Marriage is commonly perceived as an essential legal institution in various societies, but all systems of marriage need also to deal with the dissolution of marriages. The common mechanism for this is divorce.
Bulgarian law offers two main routes to divorce: by mutual consent of the married spouses or by means of a claim on the basis of what may be termed “irretrievable breakdown” (but where the literal translation would be “irreparable disorder of the marriage”).
Furthermore, we deal here only with the dissolution of valid marriages. The dissolution of invalid marriages, i.e. annulment, is outside of our note’s scope.
Both of these methods of divorce require the involvement of the court.
What this note does and does not cover
In the note, we consider some of the more salient complications of divorces with an international element. These are increasingly common in practice due to the increasing interconnectedness between people on a planetary scale.
This note deals with the financial consequences of divorce, but does so only as to marriages where there is joint ownership (community of property). This is the regime that applies by default in Bulgaria, unless the spouses either enter into a prenuptial agreement or elect the “separation of title” regime instead.
Unlike many other jurisdictions in Europe, Bulgaria does not currently recognise same-sex marriages except as regards same-sex couples validly married in other EU jurisdictions (*1). In practice, this may result in a possible full recognition in practice, but only in situations where EU law is engaged (*2). Nevertheless, same-sex marriages and the availability and recognition of divorce in same-sex marriages are outside of the note’s scope.
Finally, we also do not cover here the dissolution of religious (e.g., church) marriages in Bulgaria, nor the recognition of marriage dissolutions of any kind which occurred abroad.
Divorce by mutual consent
By virtue of s 50 of the Bulgarian Family Code 2009 (‘FC’), divorce by mutual consent may be ordered where the spouses manifest to the court a serious and unwavering mutual consent to dissolve the marriage. In this case, the court does not examine the couple’s reasons for the divorce nor fault. Such a method of divorce is usually only possible where the relationship between the spouses is less strained at the time of divorce as their mutual cooperation at court is necessary.
In accordance with s 51(1) FC, the divorcing spouses must submit to court a joint application for divorce. This must contain a settlement agreement dealing with the consequences of their divorce. At a minimum, the settlement agreement must include clauses on financial support (if any) between the spouses and from the spouses towards their children; any children’s residence; care and access to the children (if any); the use of the family home and the spouses’ surnames after dissolution. These items must be covered, but the spouses’ agreement can deal with other matters too.
Since divorce by mutual consent is not an adversarial proceeding, the local court as per the applicants’ permanent address registration in Bulgaria (if any) has jurisdiction (*3). In the event that the applicants have different address registrations (or one of them is not registered), they can choose the local court they wish to apply to.
Both spouses must attend the first court hearing in the proceedings in person. At that, they must satisfy the court that they each have the requisite serious and unwavering resolve to dissolve the marriage. Failure to appear in person at the first hearing in the application will generally result in the case’s termination (*4). This does not prevent the spouses from applying again on the very same ground at a later date however.
In addition to being satisfied as to the agreement to dissolve, the court also reviews the settlement for compliance with the law and to protect the interests of any children. To do this, the court may request a report from social services - s 51(2) FC.
If the agreement is incomplete or the children’s interests are not sufficiently well protected in the court’s opinion. The court may require the parties to amend it accordingly and give them time to do so. Failure to amend and resubmit on time results in the termination of the dissolution proceedings.
If the court is able to approve the settlement agreement, it proceeds to dissolve the marriage by a court order (similar to the common law decree nisi), effective from the date of the decision. This order is immediately effective and cannot be set aside. The parties are free to re-marry (each other or other partners) from the date of this final order.
“Irreparable disorder of the marriage” (divorce other than by consent)
Each spouse may seek divorce when the marriage is deeply and irreparably damaged. The claimant must exhaustively identify all grounds for the divorce, in accordance with s 322(1) CPC. Grounds of which the claimant was aware or that occurred before the end of the hearing, may not be relied on to base a new claim (on the doctrine of res judicata).
Jurisdiction is conferred to the court local to the respondent’s permanent address in Bulgaria (if applicable)(*6).
Upon the request of a party, the court may make interim order as to: financial support, the use of the family home and the assets acquired during the marriage, care of the children and financial support for them.
These interim orders are not subject to appeal, but the court may amend them from time to time, e.g. in accordance with changes in the circumstances of the children.
Also, by virtue of s 320 CPC, the proceedings may be stayed if the wife is pregnant or has an infant of under 12 months of age.
As with divorce by consent, both spouses are required to attend the first court hearing in person. If the claimant does not attend, the claim is terminated. On the other hand, if the defendant fails to attend, no termination on this basis follows.
At any stage of the proceedings the parties may settle partially or fully between themselves any of the issues which the court is required to rule on. The parties must submit their settlement agreement to court for approval. The court examines whether the proposed settlement sufficiently protects the children’s interests - s 49(5) FC. If the settlement is approved, the case may be terminated or the parties may switch to the procedure of divorce by mutual consent, depending on the circumstances (*7).
Unlike what we understand is the position in some US jurisdictions, even though this is an irretrievable breakdown situation, the court may examine fault. That is, this method of divorce is not necessarily a no-fault divorce in Bulgaria. However, the court rules on fault only if one of the spouses requests that.
Fault is significant in that, among other things, the spouse found at fault for the dissolution, will be ordered to pay both parties’ legal expenses in the proceedings and has no right of financial support by the other spouse after dissolution. If there is no request for examination or finding of fault, each spouse bears their own expenses and may seek financial support.
As with divorce by mutual consent, the marriage is dissolved as of the date of the court’s final order. The enters into force in regard to the dissolution of the marriage even if it is appealed in the part regarding the fault. No decisions in absentia (*8) or on admission of claim (*9) are allowed (*10).
In the globalised world of today, marriages with an international element, usually in the form of couples with different nationalities and/or living in a foreign country, are becoming frequent, which poses challenges of its own. In this section, we only deal with so-called cross-border divorces. Divorces of purely domestic nature (between Bulgarians living in Bulgaria who have seised the local court) are governed entirely by Bulgarian national law.
In accordance with Article 3 of the Brussels IIa Regulation (*11), the request for divorce (whether by mutual consent or non-consensual) may be filed with the courts in the EU Member State:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there;
- of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses.
The first court where the request is filed that meets these conditions has jurisdiction to adjudicate on the divorce.
If a court is validly seised and has jurisdiction, it may also decide on issues relating to parental responsibility, provided any child of the marriage lives in that court’s country.
The governing substantive law of the divorce is determined in accordance with the rules in the Rome III Regulation (*12). This is not necessarily the law of the country where the request for divorce is filed. The law designated by Rome III may be the law of a non-participating Member State or even a non-EU Member State (*13) at all. The Bulgarian court, for example, may need to apply the law of the People’s Republic of China.
Currently, the Rome III Regulation applies in 17 participating Member States (*14), including Bulgaria. Pursuant to Article 5(1) of Rome III, the divorcing couple can agree to apply the divorce laws of:
- the state where both spouses are habitually resident at the time of the agreement; or
- the state where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or
- of the state of nationality of either spouse at the time the agreement is concluded; or
- the forum, i.e. the state of the court which they have seised.
If the spouses do not agree on applicable law, the courts will, by and large, apply the laws of the country:
- where the spouses are habitually resident at the time the court is seised; or, failing that,
- where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seised, in so far as one of the spouses still resides in that State at the time the court is seised; or, failing that
- of which both spouses are nationals at the time the court is seised; or, failing that
- where the court seised is situated.
A divorce or a legal separation granted in one EU member state is recognised automatically in all other EU member states: there is no need to go through any additional procedures - Article 21(1) of the Brussels IIa Regulation (*15).
Bulgarian International Private Law Code
Where the divorcing couple does not fall within the scope of Rome III (*16), the Bulgarian International Private Law Code 2005 (‘IPLC’) applies instead to divorce proceedings in the Bulgarian courts.
As regards jurisdiction, the Bulgarian court is competent whenever one of the spouses is a Bulgarian national or is habitually resident in Bulgaria - s 7 IPLC.
As regards the applicable law, pursuant to s 82 IPLC, that is the law of the country whose nationals the spouses are. If they are nationals of different countries, the law of the country where their common habitual residence is, if any, will apply. If they have no common habitual residence, Bulgarian law applies. If under the applicable foreign law, the divorce is impermissible and one of the spouses is a Bulgarian national or has his or her habitual residence in Bulgaria, Bulgarian law applies.
In accordance with s 79 IPLC, the regime of marital ownership is determined by the law of the country whose nationals the spouses are or, if they have different nationalities, the law of the country where their common habitual residence is. Failing that too, the law of the most closely connected country applies. If that applicable law allows it, the couple can choose the law applicable to their marital property.
Divorce with a spouse with an unknown residence
As may often happen when the relationship between international spouses is seriously strained, one of them may leave the country of previous common habitual residence. This may cause significant complications for the spouse seeking divorce, in particular with regard to service of court documents to the absent spouse. Such service is however fundamental to the preservation of the right of the absent spouse to a fair trial.
If the absent spouse has a permanent and/or current address in Bulgaria, the claimant must identify that address in his or her claim.
Failing that, the claimant must provide the address of the spouse’s legal representative in Bulgaria, if any.
If no such representative is appointed at that time, the claimant must provide the respondent spouse’s address abroad, if known.
If the claimant is not aware of such an address abroad, by virtue of s 48(1) CPC he or she may request from the court to serve the respondent by means of a publication of a notice in the State Gazette section for unofficial publications.
If the respondent spouse does not attend court in person, she or he will be appointed with a special representative under s 29(3) CPC for the duration of the proceeding and at the expense of the claimant (*17).
Consequences of the divorce
Most obviously, following divorce, the former spouses cease being married and are free to re-marry.
Possibly more contentious are the financial consequences of divorce. In Bulgaria, unless the spouses have a prenuptial agreement or have elected a so-called regime of separate title, all assets acquired during the marriage by way of joint contributions (*18) are jointly owned by the spouses, regardless of whose name they were acquired in. By contrast, spouses’ individual bank accounts or shares in a corporation and certain other rights are not jointly, but individually held.
There is a presumption in favour of mutual contributions. The contribution can be in the form of labour and capital invested or of care of the children or household work. The presumption of mutual contribution is rebuttable. The divorce terminates this joint ownership and separates title.
Upon termination, where community of property applies, the presumption has not been rebutted and no other weight is shown to be appropriate, the spouses have equal shares of title (*19). A spouse may seek a larger share of the marital assets also if they are allocated a greater share of the exercise of parental rights and responsibilities towards the minor children of the marriage which causes particular difficulties or if their contribution to the joint ownership significantly exceeds the other spouse’s (*20).
In allocating the exercise of parental rights and responsibilities, the courts typically order that the children live with one of the divorcing parents, while the other may have contact with them at certain times. The court also decides on the size of the financial support for the children to be provided by the non-residential parent.
Other consequences include:
- Spouses cease being each other’s heirs, by law or by will;
- Gifts made between the spouses during the marriage may be set aside;
- If the family home cannot be used by both spouses, the court may provide it to one of them depending on needs and other circumstances;
- A spouse may revert back to his or her surname prior to the marriage or may also retain their married name.