In the autumn of 2023, the Ministry of Justice introduced a long-awaited amendment to Act No. 89/2012 Coll., the Civil Code (hereinafter the “CC“), together with amendments to other, mainly procedural regulations. This forthcoming amendment (hereinafter the “Amendment“) aims to speed up, streamline, and make cheaper the so-called uncontested divorce procedure. The Amendment has already successfully passed the first reading in the Chamber of Deputies of the Parliament of the Czech Republic on 9 July 2024 and is now awaiting the September discussion in the Constitutional Law Committee.
The Amendment is scheduled to come into force in January 2025 and should bring long-awaited changes to the Czech divorce procedure and related procedural and substantive law institutes. For many years, the existing legislation has been considered outdated and unnecessarily complicated, which in practice has had a significant negative impact on divorce procedure. The often-inadequate length of the court proceedings, unnecessary procedural obstacles, as well as the need to deal with the adjustment of minor children’s matters separately from the divorce, are the main problems that the new legislation aims to eliminate and make the whole procedure more efficient.
Divorce – the new simpler and faster way
One of the key changes brought about by the Amendment is the proposed abolition of the general requirement to investigate the causes of the breakdown of the marriage as provided for in Section 756 of the CC. This requirement should continue to be retained only in specific, statutorily defined cases. Although the Amendment does not change the general requirement for the existence of a breakdown of the marriage, which the court is thus still required to determine, the Amendment contains some partial modifications in this area as well. In the case of a mutually-agreed divorce, i.e. if both spouses agree to the divorce and have agreed on all related matters (so-called uncontested divorce), the courts will no longer investigate even the existence of the breakdown of the marriage, as is the case now. The Amendment also comes with more lenient conditions for an agreed divorce, planning to abolish the requirement for the spouses to live separately for more than six months.
To speed up the entire procedure, the Amendment also proposes a modification of Section 389(1) of Act No. 292/2013 Coll., on Special Court Proceedings (hereinafter the “SCP“), consisting in dispensing with the questioning of the spouses not only if the questioning would involve great difficulties, but also if the spouses’ consent to the divorce and the agreement on the permanent, deep and irretrievable breakdown of their marriage is evident from written submissions or identical statements of the parties at the hearing, the authenticity and veracity of which the court has no doubts.
To simplify and speed up the divorce procedure and in connection with the preference for uncontested divorces, the Amendment also introduces differentiated court fees. If the spouses agree on the circumstances of the divorce, they will pay a lower court fee of CZK 2,000. On the other hand, in the case of a contested divorce where there is no agreement between the spouses and the court must decide on the fundamental issues, the fee will be CZK 5,000. The purpose of this difference is to motivate the spouses to reach a mutual agreement and thus speed up and simplify the whole divorce procedure.
Joinder of divorce and adjustment of minors’ relations proceedings
In the procedural aspect of divorce proceedings, the most significant innovation is the proposed joinder of the proceedings on the adjustment of the minor child’s matters after the divorce with the proceedings on the divorce of marriage. According to the new draft provision of Section 398a of the SCP, if the spouses have a minor child in common, the divorce proceedings will be joined with the proceedings in which the post-divorce adjustment of the child’s matters is to be decided. However, such a joinder will not take place if the court of first instance has already given a decision on the merits of the case. The power of the court to exclude a part of the case for separate proceedings is also to be retained if it does not consider it appropriate to join the two proceedings.
Another novelty is the introduction of a completely new institute of interim decision,[1] which is to supplement the existing interim measure in terms of the provisional adjustment of the minor’s matters. This institute is intended to enable the court to make a temporary adjustment of the minor’s matters in cases where intervention in the form of an interim measure is not necessary, but where it is in the minor’s interest that his situation be temporarily adjusted. In such a case, the court will issue an interim decision considering the agreement of the parents. Interim decisions will not be issued under time pressure, as in the case of interim measures, which the courts have a deadline of only seven days to issue, and will have a longer-term effect.
Furthermore, it should no longer be obligatory for the minor child to be represented by a conflict curator in every situation, especially in cases where the court finds no conflict of interest between the parent and the child, and the child does not request a curator. The result should be to free up the capacity of the child social protection authority for more complex cases requiring the intervention of a conflict curator.
Physical punishment and care of minor children
One of the much-discussed changes introduced by the Amendment is the extension of the concept of inadmissible educational means. According to the proposed amended wording of Section 884(2) of the CC, it is to be newly explicitly stated that physical punishment, infliction of mental hardship, or other humiliating measures are contrary to the human dignity of the child. The Amendment responds to the international obligations of the Czech Republic, which require more precise legal regulation of situations where the physical punishment of children exceeds a tolerable and acceptable limit. The aim is to contribute to a uniform interpretation that any physical punishment interferes with the human dignity of the child and is therefore unacceptable.
In this context, the existing provision of Section 858 of the CC, which defines the basic rights and obligations of parents in the context of parental responsibility, is to be supplemented by the obligation of parents to care for the child without physical punishment, mental hardship, and other humiliating measures. The aim of this change is not officially to sanction parents for any physical discipline of the child, but to encourage the use of other educational means and methods. The fact is, however, that any use of physical punishment, even if only marginal, will thus formally become a breach of the parent’s legal obligation, which may be of considerable importance for the court’s eventual decision-making on the adjustment of the minor’s matters.
Another significant change to be brought about by the Amendment is the abolition of the current distinction between the various forms of child care as set out in Section 907 of the CC, i.e. care of one of the parents, shared care and joint care. The court should now be able to decide that the child will remain in the care of both parents if they agree, and only if the parents do not agree will the court determine the extent of care of each parent and decide on the maintenance obligation.
Assignment of a maintenance claim
The proposed new provision of Section 921a of the CC, if the Amendment is approved, would bring the possibility of assigning a payable maintenance claim to a third party. This addition is intended to improve the position of beneficiaries whose maintenance is not duly paid and to allow them to have their claim taken over by someone else for payment. This mechanism could be particularly useful in cases where the obliged, although sufficiently solvent, refuses to pay maintenance for personal or other purely subjective reasons, for example, because of animosity towards a former spouse. The Government should also be empowered to issue a regulation fixing the amount of default interest to be paid on late payment of such a debt. The obliged who fail to pay maintenance on time could thus face additional financial penalties with incentive effects for proper and timely payment.
This arrangement would enable beneficiaries, who are often in an economically disadvantaged position, to obtain the funds to which they are entitled more quickly and avoid the often lengthy and costly recovery of maintenance claims. On the other hand, however, it should be noted that one of the reasons for the non-assignability of maintenance claims to a third party that has been in force so far has been to avoid a situation in which maintenance claims are treated as a commercial commodity, often to the detriment of the beneficiaries who, under pressure, prefer to assign the claims for a fraction of their nominal value to a specialised entity, for which, however, keeping the long-term ability of the obliged person to pay future ordinary maintenance will often not be essential. A more aggressive debt recovery may significantly contribute to the departure of several such obliged persons into the underground economy and reporting of minimal or no official income for the calculation of maintenance.
Conclusion
For many years, the legal regulation of divorce proceedings has been neglected, although in many respects it unnecessarily complicates and prolongs the procedure. The aim of the Amendment is not only to speed up and streamline divorce proceedings, especially in the case of so-called uncontested divorces, but also to comprehensively adjust the regulation of the preliminary adjustment of minor children matters, who are affected by divorce not only legally, but above all psychologically, which is not helped by outdated procedural institutes, and on the contrary, often worsens an already unpleasant situation.
The explicit declaration of physical punishment as an inadmissible mean of education has been repeatedly discussed by legislators in the past, but only the Amendment will explicitly enshrine this in the law. However, as with the proposed possibility to assign a maintenance claim, it remains to be seen whether these somewhat controversial innovations will successfully pass the legislative process and how they will then be registered and considered in everyday practice and case law.
We will continue to follow the Amendment’s steps through the legislative process for you. If you have any questions about divorce proceedings or related topics, please do not hesitate to contact us.
[1] Proposed new provisions of Section 465a to Section 465j of the SCP.
PhDr. Mgr. Jan Ptáčník, Senior Attorney – ptacnik@plegal.cz
Mgr. Eliška Vítková, Junior Lawyer – vitkova@plegal.cz
Ráchel Kouklíková, Legal Assistant – kouklikova@plegal.cz
22. 8. 2024