Does it matter who is to blame for the divorce?

When we talk about divorce in the formal sense, our clients often ask the question of the fault of one of the spouses for the divorce. Whether the fault for the divorce on the part of one of the spouses is important and whether it must exist to initiate the divorce proceedings are some of the questions that we will deal with in this text.

Divorce is often defined as a legal way of terminating a valid marriage during the lifetime of the spouses, based on the decision of the competent court, for cause and in the manner established by law. The essence is the same when divorce is viewed from the perspective of the regulations governing divorce in the law of the Republic of Serbia.

For what reasons can a divorce occur?

The Constitution of the Republic of Serbia recognizes everyone’s right to enter and dissolve a marriage, and the Family Law of the Republic of Serbia (hereinafter: “Family Law”) stipulates that a marriage can be divorced for the following reasons:

• Serious and permanently disturbed marital relations or
• If the marital life cannot be realized objectively

From the provision of the Family Law, we can see that our legislator, when determining the conditions for divorce, opted for the so-called the general character of the conditions. This means that the legislator did not go into detailing the exact reasons for divorce, but by using one general wording tried to include numerous and varied facts and life situations that could be the reason for the spouses wanting to end their marriage.

Therefore, our legal solutions for divorce do not know the individually stated reasons for which the partners could divorce, and they do not know the deadline in which the spouses are obliged to initiate the divorce procedure. In other words, each spouse has the right to divorce if the marital relationship is seriously and permanently disturbed or if the union of the spouses’ life cannot objectively be achieved.

What is the meaning of the wording that marital relations are seriously and permanently disturbed and the wording that it is objectively impossible to achieve the community of life of the spouses?

The law does not offer explanations of the mentioned wordings but leaves individuals to explain their desire for divorce to one of them.

In practice, this means that the most diverse reasons for the decision to divorce can be understood under these formulations: cessation of emotions, misunderstanding between spouses, excessive spending by one spouse, irreconcilable differences, different views on the future, different approaches to raising joint children , lack of interest in living together, lack of attraction, adultery, termination of the de facto community of life, frequent conflicts, domestic violence and all other reasons that led to broken marital relations, or none of the above, except the individual’s desire not to be married anymore.

Will the court determine the fault for divorce?

What is crucial when we talk about the issue of fault for divorce is the fact that the divorce proceedings will not determine who is at fault for any of the previously listed reasons that led to the end of the marriage.

To be even more clear what we mean when we say that fault for divorce is not important – it practically means that even the spouse who during the marriage did not act in accordance with the moral principles of the marital union, has the right to initiate proceedings for divorce. Therefore, a husband who cheats on his wife can, just like the wife, initiate proceedings for divorce, and that marriage will be dissolved in the same way as if the procedure had been initiated by the cheated wife.

In our work with family law clients, it often happens that the partner who has not yet emotionally overcome the end of the relationship insists that “his side of the story” be heard, i.e. first to the lawyer, and then to the court, to present everything that happened behind the four walls, what was the other party really like during the duration of the marriage and who is to blame for the separation. However, all this is not only irrelevant to the divorce proceedings, but no judge will listen to you talk at length about the problems that led to the divorce, but after the court proceedings (which differ depending on whether it is consensual divorce or divorce by lawsuit) to state in the judgment that the specific marriage is being divorced without going into detail about the reasons why it happened.

To conclude: the court in the divorce proceedings does not determine which of the spouses is to blame for the divorce. The court, in fact, will not go into the specific reason for the divorce, nor will it ask you about it, but will always stick to the general wording of the conditions for divorce. The only thing that matters to the court is that there is a will (desire) of one party for divorce and the absence of consent for reconciliation.

A prerequisite for a divorce to occur is to initiate the appropriate court proceedings for divorce. The procedure is initiated in two ways, by a proposal for an amicable divorce or by a lawsuit for divorce. In other words, in our legal system, as in some other legal systems, it is not possible to divorce in any other way than before the court.

If there are no mutual minor children or property between the married partners, as well as if the divorce procedure is initiated by a proposal for a consensual divorce, the court procedure for divorce is easy and relatively quick.

Fault for divorce and impact on child custody or division of assets?

Clients are often of the opinion that the fact that they were deceived during the marriage, or the other party was not fair to them (not to the children) or because they suffered some form of violence, will later be reflected in some other segments of the divorce. marriage, such as division of property or custody of minor children.

In relation to the division of property, even if in an emotional sense we can determine the culprit for the divorce, in the legal sense the guilt will not be of any importance. If your partner cheated on you or was unfair to you in any other way, and even when he was violent towards you, this does not give you a better chance to be entitled to the entire joint property or a larger part of it. In terms of property division, criteria of a completely different nature apply. You can read more about it in division of assets.

When it comes to minor children, certain deviant behaviors of partners during the marriage union (which are often the reason for divorce), such as violent behavior, alcohol, and drug abuse, etc. can be of significant influence in proceedings for the custody of minor children, when due to such circumstances their parental capacities will be assessed. Read more about it in custody blog post.

How is this regulated in other countries?

With the general formulation of the conditions for divorce, the domestic legislator practically made the path to divorce easier for married partners in Serbia, because they do not have to prove that there is, or that there is not, on their side, the so-called guilt for divorce.

In comparative legislation, we come across much more restrictive legal solutions regarding the possibility of divorce, which is why the solution chosen by our legislator had a lot of criticism. The loudest were those who believed that the legislator, with an easy way to divorce, does not protect the family enough, but gives priority to the will of the individual.

In some legislations there are specific reasons for which spouses can divorce. Thus, e.g. in Germany, divorce proceedings can be started if the spouses have terminated all marital relations for at least one year. According to Italian law, spouses can be divorced if they are separated, if the marriage has not been consummated, if one of the spouses has changed gender or if he has committed a criminal offense, etc.

Therefore, as we have seen, the regulations of the Republic of Serbia, unlike some other countries, do not require proof of anyone’s guilt, nor the provision of more detailed reasons why the spouses decided to divorce, which makes Serbia rather ” popular” country when someone wants to divorce their marriage quickly and easily. Here, of course, we are primarily referring to divorce proceedings initiated by a proposal for a consensual divorce.

Church marriage/divorce and civil marriage/divorce

It is generally known that in the Republic of Serbia, in many cases, in addition to civil marriages, church marriages are concluded at the same time. For married partners, it is a unique ceremony and often much more meaningful to them. However, a clear distinction should be made between a marriage concluded before a competent registrar and a marriage concluded in a church. In the legal sense, these are two separate procedures for concluding a marriage, which have nothing to do with each other, and our law only considers a marriage concluded before the competent registrar as a legal marriage. If we were to clarify it with an example, it would look like this – individuals married only in the church will not receive (have) a certificate from the marriage register, nor will the fact that the marriage was concluded be noted in the birth register. Therefore, from the point of view of the law, such individuals will continue to be treated as unmarried.

This is followed by the issue of divorce. As in our law only a civil marriage is a legal marriage, so only a divorce divorced before the court is a divorce that “counts”. In other words, someone can be married both before the registrar and in the church, if that marriage was divorced only before the court, but not in the church, he will be completely free to enter a new marriage.

Of course, in some rights, the religious form of divorce is certainly relevant, so, for example, a religious divorce procedure is provided for members of the Greek Orthodox Church.

The church rules of the Serbian Orthodox Church also have rules for divorce, and the fact that a church divorce is not required in the eyes of the law to “officially” divorce, does not mean that a marriage concluded in a church cannot be divorced in a church. The only difference is that this decision falls under the sole domain of your will.

The mentioned ecclesiastical rules for divorce are much stricter than civil ones, and unlike civil divorce, in order for a ecclesiastical divorce to occur, there must be some reasons, such as e.g. adultery, cheating on a spouse, moral corruption, malicious abandonment of a spouse, physical and mental illness, apostasy from the Orthodox faith, etc. Also, divorce cannot be sought by the spouse on whose side the blame for the divorce lies. Church rules also state that divorce proceedings must be initiated within a certain period, i.e. from six months to three years, depending on the reason for which the divorce is requested.

Of course, if according to the Marriage Rules of the Serbian Orthodox Church you do not meet the requirements for divorce, this does not mean that you cannot divorce in a proceeding before the competent court at the same time.

Authors of this text: Lawyer Ana Radović and Lawyer Damjana Pavleski