Slovenian law recognises: a) divorce on the basis of an agreement between the spouses and b) divorce on the basis of an action.
a) In the case of divorce on the basis of an agreement between the spouses, the court grants a divorce under Article 64 of the Marriage and Family Relations Act (Zakon o zakonski zvezi in družinskih razmerjih, ZZZDR) provided that they have reached an understanding on the care, upbringing and subsistence of any children they may have together and on the children’s contact with the parents (where the opinion of a Social Services Centre (center za socialno delo) must be sought), and if they have submitted, in the form of an enforceable notarial record, an agreement on the division of their joint property, on which of them shall remain or become the tenant of their apartment, and on the maintenance of the spouse who has no means of subsistence and is unemployed through no fault of their own.
b) Where a marriage has for whatever reason become ‘unendurable’, either spouse may request a divorce by filing a divorce action. In this case, it is the court that also decides on the care, upbringing and subsistence of any children the spouses may have together, and their contact with the parents. Before deciding, the court is obliged to seek the opinion of a Social Services Centre.
In both cases, upon receiving a request for divorce on the basis of an agreement as well as upon receiving a divorce action, the court orders the competent Social Services Centre to conduct a counselling interview, which both spouses are obliged to attend in person without the presence of proxies. The Social Services Centre reports to the court on the outcome of the counselling interview.
The legal consequences of divorce are set out in detail below:
A person who changes their name upon marriage may, within six months of the final divorce judgement or judgement terminating the marriage, submit a declaration to the effect that they wish to revert to the surname they had prior to the marriage. This declaration may only be submitted by a person who did not further change their surname in the course of the marriage (Article 17 of the Personal Name Act (Zakon o osebnem imenu, ZOI-1)). The issue of changing a surname is an administrative matter which is decided not by a court but by an administrative body.
In the division of joint assets, the legal presumption is that the share of the spouses in the joint assets is equal; however, the spouse that considers they will be placed at a disadvantage through the division of assets into equal shares may request that their share be determined in proportion to their contribution to the joint assets. In doing so, the court takes account not only of the income of each spouse, but also other circumstances, such as the assistance that one spouse gave to another, the care and upbringing of any children, the performance of domestic work, the maintenance of assets, and any other form of work and participation in the administration, maintenance and increase in the joint assets.
CARE AND UPBRINGING OF CHILDREN
Ø In the event of a divorce on the basis of an agreement, the spouses must agree on the upbringing and care of any children, while the court assesses whether this agreement is in the interests of the children. They may agree
If the parents fail to reach an agreement on the matter themselves, a Social Services Centre shall assist them in reaching an agreement.
If the parents reach an agreement on care and upbringing, they may propose that the court issue a decision on this in a non-litigious procedure.
If they do not reach agreement or if the agreement is not in the interests of the children, the court shall not terminate the marriage on the basis of an agreement; instead, a divorce action shall be required.
If, even with the assistance of a Social Services Centre, the parents fail to agree on the upbringing and care of children, the court shall decide at the request of one or both parents as follows:
In doing so, the court must seek the opinion of a Social Services Centre prior to its decision and, when reaching a decision, consider the child’s opinion if it is expressed by the child themselves or by a person the child trusts, and who has been chosen by the child themselves, and provided the child is capable of understanding its meaning and consequences.
Ø In the event of a divorce on the basis of an action and in order to regulate relations between the divorced spouses and their joint minor children, the court shall decide on the care and upbringing of the children after establishing how the interests of the children are to be served best. In this case as well, the parents may agree on the care and upbringing of their joint children in the interests of those children. The same shall apply mutatis mutandis to the care and upbringing of children in this case as to care and upbringing in the case of a divorce reached on the basis of agreement. The decision on who minor children will live with after divorce, on their contact with the parent with whom they will not be living and on maintenance is a constituent part of the divorce judgement.
MAINTENANCE of spouses and children
A ‘cohabiting union’ (življenjska skupnost) is an essential element of a marriage (Article 3 of the Marriage and Family Relations Act). The termination of a cohabiting union (prenehanje življenjske skupnosti), or legal separation, means the permanent termination of the essential elements of the mutual relations existing between the spouses. When a cohabiting union ends, the economic union and the intimate and emotional ties between the spouses come to an end, as may the common household, etc.
The law does not specify the conditions for legal separation. Courts decide on legal separation in each individual procedure in line with the circumstances and specific features of the case in question.
Legal separation has no effect on the existence of a marriage; this means, therefore, that it is only the cohabiting union that is terminated and not the marriage. An action or a proposal to end a marriage by agreement are required to terminate a marriage. With legal separation, the spouses bring the creation of joint assets to an end. A dependent spouse may request maintenance by means of an action within one year of legal separation.
Annulment means that, at the time the marriage was entered into, the conditions required by law for a marriage to be deemed valid were not in place (e.g. there was no free will, consent was forced or given in error, the marriage was not contracted in accordance with the prescribed procedure, was contracted between close relatives, or was entered into by a severely mentally ill person or with insufficient forethought). The legal consequences of the marriage cease to have effect on the day the judgement on annulment becomes final.
Ø A marriage does not become invalid ipso iure, but must be annulled by means of a judgement.
Ø Slovenian law distinguishes between a relatively and absolutely invalid marriage. The distinction lies in the group of persons that may request a marriage annulment.
a) The reasons for relative invalidity are the following:
b) The reasons for absolute invalidity are the following: (persons entitled to file an action are, in addition to both spouses, certain other persons deriving a direct legal benefit from the annulment of the marriage, (e.g. other inheritors of a deceased spouse may, upon that spouse’s death, file an action to annul a marriage so that the living spouse loses their right of inheritance); moreover, beneficiaries may also file an action after the annulment of the marriage); an action may also be filed by a state prosecutor:
The legal consequences of marriage annulment have effect on the day the judgement on annulment becomes final. With regard to property relations between spouses, the maintenance of a dependent spouse, the returning of gifts between the spouses and the relationship of the spouses to their joint children, the legal consequences are the same for annulment as for divorce.
The Mediation in Civil and Commercial Matters Act (Zakon o mediaciji v civilnih in gospodarskih zadevah), which entered into force in June 2008, regulates mediation in disputes involving civil-law, commercial, labour-related, family and other property-law relationships in relation to claims which parties may freely assert and settle, unless a separate law provides otherwise for any of these types of dispute. A marriage itself cannot be terminated without the intervention of a court; an action or a proposal to terminate a marriage by agreement must be filed.
An extract from the marriage register and extracts from the register of birth certificates must be enclosed with the action or proposal, while a personal identity document must be presented at the hearing.
A court partly or wholly exempts a party from the payment of court fees if payment would significantly reduce the funds available for their own support or that of their family members. Foreign citizens are exempt from the payment of court fees if so determined by an international treaty or where conditions of reciprocity exist (Articles 10 and 11 of the Court Fees Act/Zakon o sodnih taksah, ZST-1).
A party may apply for legal aid to cover the costs of a lawyer and expert; the decision on whether to grant legal aid shall be made by the district court covering the area in which the applicant permanently resides. In this procedure, the court assesses the criteria (e.g. substantive, financial) with reference to the provisions of the Free Legal Aid Act (Zakon o brezplačni pravni pomoči).
An appeal against a judgement relating to divorce or marriage annulment may be made to a higher court (višje sodišče), generally within 15 days. A judgement granting a divorce on the basis of a proposal by the spouses to terminate the marriage by agreement may be contested:
A revision (extraordinary legal remedy) is not permitted in matrimonial disputes.
Under Article 21 of Regulation (EC) No 2201/2003, a judicial decision issued in another Member State is recognised without a requirement for any special recognition procedure to be initiated.
Each interested party may request that a decision on the recognition or non-recognition of a judicial decision be issued. In this case, the party must file a request for a declaration of enforceability at the competent district court in Slovenia.
The laws of Slovenia apply to the procedure of filing a request.
A party that requests or contests the recognition of a judicial decision, or files a request for a declaration of enforceability, must submit:
The provisions of Regulation (EC) No 2201/2003 (Brussels II bis) apply primarily and directly to issues of international jurisdiction involving citizens or residents of EU Member States.
If both spouses are citizens of different countries when the action is filed, the cumulative laws of the countries of which they are citizens are applied, in accordance with the provisions of Slovenian domestic law (Article 37(2) of the Private International Law and Procedure Act/Zakon o mednarodnem zasebnem pravu in postopku).
If a marriage cannot be terminated under the law of the countries of which the spouses are citizens, the law of Slovenia is applied to the termination of marriage if one of the spouses was permanently residing in Slovenia at the time the action was filed.
If one of the spouses is a citizen of Slovenia without permanent residence in Slovenia, and the marriage cannot be terminated under the law specified in Article 37(2) of the Private International Law and Procedure Act, the law of Slovenia is applied to termination.
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