Legal Guide to Family Law in Serbia

 

 

MARRIAGE, EFFECTS OF MARRIAGE, TERMINATION OF MARRIAGE AND CONSEQUENCES OF TERMINATION OF MARRIAGE

 

I) About marriage in general

 

Serbian poet and writer Dusko Radovic have said: “Marriage is regulated by law only when it cannot be regulated otherwise. Therefore, do not allow the law to regulate your marriage. Arrange it yourself, more beautiful and humane than any law can provide.

However, since law and legal regulations permeate every aspect of everyday life, for answers to questions such as whether a marriage between two specific individuals can be concluded, how is property regime in marriage regulated, how a marriage can cease to exist, what are the consequences of divorce with regards to joint children of the spouses and their marital property, etc., we must consult the legislator.

All these issues are regulated by the Family Law of the Republic of Serbia (“Official Gazette of the RS”, No. 18/2005, 72/2011 – other law and 6/2015, hereinafter: the “Law“).

This Law defines marriage as a legally regulated life union of a woman and a man, which can be concluded only with the free consent of the future spouses. In order to additionally emphasize the fact that same-sex marriages are prohibited in the Republic of Serbia, the Law states that two persons of different sexes enter into marriage by giving declarations of will before the registrar, in order to achieve the union of the spouses’ lives, and that spouses are equal in marriage.

 

II) Is the choice of the future spouse really entirely free or not?

 

In general, everyone is free, within the limits of coercive regulations, to choose the person with whom they will enter into marriage. We have already stated that only persons of the opposite sex can conclude a marriage in the Republic of Serbia. In addition to this condition, the Law also provides the following restrictions in the choice of spouses, which, if not respected, lead to the nullity of the marriage.

 

Obstacles to marriage conclusion are:

a) Marriage – a marriage cannot be entered into by a person who is already married;

b) Inability to reason – a marriage cannot be entered into by a person who is incapable of reasoning;

c) Blood relationship – marriage cannot be entered into by blood relatives in the direct line, and from relatives in the collateral line marriage cannot be concluded between a brother and a sister, half-brother and half-sister, uncle and niece, aunt and nephew, between children of brothers and sisters, and children of half-brothers and half-sisters;

d) Adaptive kinship – kinship based on adoption (adoptive kinship) is an obstacle to marriage in the same way as blood kinship;

e) In-laws – marriage cannot be entered into by in-laws in the first degree of the straight line: father-in-law and daughter-in-law, son-in-law and mother-in-law, stepfather and stepdaughter, and stepmother and stepfather. However, the court may, for justified reasons, allow the marriage of in-laws;

f) Guardianship – marriage cannot be entered into by a guardian and a ward;

d) Minority – a person who has not reached the age of 18 cannot marry. However, the court may, for justified reasons, allow the marriage of a minor who has reached the age of 16 and has reached the physical and mental maturity necessary to perform the rights and duties in marriage;

h) Freedom of will – marriage cannot be concluded by a person whose will is not free, which implies coercion – if the spouse agreed to enter into marriage under duress, which means that the other spouse or a third party caused a justified fear in the spouse by force or threat, and he/she, therefore, agreed to enter into marriage. Fear is considered justified when the circumstances show that the life, body or other significant property of one or the other spouse or third party is endangered.

 

III) The effects of marriage

In this sphere, Dusko Radovic’s words take on real meaning – the law left the mutual relations of the spouses to be regulated mostly by themselves, while only in principle it provides the following: Spouses are obliged to lead a common life and to respect and help each other. Spouses are independent in their choice of work and occupation. The spouses agree on the place of residence and decide on running a joint household. Spouses are obliged to support each other.

 

IV) Property relations of married spouses

 

Personal property

 

The property that the spouse acquired before the marriage represents his/her personal property. Also, the property acquired by the spouse during the marriage by division of joint property, or by inheritance, gift or other legal transaction by which only rights are acquired, represents his personal property. Each spouse independently manages and disposes of his / her personal property.

If, during the duration of joint life in the marriage, there was a slight increase in the value of the personal property of one spouse, the other spouse has the right to claim in monetary funds, i.e. to be paid in proportion to his/her contribution in increasing the other spouse’s personal property. But, if, during the duration of joint life in marriage, there was a significant increase in the value of the personal property of one spouse, the other spouse has the right to a share in that property, i.e. to become a co-owner of the same in proportion to his contribution.

 

Common (joint, marital) property

 

The property acquired by the spouses through work during the duration of their marital union represents their joint property. Spouses may regulate their property relations differently by marriage contract.

The joint property of the spouses consists of property acquired through games of chance during the joint life of the married couple, unless the spouse who made the profit proves that he invested his / her personal property in the game. The same applies to property acquired through the use of intellectual property rights during the joint life in marriage.

The joint property is managed and disposed of jointly and severally by the spouses. It is considered that the spouse always undertakes regular management activities with the consent of the other spouse. The spouse cannot dispose of his/her share in the joint property, nor can he/she burden the share with a legal transaction among the living, since the share of the spouse as a joint owner in the joint property is undetermined.

If, after the termination of the joint life in marriage, there was an increase in the value of the joint property, each spouse has the right to a claim in monetary funds, or the right to a share in the increased value of the property in proportion to their contribution.

It is considered that the spouses have divided the joint property if both spouses are registered in the public register of real estate rights as co-owners of a certain property. On the other hand, it is considered that the registration was made in the name of both spouses when it was made in the name of only one of them, unless after the registration of ownership rights in the real estate cadastre, a written agreement was concluded between the spouses on the division of joint property, or a marriage contract, and that agreement is registered in the real estate cadastre, or unless the court had decided on the rights of the spouses with regards to the real estate.

 

V) Liability for obligations

 

The spouse is responsible for his/her own obligations assumed before or after the marriage and he/she bears his/her obligations with his/her separate property, as well as with his/her share in the joint property.

The spouses are jointly and severally liable for their obligations undertaken in order to meet the needs of living together in marriage, as well as for the obligations that are legally charged by both spouses. A spouse who has settled a joint obligation from his / her separate property is entitled to compensation from the other spouse in proportion to his / her share in the joint property.

 

VI) Spouse Contracts

 

  1. Nuptial (Marriage) Contract

Spouses or future spouses may regulate their property relations on existing or future property by a contract (nuptial contract). The marriage contract is concluded in the form of a notarized (solemnized) document. During the confirmation (solemnization) of the contract, the public notary is obliged to warn the contractors in particular that the contract excludes the legal regime of joint property, which the notary notes in the confirmation clause. The marriage contract related to real estate is entered in the public register of real estate rights.

 

  1. Agreement on the Management and Disposal of Joint Property

 

The spouses may enter into an agreement on the basis of which one of them will manage and dispose of all or part of their joint property. This contract may relate only to management or only to disposal or only to certain management and disposal activities. Management includes disposal in the ordinary course of business, unless otherwise agreed. The agreement on the management and disposal of joint property related to real estate shall be entered in the public register of real estate rights. This contract is concluded in the form of a notarized (solemnized) document.

 

  1. Gift Contract

 

If the marriage is terminated by divorce or annulment, the usual gifts made by the spouses to each other during their life together in marriage are not returned. On the other hand, gifts, which the spouses made to each other during the duration of joint life in marriage and whose value is disproportionately large in relation to the value of the joint property of the spouses, are returned. However, spouse is not entitled to a refund if accepting his or her request for a refund would constitute a manifest injustice to the other spouse. Gifts are returned in the state they were in at the time of the termination of the married life.

 

VII) Property – legal relations of extramarital partners

 

When it comes to extramarital partners, extramarital union is in all respects equated with marital, so the property acquired by extramarital partners through work during the life of the couple in the extramarital community is considered their joint property. However, the only difference between marital and extramarital partners is that, unlike spouses, extramarital partners cannot inherit each other by law.

 

VIII) Termination of marriage

 

The marriage ends with the death of a spouse, annulment or divorce. The marriage ends with annulment and divorce on the day the judgment on annulment or divorce becomes final.

A marriage is terminated by annulment if it is null and void, and by divorce if it is valid.

 

What does the nullity of marriage mean?

 

a) Absolute nullity of marriage

 

Marriage is absolutely null and void in the following cases:

  1. if it was concluded by two persons of the same sex, if the declarations of the spouses’ will were not affirmative, or if the marriage was not concluded before the registrar;
  2. if it was not concluded for the purpose of realizing the community of life of the spouses. However, such a marriage will not be annulled if the community of life of the spouses is subsequently established;
  3. if it was concluded during the previous marriage of one of the spouses. However, a new marriage will not be annulled if the previous marriage has ended in the meantime;
  4. if it was made by a person incapable of reasoning. But if this person subsequently becomes capable of reasoning, the marriage is not considered absolutely null and void but relatively null, which means that this marriage can survive and become valid if the causes of its nullity are eliminated.
  5. if it was concluded between blood, adoptive or in-law relatives between whom marriage is not allowed. However, a marriage between these in-laws may not be annulled if there are good reasons;
  6. if it was concluded between a guardian and a ward.

 

An action for annulment of an absolutely null marriage

 

In case the marriage was concluded by two persons of the same sex, if the declarations of the will of the spouses were not affirmative or if the marriage was not concluded before the registrar; if the marriage was not concluded for the purpose of realizing the community of life of the spouses, and the community of life of the spouses was not subsequently established; if the marriage was contracted during the previous marriage of one of the spouses; if the marriage was entered into by a person incapable of reasoning; if the marriage was entered into by blood, adoptive or in-law relatives between whom marriage is not permitted and there are no justifiable reasons for marriage between them; and if the marriage was entered into by a guardian and a ward, a lawsuit for annulment of the marriage may be filed by the spouses, persons who have a legal interest in the annulment of this marriage and the public prosecutor.

An absolutely null marriage can be annulled even after its termination, and the right to file a lawsuit for annulment of a null marriage does not become obsolete.

 

Proof of nullity in case of bigamy

In the procedure for annulment of a marriage which was concluded during the duration of the previous marriage of one of the spouses the existence of the previous marriage is proved by an excerpt from the marriage register. If the plaintiff cannot prove the existence of an earlier marriage with an excerpt from the marriage register, the court will order him to initiate litigation within a certain period of time to determine that an earlier marriage exists, and if he fails to do so, the lawsuit will be considered withdrawn. If the defendant disputes the validity of the previous marriage registered in the marriage register, the court will order him to initiate a lawsuit to annul the previous marriage within a certain period of time, and if he fails to do so, it will be considered that he has given up his claim. The court will reject the claim for annulment of the secondly concluded marriage if the previous marriage was terminated until the conclusion of the main hearing before the court.

b) The relatively null marriage

Marriage is relatively null in the following cases:

  1. if it was concluded by a minor without the permission of the court. However, the court may, for justified reasons, allow the marriage of a minor who has reached the age of 16 and has reached the physical and mental maturity necessary to perform the rights and duties in marriage;
  2. if the spouse consented to its conclusion under duress. Coercion exists when another spouse or a third party has caused justified fear in the spouse by force or threat and when he or she has, therefore, agreed to enter into marriage. Fear is considered justified when the circumstances show that the life, body or other significant property of one or the other spouse or third party is endangered;
  3. when the spouse agreed to its conclusion in delusion about the personality of the other spouse or about some of his / her essential characteristics. Misconception about a person exists when the spouse thought of marrying one person, and he married another person (misconception about a natural person), as well as when he/she married a person he wanted, but that person is not the one for whom he/she pretended (misconception about the civil personality), and a spouse who was delusional would not have married the other spouse if he/she had known about it prior to marriage. There is a misconception about an important trait when it comes to such a trait because of which the misguided spouse would not have married the other if he had known about that trait, i.e. when the delusion is of a decisive nature.

Unlike an absolutely null marriage that cannot be validated by the subsequent elimination of the cause of nullity, a relatively null marriage can survive and become valid if the causes of its nullity are eliminated.

 

A lawsuit for annulment of a relatively null marriage

 

A relatively null marriage can be annulled for the following reasons:

  1. Minority – a spouse who was a minor at the time of the marriage may file a lawsuit for annulment of the marriage he/she entered into without the permission of the court within one year from the day of reaching the age of majority. The parents of the minor spouse, or his/her guardian, may file a lawsuit for annulment of the marriage concluded without the permission of the court until the minor spouse reaches the age of majority.
  2. Coercion and delusion – a spouse who entered into a marriage under duress or in delusion may file a lawsuit for annulment of the marriage within one year from the day when the coercion ceased or the delusion was noticed.
  3. Incapacity for judgment – a spouse who was not capable of reasoning at the time of marriage, and subsequently becomes capable of reasoning, may file a lawsuit for annulment of marriage within one year from the date of cessation of incapacity for judgment, or from the day the court decision with regards to restoring his/her business capacity becomes final.

 

The right to sue for annulment does not pass to the heirs of the spouses. However, the heirs of the spouses can only continue the already started procedure in order to determine that there was a basis for the annulment of the marriage. The guardian of a minor or incapacitated spouse may file a lawsuit for annulment of the marriage only with the prior consent of the guardianship authority.

 

IX) Divorce

 

A validly concluded marriage ends with the death of the spouse or by a divorce, which can be consensual or divorce by lawsuit.

A consensual divorce occurs when the spouses conclude a divorce agreement and regulate the following matters: division of marital property, exercising parental rights over joint children, the matter of alimentation and of maintaining personal relations between children and the parent who will not exercise parental rights. The part of this agreement which regulates the matter of spouses’ joint property division is accepted by the the court automatically, without entering the matter whether the property was divided in a fair and just manner. But the part of this agreement which regulates the alimentation, the exercise of parental rights and maintaining personal relations between children and the parent who will not exercise parental rights, the court accepts only if this part of the agreement was made in the best interest of the child.

If the spouses have not concluded a divorce agreement, or, as it is colloquially often defined, if one of the spouses “does not give a divorce” to the other, the spouse who wants the divorce files a lawsuit for divorce. Therefore, if at least one of the spouses wants to get divorced, he/she can do the same by filing a divorce lawsuit, for which he/she certainly does not need the consent of the other spouse, and can file this lawsuit even if other spouse is against the divorce.

 

A) Divorce agreement

 

Spouses have the right to divorce if they enter into a written divorce agreement. The divorce agreement must also contain a written agreement on the exercise of parental rights and a written agreement on the division of joint property. An agreement on the exercise of parental rights may take the form of an agreement on the joint exercise of parental rights or an agreement on the independent exercise of parental rights. It is also necessary to provide with this agreement the amount of alimony with which the parent who does not live with the children will participate in their life support.

Therefore, below we will explain each of the above elements of the divorce agreement in detail:

I Parental rights and the exercise of parental rights

 Parents have the right and duty to take care of the child, which includes: custody, upbringing, education, legal representation, as well as maintenance, management and disposal of the child’s property. Parents have the right to receive all information about the child from educational and health institutions.

Parental right is derived from the duty of the parent and exists only to the extent necessary to protect the personality, rights and interests of the child.

  1. Joint exercise of parental rights

Parents exercise parental rights jointly and amicably when they lead a joint life. Also, parents exercise parental rights jointly by agreement, even when they do not lead a joint life, if they conclude an agreement on joint exercise of parental rights and if the court assesses that this agreement is in the best interest of the child.

 

Agreement on joint exercise of parental rights

 

By the agreement on joint exercise of parental rights, the child’s parents agree in writing that they will perform parental rights and duties jointly, by mutual agreement, which must be in the best interest of the child. An integral part of the agreement on the joint exercise of parental rights is the agreement on what will be considered the child’s residence.

 

  1. Independent exercise of parental rights

One parent exercises parental rights alone in the following cases:

  1. when the other parent is unknown, or has died, or is completely deprived of parental rights or legal capacity;
  2. when only he/she lives with the child, and the court has not yet made a decision on exercising parental rights;
  3. on the basis of a court decision, when the parents do not lead a joint life and have not concluded an agreement on the joint exercise of parental rights;
  4. on the basis of a court decision, when the parents do not lead a joint life, and have concluded an agreement on joint or independent exercise of parental rights, but the court assesses that this agreement is not in the best interest of the child;
  5. on the basis of a court decision, when the parents do not live together and they concluded an agreement on the independent exercise of parental rights, which the court assesses that it is in the best interest of the child.

 

Agreement on independent exercise of parental rights

The agreement on independent exercise of parental rights includes the agreement of the parents on entrusting the joint child to one of them, the agreement on the amount of contribution for the alimentation of the child from the other parent, and the agreement on the manner of maintaining personal relations of the child with the other parent who does not live with the child. The agreement on the independent exercise of parental rights transfers the exercise of parental rights to the parent to whom the child is entrusted. And the parent who does not exercise parental rights has the right and duty to support the child, to maintain personal relations with the child, and to decide on issues that significantly affect the child’s life jointly and in agreement with the parent exercising parental rights. Issues that significantly affect the child’s life are considered in particular: the child’s education, undertaking major medical procedures on the child, changing the child’s residence and disposing of the child’s property of great value.

 

II Alimentation (maintenance, subsistence)

 

Although, from the aspect of the divorce agreement, the biggest importance is given to the children’s alimentation, there are also cases in which the spouse is entitled to support from his/her former spouse after the termination of the marriage (for a maximum of five years from the termination of the marriage, and exceptionally even after this period, if especially justified reasons prevent the supported spouse from working), as well as the possibility for the child’s mother to demand support from the child’s father. Therefore, in this part of the text we will explain these cases as well:

 

  1. Spousal support

A spouse who does not have sufficient means of subsistence, and is unable to work or is unemployed, is entitled to alimony from the other spouse in proportion to his or her capabilities. A spouse who knew the cause of marriage nullity at the time of the null and void marriage is not entitled to maintenance. A spouse is not entitled to maintenance if accepting his or her request for maintenance would be an obvious injustice to the other spouse.

According to the same principle, an extramarital partner who does not have sufficient means of subsistence, and is unable to work or is unemployed, has the right to support from another extramarital partner in proportion to his / her abilities.

 

  1. Maintenance of the child’s mother

 

The mother of a child who does not have sufficient means of subsistence is entitled to support from the father of the child for a period of three months before the birth and one year after the birth of the child. A mother is not entitled to alimentation if accepting her request for support would be an obvious injustice to the father.

 

  1. Maintenance of a minor child

A minor child is entitled to support from a parent. A minor child is entitled to maintenance from other blood relatives in the direct ascending line, if the parents are not alive or do not have sufficient means of support. The duty of a minor child to partially meet the needs of his subsistence from his own earnings or property is subsidiary to the duty of parents and blood relatives.

 

  1. Maintenance of an adult child

An adult child who is incapable of work, and does not have sufficient means of subsistence, has the right to maintenance from his parents as long as such a condition lasts. An adult child who attends school regularly has the right to support from his parents in proportion to their abilities, and this maintenance legally lasts no later than the age of 26. In the cases described above, an adult child has the right to support from blood relatives in the direct ascending line in proportion to their possibilities, if the parents are not alive or if they do not have sufficient means of support. An adult child is not entitled to maintenance if accepting his / her request for maintenance would be an obvious injustice for the parents or other blood relatives.

 

Criteria for determining subsistence

 

Maintenance is determined according to the needs of the creditor and the possibilities of the debtor’s maintenance, taking into account the minimum amount of maintenance. The needs of the maintenance creditor depend on his age, health, education, assets, income and other circumstances relevant to determining maintenance. The debtor’s ability to support depends on his income, employment and earning opportunities, his property, his personal needs, his obligation to support other persons and other circumstances relevant to determining maintenance.

 

Method of determining subsistence

 

As a rule, alimony is determined in money, but the same can be determined in another way, but only if the creditor and the debtor of alimony agree on that. Agreements on legal support are concluded in the form of a notarial deed.

 

Subsistence height

 

The maintenance creditor may, at his / her choice, request that the amount of maintenance be determined in a fixed monthly amount of money or as a percentage of the regular monthly income of the maintenance debtor. If the amount of maintenance is determined as a percentage of the regular monthly income of the debtor (salary, salary compensation, pension, fees, etc.), the amount of maintenance, as a rule, cannot be less than 15% or more than 50% of regular monthly income of the debtor of maintenance,  less taxes and contributions for compulsory social insurance. If the maintenance creditor is a child, the amount of maintenance should enable at least such a standard of living for the child as enjoyed by the parent who is the maintenance debtor.

 

Duration of subsistence

 

Maintenance can last for a definite or indefinite period of time. Spousal support after the dissolution of the marriage cannot last longer than five years. Exceptionally, the maintenance of the spouse after the termination of the marriage may be extended even after the expiration of the five-year period if especially justified reasons prevent the spouse – maintenance creditor from working.

 

Change in altitude of the subsistence

 

The amount of maintenance may be reduced or increased if the circumstances on the basis of which the previous decision was made change.

 

Right of recourse

 

A person who actually provided support, but did not have a legal obligation to provide it, is entitled to compensation from the person who was obliged by law to provide support. If several persons were obliged to provide support at the same time, their obligation is joint and several.

 

Order in subsistence

 

The spouse exercises the right to maintenance primarily from the other spouse. Blood relatives exercise their mutual right to support in the order in which they inherit on the basis of the Law on Inheritance. If several persons are obliged to provide support at the same time, their obligation is divided.

 

Termination of subsistence

 

Maintenance ceases in any case:

  1. when the period of subsistence expires;
  2. in case of death of the creditor or the debtor.

 

Maintenance may cease:

  1. when the maintenance creditor acquires sufficient means of subsistence, unless the maintenance creditor is not a minor child;
  2. when the maintenance debtor loses the opportunity to provide support or the provision of support becomes obviously unfair to him, unless the creditor of maintenance is not a minor child;
  3. the maintenance of the spouse also ceases when the maintenance creditor enters into a new marriage or extramarital union. A spouse whose right to maintenance once ceased cannot re-exercise the right to maintenance from the same spouse.

 

 

III. Right of residence (habitatio)

 

In case the child and the parent with whom the child lives after the divorce do not have a housing issue resolved, it is important to point out the right of residence which implies that the child and the parent exercising parental rights have the right to live in an apartment owned by the other parent, if they do not have the right of ownership over the habitable apartment. The right to housing lasts until the child reaches the age of majority. However, the child and the parent do not have this right if accepting their request for the right to housing would be an obvious injustice for the other parent.

 

IV Property relations of spouses in case of divorce (division of marital property)

 

Division of joint property

 

The division of joint property is considered to be the determination of the co-ownership or co-trust share of each spouse in the joint property. The division of joint property can be done during the marriage or after its termination.

 

Agreed division

 

Spouses can conclude an agreement on the division of joint property (agreed division). The agreement on the division of the joint property of the spouses is concluded in the form of a notarized (solemnized) document.

 

Judicial division

 

If the spouses cannot agree on the division of the joint property, the division of the joint property is done by the court (judicial division). It is assumed that the spouses’ shares in the joint property are equal, and the larger share of one spouse in acquiring the joint property depends on his earned income, running a household, caring for children, taking care of property and other circumstances important for maintaining or increasing the value of joint property. A larger share in the acquisition of joint property is determined in the same proportion for all rights and obligations at the time of termination of the marital union. A higher share of one spouse in acquiring an individual right from joint property can be determined only if that right is economically independent in relation to other rights from joint property, and the spouse also participated in acquiring that right with income from his personal property.

The following have the right to the division of joint property: spouses, heirs of the deceased spouse and creditors of the spouse from whose personal property their claims could not be settled.

 

Division of things:

 

  1. Things for the personal use of the spouse

Items for the personal use of one spouse belong to him/her as exclusive ownership without being included in his/her share if their value is not disproportionately large in relation to the value of the joint property and the value of the items for the personal use of the other spouse. If the value of these things is disproportionately large, they belong to the exclusive property of the spouse, but are included in his/her share.

 

  1. Things intended for the child

The things intended for the child belong exclusively to the spouse who exercises the parental right without being included in his share, and if the parents exercise the parental right jointly, they have the right of joint ownership over the things intended for the child.

 

 

  1. Things for performing craft or occupation

The things for performing the craft or occupation of one spouse belong to him/her as exclusive ownership, but are included in his/her share.

 

  1. Household items

Household items, over which one spouse has possession for at least three years after the termination of the marital union, belong to that spouse as exclusive ownership, and are included in his/her share.

 

B) Divorce by lawsuit

 

Every spouse has the right to divorce if the marital relationship is seriously and permanently disrupted or if the union of the spouses’ life cannot be objectively realized, by filing a lawsuit for divorce in court.

 

X) Rules of procedure in family relations in general

 

The court proceedings related to family relations are regulated by the provisions of the Law on Civil Procedure (“Official Gazette of the RS”, No. 72/2011, 49/2013, 74/2013, 55/2014, 87/2018), which in this case is the lex generalis, i.e. it is applied unless the issue determined by the Law is determined differently.

Judges who judge in the first and second instance in civil proceedings related to family relations must be persons who have acquired special knowledge in the field of children’s rights.

The procedure related to family relations is urgent if it refers to a child or a parent who exercises parental rights, which means that the court, as a rule, will conduct this procedure at a maximum of two hearings. In the procedure related to family relations, the lawsuit is not submitted to the defendant for a response, and the first hearing is scheduled to be held within 15 days from the day when the lawsuit or proposal was received in court. The second instance court is obliged to make a decision within 30 days from the day when the appeal was submitted to it. In practice, due to the overload of courts in the Republic of Serbia, these legal rules are generally not respected.

In the procedure related to family relations, the court may establish the facts even when they are not disputable between the parties, and it may also independently investigate the facts that neither party has presented. In these proceedings, the public is excluded, and the data from the court files are an official secret and must be kept as such by all participants in the proceedings to whom this information is available. The court decides on the reimbursement of the costs of the procedure related to family relations at its own discretion, taking into account the reasons of fairness. Revision is always allowed in proceedings related to family relations, unless otherwise provided by law.

 

XI) Rules of procedure in a marital dispute

 

For the trial in disputes for the purpose of determining the existence or non-existence of marriage, annulment of marriage or divorce (marital disputes), in addition to the court of general local jurisdiction (determined according to the defendant’s residence), the court in whose territory the spouses had their last joint residence is also competent.

If the domestic court has jurisdiction over matrimonial disputes because the spouses had their last joint residence in the Republic of Serbia, or because the plaintiff has a residence in the Republic of Serbia, the court in whose territory the spouses had their last joint residence, or the court in whose territory the plaintiff has a residence is territorially competent.

If the domestic court has jurisdiction in disputes over the spouse’s property relations because the spouse’s property is located in the Republic of Serbia or because the plaintiff has a permanent or temporary residence in the Republic of Serbia, the court in whose territory the plaintiff has a permanent or temporary residence is territorially competent.

 

Filing a lawsuit

 

The marital dispute is initiated by a lawsuit, while only the procedure for divorce is initiated by a lawsuit or by a proposal for an amicable divorce.

 

Divorce lawsuit

 

Both spouses can file for divorce. The right to sue for divorce does not pass to the heirs of the spouses, but the heirs of the spouses may continue to initiate proceedings to establish that there were grounds for divorce. Also, the heirs of the spouses who initiated the marital dispute with the proposal for an amicable divorce may continue the already started procedure in order to determine that there was a basis for the divorce. The guardian of an incapacitated spouse may file for divorce only with the prior consent of the guardianship authority.

If the lawsuit in a marital dispute is filed by the party’s attorney, the power of attorney must be certified and issued only for the purpose of representation in the marital dispute. The power of attorney must contain statements regarding the type of lawsuit and the grounds for filing the lawsuit. In a marital dispute initiated by a proposal for an amicable divorce, the spouses cannot be represented by the same proxy.

 

Waiver of claim

 

In a marital dispute, the waiver of the claim has the same legal effect as the withdrawal of the claim.

 

Withdrawal of lawsuit and proposal for consensual divorce

In a marital dispute, the plaintiff may withdraw the lawsuit until the conclusion of the main hearing without the consent of the defendant, and with the consent of the defendant until the procedure is finalized. A proposal for an amicable divorce may be withdrawn by one or both spouses until the proceedings have been finalized. If the withdrawal of the lawsuit or motion occurred after the first-instance verdict was rendered, the court shall determine by a decision that the verdict has no legal effect and that the procedure is suspended.

 

Mediation procedure in a marital dispute

 

The mediation procedure (hereinafter: mediation) includes the procedure for an attempt at conciliation (hereinafter: conciliation) and the procedure for an attempt to amicably end the dispute (hereinafter: settlement).

Mediation is regularly conducted with the procedure in a marital dispute initiated by a lawsuit of one of the spouses.

 

The same is not implemented:

  1. if one of the spouses does not agree to mediation;
  2. if one of the spouses is incapable of reasoning;
  3. if the residence of one of the spouses is unknown;
  4. if one or both spouses live abroad.

 

Mediation, as a rule, is conducted by the court. Along with the summons to the mediation hearing, a lawsuit for annulment or divorce is submitted. The judge conducting the mediation shall not participate in the decision-making at a later stage of the proceedings, unless the mediation has succeeded.

Upon receipt of an action for annulment or divorce, the court schedules a mediation hearing to be held only before a single judge. The judge who manages the mediation is obliged to recommend to the spouses that they also undergo psycho-social counseling. If the spouses agree to psycho-social counseling, the court will, at their suggestion, or with their consent, entrust the mediation to the competent guardianship authority, marital or family counseling, or another institution that specializes in mediation in family relations. Entrustment is done by filing a lawsuit for annulment or divorce.

 

Conciliation

 

Conciliation is carried out only in a marital dispute initiated by a divorce lawsuit. The purpose of conciliation is to resolve a disturbed spouse’s relationship without conflict and without divorce. Both spouses are invited to the conciliation, while the proxies cannot represent the spouses or attend the conciliation. If the spouses reconcile, the divorce lawsuit will be considered withdrawn. If one or both spouses, although duly summoned, do not respond to the conciliation summons, the conciliation will be deemed to have failed and the settlement procedure will continue. If there is no reconciliation, but the court or the institution entrusted with the mediation procedure assesses that there is a chance that reconciliation will take place, conciliation can continue. The court or the institution entrusted with the mediation procedure shall compile a record of the conciliation, which shall contain the statements of the spouses that they have reconciled, or that the conciliation has failed. The institution entrusted with the mediation procedure is obliged to inform the court to which the lawsuit for divorce was filed about the result of the conciliation and to submit the minutes on the conciliation. The court or institution entrusted with the mediation procedure is obliged to conduct conciliation within two months from the day of submitting the lawsuit to the court or institution. If the institution entrusted with the mediation procedure does not inform the court about the results of the conciliation within three months from the day when the divorce lawsuit was submitted to it, the conciliation procedure will be conducted by the court. The court is obliged to schedule the conciliation hearing so that it is held within 15 days from the day when the period of two months from the day of submitting the lawsuit to the court or institution expired.

 

Settlement

 

The settlement is implemented in a marital dispute that was initiated by a lawsuit for annulment of the marriage, or a lawsuit for divorce, and the reconciliation of the spouses failed. The purpose of the settlement is to resolve the disturbed relationship of the spouses without conflict after the annulment or divorce. The court or the institution entrusted with the mediation procedure will try to reach an agreement between the spouses on the exercise of parental rights and an agreement on the division of joint property.

 

Both spouses and their proxies are invited to the settlement. If the spouses reach an agreement on the exercise of parental rights and an agreement on the division of joint property, the settlement will be considered successful. If the spouses reach only an agreement on the exercise of parental rights or only an agreement on the division of joint property, the settlement will be considered as partially successful. If the settlement is successful or partially successful, the agreement of the spouses on the division of joint property is entered in the operative part of the judgment on annulment or divorce. If the settlement is successful or partially successful, the agreement of the spouses on the exercise of parental rights is entered in the operative part of the judgment on annulment or divorce if the court deems that the agreement is in the best interests of the child.

If one or both spouses, although duly summoned, do not respond to the call for settlement, the settlement will be deemed to have failed and the proceedings on the lawsuit for annulment or divorce will continue. If no settlement is reached, but the court or institution entrusted with the mediation procedure assesses that there is a chance that a settlement will be reached, the settlement may be continued.

The court or institution entrusted with the mediation procedure shall compile a report on the settlement, which contains the spouse’s agreement on exercising parental rights and on the division of joint property, or the spouse’s statement that the settlement failed. The institution entrusted with the mediation procedure is obliged to inform the court to which the lawsuit for annulment or divorce was filed about the result of the settlement and to submit the minutes of the settlement.

The court is obliged to implement the settlement within two months from the day when the conciliation procedure was completed, or from the day when the lawsuit for annulment of the marriage was submitted to the court. The institution entrusted with the mediation procedure is obliged to implement the settlement within two months from the day when the conciliation procedure was completed, or from the day when the lawsuit for annulment of the marriage was submitted to that institution. If the institution entrusted with the mediation procedure does not inform the court about the results of the settlement within three months from the day when the conciliation procedure was completed, or from the day when the lawsuit for annulment of the marriage was submitted to it, the settlement procedure will be conducted by the court. The court is obliged to schedule the hearing for the settlement so that it is held within 15 days from the day when the period of three months from the day when the conciliation procedure ended, or from the day when the lawsuit for annulment of the marriage was submitted expired.

 

Judgment and court settlement

 

In a marital dispute, a judgment for omission or a judgment based on confession or renunciation can not be pronounced. Also, in a marital dispute, the parties cannot conclude a court settlement.

 

Divorce judgment based on divorce agreement

 

The agreement of the spouses on the exercise of parental rights is entered in the operative part of the judgment on divorce only if the court assesses that the agreement is in the best interest of the child, while the agreement of the spouses on the division of joint property is entered in the operative part of the judgment on the basis of a divorce agreement itself, without the court’s intervention in assessing the fairness or justification of this division.

 

Judgment in a marital dispute

 

The court is obliged to decide on the exercise of parental rights by a judgment in a marital dispute. At the same time, the court may, by a judgment in a marital dispute, decide on the complete or partial deprivation of parental rights and / or determine one or more measures of protection against domestic violence.

 

Rebuttal of the judgment

 

A divorce judgment rendered on the basis of a divorce agreement can be challenged only because of significant violations of the provisions of civil procedure or because the divorce agreement was concluded under duress or in delusion. A final judgment in a marital dispute can not be challenged by extraordinary legal remedies in respect of the part of the decision by which the annulment of marriage or divorce is proclamed.

 

Death of the parties

 

If one or both spouses die during the marital dispute, the first instance court will determine that the procedure is suspended, which does not affect the right of the heirs to continue the procedure, in order to determine whether the basis for divorce existed in the time of marriage or not.