the disposal is not detrimental to the children who have not reached the age of majority and to the family. When a divorce is granted, if the family home cannot be used separately by the two spouses, the court will award its use to one of them if he or she has requested this and has a housing need. Where there are children born of the marriage who have yet to reach the age of majority, the court will rule of its own motion on the use of the family home, and may award such use to the spouse who has been awarded the exercise of parental rights, for as long as he or she exercises them.
After the divorce, the former spouses cease to be one another’s legal heirs and forfeit all benefits under pre-death arrangements. After the divorce, gifts of property of significant value made in relation to or during the marriage by one spouse or their close relatives to the other spouse may be revoked, save where this is contrary to public morality. The petition to revoke the gift may be lodged up to one year after the divorce is granted.
The statutory matrimonial property regime applies where the persons entering into marriage have not chosen a regime for their property relations and if they are minors or persons with limited legal capacity. The property regime is recorded in a Spousal Property Relations Register. The property regime may be modified during the marriage. The modification is noted in the record of civil marriage and in the register. Nuptial agreements and the applicable statutory property regime are recorded in a central electronic register with the Registry Agency. The register is publicly accessible. When one or both spouses engage(s) in a transaction with a third party, where a property regime is not recorded in the register, the statutory matrimonial property regime applies.
The accepted legal term in Bulgarian legislation is ‘exercise of parental rights’.
In its decision to grant a divorce dissolving the marriage, the court is required to rule on issues relating to the exercise of parental rights, access to and maintenance of the children born of the marriage, and the use of the family home. When doing so, it takes account of the interests of the children. The court decides which of the spouses is to exercise parental rights, laying down measures concerning the exercise of those rights, contacts between the children and the parents and the maintenance of the children. When determining which parent will exercise parental rights, the court assesses all the circumstances pertaining to the interests of the children, hearing the parents and, if they are over ten years of age, the children.
Under Article 83 of the Family Code, maintenance is granted only to a spouse not at fault for the divorce. Maintenance is payable for no more than three years after the termination of the marriage, unless the parties have agreed a longer period. The court may extend these periods if the former spouse receiving the maintenance is in particular hardship and the other spouse can pay the maintenance without particular difficulty. A former spouse’s right to maintenance is terminated on remarriage. In practice, cases in which ex-spouses are awarded or ordered to pay maintenance are extremely rare.
The concept of legal separation does not exist in current Bulgarian legislation.
In case-law, de facto separation simply means that the spouses are neither living together nor sharing a household. It does not have the same meaning as ‘legal separation’.
Annulment is one of the means afforded by Bulgarian law for terminating a marriage. The annulled marriage has all the legal consequences of a valid marriage prior to its termination by judicial procedure. A marriage may be annulled only by judicial procedure: the marriage's nullity may not be relied upon until it has been ordered by the court.
For a marriage to be annulled, one of the spouses must:
Depending on the defect of the marriage, the petition for its annulment may be lodged by the spouse affected by the defect; it may also be lodged by the prosecutor, by the spouse from the first marriage, or by the public prosecutor and the spouse. Article 97 of the Family Code expressly and exhaustively lists the persons empowered to bring an action for annulment and the time limits for doing so.
The consequences of annulment of the marriage are identical to those of divorce for the personal and property relations between the spouses, as well as for the relations between the spouses and their children. For the annulment of a marriage, bad faith is equivalent to fault in the case of divorce. Children conceived or born during the annulled marriage are considered to have been born in wedlock and enjoy the presumption of paternity.
The only way to terminate a marriage by divorce is by lodging a petition or application with a court.
Where the parties opt for mediation, the court proceedings are suspended.
As court of first instance, a district court (rayonen sad) has natural jurisdiction over petitions for divorce on the grounds of fault and for annulment. These courts also hear applications for divorce by mutual consent of the spouses. The petitions should be lodged with the court for the respondent's place of residence. The court is not required to check of its own motion that it has jurisdiction, but it is required to transfer the case to the competent court if the respondent submits an objection within the time limit for responding to the petition.
Judgment by default is not possible in matrimonial cases.
The parties to the case can obtain legal aid on the usual terms for the provision of legal aid. These are laid down in the Legal Aid Act (Zakon za pravnata pomosht).
A decision granting a divorce by mutual consent is not subject to appeal.
On being served with a decision on a petition for annulment or a petition for divorce, a party has two weeks in which to lodge an appeal with the provincial court. The decision on divorce becomes effective even if an appeal has been lodged against the part concerning fault.
Council Regulation (EC) No 2201/2003, as implemented by Article 621 of the Code of Civil Procedure (Grazhdanski protsesualen kodeks), applies in this case. The competent court is the provincial court exercising jurisdiction over the permanent address of the opposing party, and if the opposing party does not have a permanent address within the territory of the Republic of Bulgaria, the competent court is the court exercising jurisdiction over the place of residence of the interested party, and where the interested party does not have a place of residence within the territory of the Republic of Bulgaria, the competent court is Sofia City Court (Sofiyski gradski sad).
Council Regulation (EC) No 2201/2003, as implemented by Articles 622 and 623 of the Code of Civil Procedure, applies in this case.
The party opposing recognition of the decision may appeal against the recognition order or, as appropriate, the order granting enforcement of the decision. The order is subject to appellate review by the Sofia Court of Appeal (Sofiyski apelativen sad), whose decision in turn is subject to cassational appeal before the Supreme Court of Cassation.
The law applicable to the annulment of a marriage is that of the place in which it was contracted.
Personal relations between spouses are governed by their common domestic law. If they are of different nationalities, their relations are governed by the law of the state in which they have their common habitual residence. Failing that, their relations are governed by the law of the state with which the two spouses together have the closest ties.
Property relations between spouses are governed by the law applicable to their personal relations.
The divorce of spouses of the same foreign nationality is governed by the law of the state of which they are citizens when the petition for divorce is lodged. The divorce of spouses of different nationalities is governed by the law of the state in which they have their common habitual residence when the petition for divorce is lodged. When the spouses have no common habitual residence, Bulgarian law applies.
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