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Balkan divorce: how marriages end in Serbia

Serbia is a modern country with modern attitudes but some patriarchal and traditional attitudes to marriage linger on. As you would expect, it is fully regulated by law but of course some couples choose not to marry and simply live together in a cohabiting relationship. Serbian law does not permit marriage between persons of the same sex.

Marriage grants each partner in the relationship equal rights. Civil marriages are formed by the free consent of each party, as given to the relevant state authorities. Marriages and cohabiting relationships are legally equal under the Family Law Act, but some differences are defined by other legislation, for example inheritance rights. Under the current law, cohabitants do not automatically inherit from their partners if the latter die. In the near future, however, we expect the adoption of a new civil code which should resolve these and other differences.

In Serbia, couples can also opt for a church or religious marriage, conducted according to the rules of the religious community in question. Patriarchal traditions and religious education are both still influence the behavior of some Serbians. But unlike civil marriages religious marriages are not legally binding. If a man and a woman who have undergone a church marriage then begin to live together their relationship would be regarded in law as the equivalent of cohabitation.

Marriage customs vary amongst different social groups, and some older traditions still persist in rural areas – for example ‘buying a bride’. In this custom, the groom’s brother ‘buys’ the bride from her family, usually from her brother. Of course this is just a bit of pageantry, not to be taken literally, and it is often done in a very entertaining way.

When a woman enters into a marriage she has the right to keep her surname or take her husband’s. Some women add the husband’s surname to their own. Husbands also have the right to change their surname if they wish but in practice this rarely happens. If the spouses have children, they must all have the same surname. In other words, one child cannot have the mother’s surname and another the father’s surname.

A marriage can be dissolved by the courts in two ways: by mutual agreement of the spouses or by the filing of a lawsuit for divorce. In these court proceedings the public is excluded in order to protect the privacy of the family.

Divorce is very liberal in Serbia. Reasons for divorce, according to the Family Law Act, can include a seriously and permanently disturbed marital relationship and the spouses no longer being able to live together for some solid reason – for example, if a spouse has gone missing. In practice, however, a divorce is usually achieved through one of the spouses simply leaving the relationship and declaring that they no longer want to be married.

Cohabitation, by contrast, simply ends when one partner leaves. If cohabitants have joint children and if they cannot reach an agreement on arrangements they have to file an application with the courts which will then decide on the matter.

Divorce proceedings can be initiated by mutual agreement between the spouses. This proposal must include arrangements as to where any children will live, whether with one both or both parents. They must state which parent will make decisions about the child’s education, who will administer the child’s property, and arrangements regarding contact between the child and the non-resident parent. There must also be an agreement on the payment of any maintenance and on the division of assets or property earned together during the marriage. The role of resident parent includes keeping, raising, educating, representing and supporting the child, as well as looking after their property.

Divorce proceedings initiated by lawsuit are more complicated than those initiated by mutual agreement. A mandatory part of the court process is mediation, unless one spouse does not agree to this or if they are incapable of participating in the process. Alternatively the issue might be that they live abroad or simply that their whereabouts are unknown.

Mediation consists of two parts: conciliation and settlement. The court is obliged to try conciliation and if that fails court they will start the settlement procedure. Conciliation is focused on any possibility that the spouses might reconcile, whereas the point of settlement is peaceful resolution of disputed issues related to arrangements for the child, maintenance and contact.

The courts are obliged by law to conduct conciliation procedure within two months of the beginning of divorce proceedings. During this procedure the court can decide to refer spouses, if they agree, to appropriate organisations, such as the guardianship authority, marital and family counseling, or other specialized institutions for family mediation.

During the conciliation, solicitors for each of the spouses need not be present, but they can represent them in the process of settlement and the rest of the divorce proceedings. In practice, the court usually refers spouses to the guardianship authority for conduct of the conciliation procedure. If the conciliation stage fails, then the guardianship authority will then conduct the settlement procedure. After finishing this, the guardianship authority is then required to report the results to the court.

If the spouses have not reconciled or reached a settlement, the guardianship authority submits their own findings and expert opinion, including suggestions on arrangements for the child, the payment of maintenance (which cannot be lower than 15 per cent nor higher than 45 per cent of the income of the spouses). The authority will also consider issues surrounding contact for the non-resident parent, guided by the principle of “the best interests of the child”. Although the opinion of the guardianship authority is not legally binding on the court, in practice, the courts respect its conclusions and rarely deviate from them.

A child who has reached the age of ten may freely and directly express his or her opinions in any judicial and administrative proceedings concerning their rights. A child who has reached the age of 15 years and who is capable of reasoning may also make their own decisions regarding which parent they wish to live with.

Despite the technical equality of both parents, in practice children usually end up living with their mother. After divorce, children are, sadly, often used as emotional weapons against the other parent, by people unconcerned with the best interests of their children.

Common problems post-divorce include failure to pay child maintenance regularly and one partner interfering with the other’s right to see the child or children.

So there you have it. Serbian divorce law is very liberal.

Autor: Marija Sara Jovanović
Izvor: Stowe Family Law

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