INTERNATIONAL DIVORCE

Jurisdiction of the Czech courts

Within the European Union law, the jurisdiction of the courts regarding the divorce and its recognition is ruled by the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, however the governing law is left unruled.

The Czech courts are competent for the divorce proceedings provided if:

• the spouses have their habitual residence in the Czech Republic,
• the spouses had their last habitual residence in the Czech Republic and one of them still resides in the Czech Republic, or
• the defendant is habitually resident in the Czech Republic, or
• in the event of a joint application for divorce, one of the spouses is habitual resident of the Czech Republic, or
• the applicant was habitually resident in the Czech Republic for at least a year immediately before the application for divorce.

Governing law

On June 21, 2012, the Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (hereinafter “Regulation Rome III”) came into force, which sets forth the governing law for the international divorce. The Regulation Rome III represents an effort of the maximal possible compliance between the jurisdiction and decision-making according to the national law of the respective court. That means that the court to whom the application for divorce was filed, will in most cases decide according to its own law.

The Regulation Rome III unfortunately does not bind the Czech Republic, which means that Czech courts cannot apply it. Because of this this reason, the governing law for the international divorce is set forth by the national law, namely by the No 91/2012 Coll., Act on International Private Law (hereinafter “AIPL”).

According to the AIPL, the law governing the divorce shall be the law of the country, in which both spouses are habitually resident. In other cases, the divorce shall be governed by the Czech law.

If the spouses are of different nationality the governing law shall be the law of the state in which both spouses are habitually resident. In other cases, the governing law will be Czech law.

Divorce according to the Czech law

The Czech law regulates the divorce in section 755 et seq. of the act No 89/2012 Coll., the Civil Code (hereinafter the “Civil Code”). The Czech law distinguishes two forms of divorce:

• contested divorce,
• uncontested divorce

If the one of the spouses files an application for divorce that is not joined by the other spouse, this situation is considered as contested divorce. In such a case, the marriage can be divorced provided that:

• the marriage is deeply, permanently, and irreversibly disrupted and its restoration cannot be expected.
• The restoration cannot be expected.

The court will not grant the divorce in some extraordinary cases, even though it ascertains that the marriage is disrupted. The court will not divorce the marriage if the divorce:

• is contrary to the interest of the minor child or,
• is contrary to the interest of the spouse who did not contributed to the disruption of the marriage and who would suffer by the divorce a serious harm.

The uncontested divorce can be granted under the following conditions:

• both spouses file a joint application for divorce or one of the spouses joins the application of the other one,
• as of the day of the commencement of the divorce proceedings, the marriage has lasted for at least one year and the spouses do not share the household for longer than 6 moths,
• both spouses have agreed on adjustment of the their relations in respect of the minor (custody and maintenance for the time after the divorce) and the court has approved such agreement,
• both spouses have agreed on adjustment of their property and their housing (it is possible to include alimony for the period after the divorce).

If all above mentioned conditions are met and the court reaches a conclusion that the statements of both spouses regarding disruption of the marriage and their intention to separate are truthful, the court shall grant the divorce without investigating the causes of the disruption of the marriage

The condition of the regular divorce is judgement on regulation of the relations and maintenance of a minor child for the time after divorce.