Divorce of an international marriage

Divorce of a marriage is usually a complex and emotionally demanding process, especially in cases of an international divorce - for example, where one or both spouses are of different nationalities. Moreover, in today's globalised era, this situation is increasingly common. The options and procedure in international divorce proceedings require an individual legal assessment that takes into account all aspects of the case.

In the case of divorces of international marriages, two issues need to be addressed primarily: - What court can rule on the divorce? Can it be a Czech court? - What law will govern the divorce? Czech law or another law?

Depending on the answers to these questions, there may come to a situation where, for example, a Czech court will decide the divorce under the law of a foreign state.

When will the Czech court have jurisdiction?

In the case of an international divorce, there are two basic situations for determining the jurisdiction of the Czech court:

1. The spouses are citizens of or permanently resident in a state of the European Union

Within the EU, jurisdiction is established by the Brussels II ter regulation¹, which came into force in August 2022. In short, the competent court for an international divorce is the court of the country where:

• the spouses are habitually resident, or where they were last habitually resident if one of them still resides there,
• the defendant, i.e. the spouse who has not filed for divorce, is habitually resident,
• at least one of the spouses is habitually resident if a joint application for divorce has been filed,
• the plaintiff is habitually resident if he or she has lived there for at least one year, or 6 months if he or she is also a national of the country.

At the same time, there is a logical principle that says that the court of which both spouses are nationals has jurisdiction.

For example, when a Czech husband and a Spanish wife (who have lived together in Italy for a long time, but the husband has just now moved to England) want to divorce, then the Italian court will have jurisdiction. However, if the spouses were both Czech citizens, the Czech court would have jurisdiction even though both spouses are or have been residents of Italy for a long time.

2. One of the spouses is a foreigner who does not live in the EU

If one or both spouses are non-EU citizens and do not live in the EU, the situation becomes more complex due to the different legal arrangements in each country.

For example, Czech legislation provides that Czech courts have jurisdiction if:

• one of the spouses is a citizen of the Czech Republic
• the defendant is habitually resident in the Czech Republic.

At the same time, a Czech court may dissolve a marriage between two foreigners even if the defendant is not habitually resident here, for example, if the plaintiff is habitually resident here and the other spouse has joined the petition for divorce.

Please note here that international treaties between states take precedence over national legislation. As an example, we refer to the treaty between the Czech Republic and the Russian Federation², which provides that if one spouse has Russian citizenship and resides in Russia and the other spouse has Czech citizenship and resides in the Czech Republic, the courts of both countries will have jurisdiction.

What is the applicable law in the event of a divorce?

Another important question that foreign spouses need to ask themselves before filing for divorce is which law to follow when preparing divorce documentation and which lawyers to contact. This is crucial not only for the course of the divorce proceedings, but also for the matrimonial property regime or for the decision on the custody of minor children, which may vary from country to country.

The Czech Republic is not a signatory to the 2010 EU Regulation on enhanced cooperation in divorce, the so-called Rome III³. Therefore, the determination of the applicable law is determined by the Private International Law Act⁴, which establishes the following rules:

• The divorce is governed by the law of the state which governs the personal relations of the spouses at the time the proceedings are initiated.
• The personal relations of the spouses shall be governed by the law of the state of which they are both citizens.
• If the spouses are citizens of different states, their personal relations shall be governed by the law of the state in which both spouses are habitually resident, otherwise by Czech law.

However, international treaties shall prevail over this regulation. In particular, the aforementioned treaty between the Czech Republic and Russia provides that if one of the spouses is a citizen of Russia and the other of the Czech Republic, the law of the country in whose court the divorce is pending shall apply. This principle helps to ensure the consistency of the entire judicial process by excluding the application of the law of the country in which the divorce proceedings are not taking place.

How to proceed if the foreign spouse is not traceable?

It may come to the situation when one of the spouses wishes to file for divorce but does not know the whereabouts of the other spouse and is not in a position to find out. Even in such a case, a divorce can occur.

The court appoints a guardian, usually a law firm, to represent the spouse whose whereabouts are unknown. The guardian may submit evidence on behalf of the other spouse in the proceedings and may file appeals. However, since the guardian is also usually unable to find out where the other spouse is, the procedure is relatively quick and the decision out the court is usually not appealed.

Are you going through a divorce with a foreign spouse? Do not hesitate to contact us, we will be happy to guide you through the entire process and ensure the best possible outcome for you.