GREEK DIVORCE LAW
From the European Commission
1. What are the conditions for obtaining a divorce?
Divorce requires a court decision that is no longer open to appeal. Proceedings are of two kinds:
(a) In a divorce by consent, the spouses agree to dissolve the marriage between them, and make a joint petition to the single-judge court of first instance of the place. There is no litigation, the procedure being that followed in non-contentious cases. The couple must have been married one year or longer.
(b) In a contested divorce, one of the spouses brings an action seeking dissolution of the marriage, on stated grounds, before the multi-member court of first instance of the place, or both spouses bring such actions separately.
2. What are the grounds for divorce?
Apart from the case of a divorce by consent, the grounds for divorce are as follows.
(a) There is a breakdown of the marital relationship, caused by the respondent or by both spouses, such that there is good reason to believe that the continuation of the marital relationship would be intolerable to the applicant. There is a presumption of breakdown, which the respondent may seek to rebut, in cases of bigamy, adultery, desertion of the applicant, or an attempt on the applicants life by the respondent. If the spouses have been separated continuously for at least four years there is an irrebuttable presumption of breakdown, and divorce may be sought even if the breakdown was caused by the applicant.
(b) If one of the spouses is declared missing or presumed dead, the other may petition for divorce.
3. What are the consequences of a divorce as regards:
(a) the personal relations between the spouses?
When a marriage is dissolved by divorce, the spouses are no longer under an obligation to live together and to take decisions jointly. Spouses who have adopted their spouses surname generally resume their own, unless they wish to retain their spouses name on the ground that they have acquired a professional or artistic reputation under that name. All responsibility of spouses for the fulfilment of their mutual obligations comes to an end. Bigamy disappears as an impediment to marriage. During the marriage, time-limits were suspended in the case of claims made by one spouse against the other; this suspension now ends. The divorce does not put an end to the relationship by marriage between blood relations of one spouse and blood relations of the other.
(b) the division of property of the spouses?
In a divorce, each of the spouses is entitled to recover the movable property which belongs to him or her, or which is presumed to belong to him or her even if it has actually been used by both spouses or only by the other spouse, provided the other spouse does not rebut the presumption; this is so even if the item might be considered necessary to the other spouse. If a spouse in possession of an item refuses to hand it over to its owner, the owner may bring an action in rem, an action for possession, or an action invoking the law of obligations. After dissolution of the marriage a spouse who is the owner of the family home may bring an action in rem or an action under the law of obligations against a spouse who is making use of the home. Joint ownership is ended by the divorce, and each of the spouses receives what he or she is entitled to under the rules on joint ownership and the distribution of common property. Where an item of property was acquired by one of the spouses during the marriage, the other spouse has a claim to a share in it.
(c) the minor children of the spouses?
When a marriage is dissolved by divorce, the court can settle the exercise of parental responsibility in one of the following ways:
(1) it may assign parental responsibility to one of the parents;
(2) it may assign parental responsibility to both parents jointly;
(3) it may apportion parental responsibility between the parents; or
(4) it may assign parental responsibility to a third party.
Divorced parents continue to be under an obligation to support children who are minors and who have no income from work of their own or from their own property, or whose own income is not sufficient to maintain them.
(d) the obligation to pay maintenance to the other spouse?
When a marriage is dissolved by divorce, a former spouse who cannot maintain himself or herself from his or her own income or property is entitled to claim maintenance from the other:
(1) if at the time the divorce is pronounced the age or state of health of the spouse making the claim is such that he or she cannot be required to take up or continue to carry on a suitable occupation in order to support himself or herself;
(2) if the spouse making the claim has care of a minor, and is thereby prevented from carrying on a suitable occupation;
(3) if the spouse making the claim cannot find an appropriate regular employment, or needs vocational training; in either of these cases the entitlement lasts no more than three years from the time the divorce is pronounced; or
(4) in any other case where the award of maintenance at the time the divorce is pronounced is necessary on equitable grounds.
Maintenance may be denied or restricted for important reasons, especially if the marriage has lasted a short time, or if the spouse who might be entitled to maintenance is to blame for the divorce or has voluntarily brought about his or her own poverty. Entitlement to maintenance comes to an end if the person entitled remarries, or cohabits, or dies.
4. What does the legal term legal separation mean in practical terms?
In practice separation means that although there has been no divorce the spouses are not living together as man and wife. Under Greek law separation is a ground for divorce by reason of breakdown.
5. What are the conditions for legal separation?
Either the spouses live apart and do not intend any longer to live together as man and wife; or, although they live under one roof, one of them at least wishes to abstain from living together as man and wife and to cease acting as a member of the couple, breaking off the spiritual bonds that until that time connected the spouses, so that there is an estrangement between them.
6. What are the legal consequences of legal separation?
If the spouses cease to live together as man and wife, and there is urgency or imminent danger, either spouse may apply to the single-member court of first instance of the place for an injunction determining the use of the family home, ordering the other spouse to leave the family home, designating the movable property that that spouse may take to his or her new dwelling, provisionally determining which of the spouses is to have parental responsibility for any minor children and how such children are to communicate with the other parent, and provisionally determining who is to support any minor children, any adult children who require support, or a spouse who is unable to support himself or herself from his or her own work or property. A full court judgment deciding the same questions may also be sought by either spouse by means of an action brought before the same court under Article 681B of the Code of Civil Procedure.
7. What does the term marriage annulment mean in practice?
Annulment of a marriage means that by reason of some irregularity a marriage which had full legal effect is annulled by court judgment and thereby ceases to have any effect, save only that any children born in the annulled marriage continue to be considered children born in wedlock.
8. What are the conditions for marriage annulment?
A marriage may be annulled on the ground that one of the positive requirements for marriage was not met, or that there was some absolute impediment, or that it is voidable by reason of mistake or duress.
A positive requirement is said to be lacking if the couples declarations are not made in person, or are conditional or subject to a time-limit; if the spouses are minors, and the marriage has not been authorised by the courts; if either of them is judicially deprived of legal capacity; if either of them has a court-appointed guardian who does not consent to the marriage, and no authorisation has been obtained from the court; or if either of them at the time of the celebration of the marriage is not aware of what he or she is doing or is deprived of the use of reason owing to mental illness. There is an absolute impediment if the spouses are blood relations in the direct ascending or descending line, without limitation of degree, or collaterally, within the fourth degree; if they are relations by marriage in the direct ascending or descending line, without limitation of degree, or collaterally, within the third degree; or in case of bigamy or adoption.
Nullity is remedied after the marriage: if the spouses consent to the marriage fully and freely; if minors are subsequently given the authorisation of the court; if a minor reaches the age of 18 and acknowledges the marriage; if a disqualified spouse thereafter becomes qualified and acknowledges the marriage; if the guardian, or the court, or the person who was under the guardianship of the court, being now qualified, acknowledges the marriage; or if a person who acted in consequence of mistake or duress acknowledges the marriage after the mistake or duress has ended. There is no marriage if no declaration of marriage has been made before the mayor and witnesses, in the case of a civil wedding, or in the case of a religious wedding if the marriage has not been solemnised before a priest of the Eastern Orthodox Church or before a minister of another denomination or faith known in Greece. In that event the marriage has no legal effect, and an action seeking a declaration of its non-existence may be brought by anyone with a legal interest in the matter.
9. What are the legal consequences of marriage annulment?
In principle the effects of the marriage are nullified retrospectively. This applies to all personal, family and property relations between the spouses. Thus the nullity of the marriage removes the spouses right to inherit from one another on an intestacy, and does so from the outset. It also nullifies all legal transactions between the spouses and third parties that were entered into in their capacity as a married couple, either on the basis of the needs of their life together as man and wife or for purposes of the management of the other spouses property, subject however to the good faith of third parties who had dealings with the couple. The rules that govern movable property and goods acquired by either of the spouses during the marriage also apply in the case of annulment. If at the time the marriage was celebrated the spouses or either of them were unaware of the nullity, the nullity operates with respect to them only for the future; a spouse who at the time the marriage was celebrated was unaware of the nullity is entitled to maintenance from the other spouse if the other spouse was aware of the nullity from the beginning, and from the other spouses successors if the other spouse should die after the annulment of the marriage, subject to the same rules as divorce, which apply by analogy. The same entitlement to maintenance is also enjoyed by a spouse who was coerced into marriage by threats, or contrary to law, or contrary to accepted morals, if the marriage is annulled or ends with the death of the other spouse.
10. Are there alternative non-judicial means for solving issues relating to the divorce without going to court?
11. Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?
The multi-member court of first instance has jurisdiction to dissolve marriages by divorce on grounds of breakdown caused by one or both spouses, or on the ground that one spouse is missing presumed dead, to annul a void or voidable marriage, or to declare that no marriage exists; the procedure is that for matrimonial matters.
In cases of divorce by consent the appropriate court is the single-member court of first instance, and the procedure followed is that for non-contentious cases. The court with territorial jurisdiction is the court of the place where the spouses are habitually resident; or the place where they were last habitually resident, in so far as one of them still resides there; or the place where the respondent is habitually resident; or in the event of a joint application, the place where either of the spouses is habitually resident; or the place where the applicant is habitually resident, if he or she has resided there for at least a year immediately before the application was made, or for at least six months if he or she is a Greek national (or both spouses being of Greek nationality). Any cross action will be heard by the same court. Actions seeking maintenance may be joined to actions for divorce, annulment or recognition of the non-existence of a marriage, and will then be judged together with them by the multi-member court of first instance of the place, following the procedure for matrimonial matters and subject to the limitations imposed by that procedure. Actions seeking a determination of parental responsibility and of arrangements for communication may also be joined to an application for divorce brought before the single-member court of first instance, in which case they will be judged in accordance with the procedure followed in non-contentious cases.
The application should be lodged with the secretariat of the court; the secretary will set a date for the hearing and enter it on the copies of the application. The applicants lawyer will instruct the court bailiff to serve a copy with the date of the hearing and a summons to appear at the time and place appointed by the court. The bailiff will serve the copy of the application on the respondent. The bailiff must serve the copy of the application within 60 days if the respondent is domiciled or resident in Greece, and within 90 days if the respondent is domiciled or resident abroad or if the respondents address is not known. If service has to be made abroad to a person whose address is known, the rules to be applied, by analogy, are those in either Regulation No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, or the Hague Convention of 15 November 1965, if it applies, or bilateral or multilateral treaties.
The substantive law applicable to the personal property relations of the spouses, to divorce and to legal separation is as follows, in order of precedence:
(a) the law of their last common nationality during the marriage, provided that at least one of them still holds it;
(b) the law of their last joint habitual residence during the marriage; or
(c) the law with which they have the strongest links.
Relations between parents and a child are regulated by the following, in order of precedence:
(a) the law of their last common nationality;
(b) the law of their last joint habitual residence; or
(c) the law of the nationality of the child; if the child has both Greek and foreign nationality, the law applied is that of Greece, and if the child has more than one foreign nationality the law applied is the law of the state with which the child has the strongest links.
In accordance with the principle of the lex fori, the procedural law applicable is Greek procedural law, but this is overridden by European Community law and by other international treaties in accordance with Article 28 of the Greek Constitution. The lawyers representing the parties must be given special powers of attorney, and must be present in court with the party represented. The marriage certificate, certificate of marital status and other documentary evidence must be produced in court. Witnesses are examined and submissions made in open court. In the case of a divorce by consent, the parties must declare that they wish to dissolve the marriage between them at two sittings no less than six months apart, and an agreement must be lodged with the court indicating what arrangements they propose for the care of their children and for communication with them. The statements of the parties are assessed freely: oaths, the questioning of the parties children as witnesses, and the fact that witnesses and experts do not take an oath are not admissible in evidence. The court hearing an action for divorce tries to reconcile the parties. The fact that the respondent fails to appear does not affect the judgment of the case. If one of the parties dies while the judgment is still open to appeal, the lawsuit fails. In the case of an application for annulment of a marriage, which may also be brought by the public prosecutor, the public prosecutor will be asked to make submissions. If a party dies, the proceedings are suspended, and may be resumed by that partys successors. If an action for annulment of a marriage or for recognition of the non-existence of a marriage is brought by the public prosecutor, it is directed against both parties, and if either of them has died against that partys successors.
12. Can I obtain legal aid to cover the costs of the procedure?
Yes, on certain conditions. In particular, legal aid is available if it is shown that a party cannot afford to pay for the expenses of the trial without limiting the means necessary for the maintenance of that party and his or her family, provided the action is not found to be manifestly unjustified or inadvisable. Applications have to be made to the judge before whom the case is pending, or before whom it is to be brought; in the case of the multi-member court of first instance the application is made to the president of the court, and in matters unrelated to a trial the application is made to the local magistrate of the applicants place of residence.
The application should summarise the subject-matter of the proceedings, the evidence that will be produced in the main action, and the evidence confirming that the conditions for legal aid are met. A number of supporting documents should be attached:
(a) a certificate issued (free of charge) by the mayor or chairman of the village council of the applicants domicile or permanent residence, stating the applicants occupational, financial and family situation;
(b) a certificate issued (free of charge) by the tax inspector of the applicants domicile or permanent residence, stating that in the last three years the applicant submitted an income tax declaration, or a declaration for any other direct tax, and that after examination the declaration was approved; and
(c) in the case of a foreign national, a certificate issued (free of charge) by the Greek Ministry of Justice, stating that the foreign country extends similar treatment to Greek nationals.
The court decides on the application, free of charge, after summoning the respondent. The presence of lawyers is not necessary. If the court finds it probable that the conditions referred to above are satisfied, it grants the benefit of legal aid. This has to be done for each lawsuit separately. It applies to that lawsuit through any levels of appeal, and also covers the enforcement of the final judgment. A party whose entitlement to legal aid has been recognised in this way is provisionally exempted from the obligation to pay the expenses of the court and the costs of the proceedings in general, i.e. notaries and bailiffs fees, witnesses expenses, and the fees of experts, lawyers and any other representatives, and from the obligation to provide security for such expenses. Provisional exemption may also be granted for only a part of the expenses.
Legal aid does not affect the obligation to pay any costs awarded to the adverse party. If requested by the applicant the court may in the legal aid decision or thereafter designate a lawyer, notary or bailiff to assist the aided person; they are obliged to accept the instruction, and the decision serves as power of attorney.
The benefit of legal aid comes to an end upon the death of the person entitled, but acts that cannot be deferred may be done thereafter under the instructions given previously. In addition, legal aid may be withdrawn or restricted by the court of its own motion, or on a proposal from the public prosecutor, if it is shown that the conditions for granting it were never satisfied, or no longer apply, or have been changed. Payment of costs is governed by Articles 190 to 193 of the Code of Civil Procedure.
Thus if the judgment awards costs against the aided persons adversary, the costs owed to the aided person, his or her lawyers or other legal representatives or officers of the court are awarded to the people concerned, and are collected in accordance with the procedures for enforcement. In the same way costs awarded against the aided person are collected as soon as any of the conditions for the provision of legal aid have come to an end and this has been confirmed. If the parties secured legal aid by means of false declarations or false information, the judge who decides to withdraw the benefit of legal aid will impose a financial penalty, which is paid into the legal professionals fund; this does not put an end to their obligation to pay the sums from which they were exempted, nor does it prevent any criminal prosecution.
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?
Yes. The unsuccessful party may lodge an appeal, before the court of appeal of the place, against a judgment relating to divorce, or annulment of a void or voidable marriage, or recognition of the non-existence of a marriage, within thirty days of the date on which the judgment is served if he or she is domiciled or habitually resident in Greece, or within sixty days if he or she is domiciled or habitually resident abroad or if his or her residence is not known; and if the judgment has not been served, within three years of its publication. If the party entitled to appeal has died, the time-limit for appeal begins to run on the date on which the judgment is served on his or her universal successors or legatees.
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State country recognised in Greece?
Council Regulation No 1347/2000 lays down the principle that decisions taken in one EU Member State are to be recognised in the other Member States, without any special procedure being necessary. Anyone who wants to have a decision on divorce, legal separation or marriage annulment recognised in Greece should apply to the single-member court of first instance either of the place of habitual residence of the person against whom the judgment is to be enforced or of the place of enforcement. The following should be attached to the application:
(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
(b) a certificate of the kind provided for in Article 33 of the Regulation, giving details of the court that delivered the judgment and particulars of the marriage between the parties to the action before it, and stating whether the judgment was delivered in default of appearance or with both parties present, whether the judgment is subject to further appeal, whether legal aid was granted, etc.; and
(c) in the case of a judgment given in default, the original or a certified true copy of the document which establishes that the defaulting party was served with the document instituting proceedings or with an equivalent document, or any document indicating that the defendant has accepted the judgment unequivocally.
A date is set for the hearing, and a copy of the application has then to be served on the other party with the document setting the date and a summons to appear at the hearing. The court may not review the jurisdiction of the court that delivered the judgment. It considers whether recognising the decision would be contrary to its own public policy, whether the document instituting proceedings was served on a defaulting party in sufficient time to enable the respondent to defend himself or herself, or failing that whether the respondent has accepted the judgment unequivocally; and whether the judgment is irreconcilable with an earlier judgment given in proceedings between the same parties in the Member State in which recognition is sought, or in another Member State, or in a non-member state, which fulfils the conditions necessary for its recognition in the Member State in which recognition is sought. If the court is satisfied, it recognises the judgment.
15. To which court should I turn in Greece to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?
To challenge a Greek decision recognising a judgment delivered by a court in another EU Member State, the appropriate court is the court of appeal that hears appeals against decisions of the relevant lower court. The time-limit for appeals is one month from the date of service of the decision, except where the party against whom recognition is sought is habitually resident in a Member State other than that in which the declaration of enforceability was given, in which case the time for appealing is two months from the date of service of the decision. This time-limit cannot be extended on account of distance. If the party against whom recognition is sought fails to appear, the court must stay the proceedings so that it can be ascertained that that party has been properly summoned in due time, or that all feasible steps have been taken to this end. The decision of the court of appeal may be challenged on points of law before the Supreme Court (Areios Pagos).
16. Which is the applicable law in a divorce proceeding between spouses who do not live in Greece or who are of different nationalities?
The substantive law applicable to divorce is as follows, in order of precedence:
(a) the law of the parties last common nationality, provided one of them still holds it;
(b) the law of the parties last common habitual residence during the marriage; or
(c) the law with which the spouses have the strongest links.
The procedural law applicable, in accordance with the principle of the lex fori, is Greek law and Community law, which under Article 28 of the Constitution has primacy over national law.