Divorcing
The term "marriage" means both the constitutive act of it, as well as the legal relationship resulting from its performance. With regard to the first, it is unanimously accepted that this is, by its legal nature, a legal transaction and in particular a contract of private law. Regarding marriage, as a legal relationship, according to the prevailing theory it is primarily private in nature and the state's interest is exhausted in its protection. The regulation of matrimonial matters is the subject of Family Law, which in turn forms part of our Civil Code. Among other things, it regulates the performance of the marriage, its nullity, its annulment, but also the issue that we will consider next, namely the dissolution of the marriage.
Undoubtedly, marriage in every society is perhaps the most important legal relationship of every human being, as it is the relationship he develops with his partner, from which, in the natural course of things, his children will also come. Marriage, however, is also a legal relationship, which is de facto dissolved at some point for one of two reasons, which will be developed later.
In particular, the first reason for dissolution of marriage is the death of one of the two spouses. The death of one spouse dissolves, that is, abolishes the marriage for the future, because, as is understandable, the legal relationship of marriage is strictly a personal matter and it is natural that it automatically and automatically ceases to exist, as soon as the person of one spouse disappears. Therefore, unlike other legal relationships, which are not affected by the death of one party, marriage is dissolved by the death of one spouse and this is done without further formalities and without the need to mediate the issuance of any Court decision.
Of course, the dissolution of marriage, due to the death of one spouse, is the natural conclusion of the legal relationship of each marriage. Nowadays, however, problems are often observed in the married life of people, as a result of which numerous marriages are dissolved "prematurely" by the second way of dissolving the marriage, that is, by issuing a divorce. Irrespective of whether it is a civil or religious marriage, the issuance of an irrevocable Court Decision is required and sufficient for its resolution by divorce. "Required" means that the marriage cannot be dissolved other than by a Court Order. It is not enough for the spouses to agree, nor for living in different houses, but a Court decision is required and indeed an irrevocable one. Thus, if two spouses are separated in practice and leave each other but no Court Order intervenes, they will continue to be considered and legally married until their death, so that all the effects of the marriage remain active. "Enough" means that, apart from the issuance of an irrevocable Court Decision, no other wording is required for the dissolution of the marriage. Even the "divorce", issued by the metropolitan, may be needed for the performance of a new religious marriage, but in no case is it required for the dissolution of the first marriage, which occurs only with the issuance of the Judicial Decision, which pronounces the dissolution of.
Our Family Law recognizes two ways of divorce, consensual divorce and contested divorce. The first is simply based on the agreement of the spouses, to dissolve their marriage regardless of the existence of any reason, while the issuance of the second requires the assistance of some reason from those listed in the Civil Code.
As for the consensual divorce, it is issued by the Court following a joint application of the spouses, in which application the spouses must express their joint will to dissolve their marriage, regardless of the reason. The simplicity and ease of this way of divorce is obvious and for this reason the Law has put some "safeguards" in consensual divorce to avoid hasty and frivolous decisions, which are sometimes taken "in the heat of the moment". Thus, according to the definitions of the Law, in order to issue a consensual divorce, the marriage must have lasted at least six months before the filing of the divorce petition. This provision is protective for new couples given that married cohabitation changes people's lives, with the result that many times the first problems of marriage lead new couples to the easy and uncritical decision of separation. In addition, and with the aim of protecting any minor children, the Law stipulates that, in order to issue a consensual divorce, there must be a written agreement of the spouses, which regulates the issue of the custody of the minor children and the issue of communication with them. Only under the aforementioned conditions is the consensual divorce issued, which otherwise dissolves the marriage automatically, without requiring the invocation of any reason, concerning one or the other spouse.
About
uncontested divorce it is worth noting that, in order for this to be issued, one of the spouses, who will file the lawsuit, must claim and prove that the relations of the spouses have been so strongly shaken, due to a reason that concerns his person defendant spouse or both, so that the continuation of the married life is reasonably unbearable for the plaintiff. In fact, the only reason for an uncontested divorce is the strong shock of the marriage, which must be due to the behavior of the defendant or both spouses. Therefore, there is no concept of divorce on the grounds that I "got tired" of my husband, for example. Nor can a divorce be granted on the grounds that "I no longer want my marriage". In order for the divorce to be issued, there must be a clear reference to the shocking events of the marriage, and in fact these events must not be attributed solely to the behavior of the plaintiff. Since of course the concept of a strong shock is relatively vague and can be interpreted in many ways, the law itself has defined behaviors that constitute a strong shock to the marriage. Such acts standardized in law are bigamy, adultery, desertion of the plaintiff, and taking the life of the plaintiff by the defendant. When there is one of the above four behaviors by the defendant, then the strong shock is presumed under the Law and now the divorce will be issued. The only way for it not to be issued is for the defendant to prove (a difficult thing) that, although he engaged in this behavior, the marriage was not shaken. Along with the aforementioned cases, in which, as previously mentioned, the defendant has the possibility of counter-evidence for the shock of the marriage, there are also two cases, which, if they occur, then the divorce is issued after certainty, because a strong shock is considered according to the Law proven, without the possibility of opposition and counter-evidence on the part of the defendant. The first of these cases is the continuous two-year separation of the spouses and the second case is that one of the spouses has been declared in obscurity, due to his absence for a long period of time without it being known whether he is alive or not. When one of the two cases occurs, then the strong shock is irrefutably presumed, according to the definitions of the Law, and the divorce is issued based on it.
With the development of the issues of dissolution of marriage, which preceded, an attempt was made to quote the basic provisions of our Family Law for the issue under consideration. It has already been realized that our legislative framework protects the legal relationship of marriage, as the consensual divorce is issued simply and quickly, but nevertheless some conditions are required to avoid frivolous decisions, and the contested divorce definitely requires a strong shaking of the marriage specific and proven, so that the concept of divorce is not circumvented. On the other hand, of course, our Law also protects the spouses themselves, as for a consensual divorce the expressed common will of the spouses is sufficient, while for an uncontested divorce the Law has recognized certain behaviors and situations as marriage-shattering cases , so that each spouse does not remain trapped in a marriage, which is really unbearable for him.
Alexandros G. Tsapelis, Lawyer