Our law office provides legal consultations and representation during the contested divorce – a procedure that is quite emotional for the parties. The information provided below will help you find more about this procedure.
Before to start the procedure of the contested divorce, the parties most likely have tried to reach an agreement via the divorce by mutual consent, but this attempt has failed. If such attempt was not made, we advise our clients to negotiate with the other party and to try to agree about divorce by mutual consent /more information about the benefits of this procedure is provided in the article “Divorce by mutual consent”/. In case that divorce by mutual consent is not possible, then according to the art. 49 of the Family Code of Bulgaria: “Each of the spouses may demand a divorce if the marriage is deeply and irreparably upset.” This article makes it clear that the legislature has explicitly stated the ground for submission of the application for the divorce, but namely: the marriage should be deeply and irreparably upset. There is no legal definition of a deeply and irreparably upset marriage but the usual practice is that there should be a totality of facts and circumstances due to which the marriage can no longer exist. The Court considers those facts and after their proving the Court makes a decision about whether the marriage is deeply and irreparably upset or not, and whether it should be terminated. The person who starts the divorce case is called the plaintiff and the person against whom the case is held is called the defendant.
The plaintiff prepares and submits a statement of claim, which must meet the requirements of the Civil Procedure Code and to include: details of the parties; their addresses; description of the actual situation and the facts confirming that the marriage should be terminated; evidences; the essence of the claim; paid state fees and etc. The plaintiff must state all the facts proving the deep and irreparable breakdown of the marriage. If some ground was not mentioned during the process, and the court did not make a decision on divorce, this same ground cannot be used for submitting of a new claim /art. 322, para. 1 of the Civil Procedure Code/. The claim must include requirements about use of the marital property, alimony between spouses and family name. In case the couple has children, the claim must also include requirements regarding parental right, personal relationships and alimony for the children.
The statement of claim is submitted to the District Court relevant to the permanent address of the defendant. There are no obstacles the claim to be submitted to the District Court selected by the plaintiff but the defendant has the right to make an objection about this choice in its reply to the statement of claim and the case will be transferred to the appropriate court. This right is lost by the defendant if he does not use it in his reply to the statement of claim.
After verification of the regularity of the claim by the court the claim along with all the evidences attached is sent to the defendant for response. Serving of the claim is essential for the following proceedings. There is a special procedure for serving via the State Gazette of Bulgaria if the claim cannot be served to the defendant, as serving followed by the appointment of a special representative. If the defendant is a foreign national, there is no obstacle the claim to be sent abroad.
The defendant has the right to respond in written within 30 days after receiving of the claim. In his written reply the defendant must provide evidences proving his statements and arguments. He may also require testimony of witnesses, expertise and other procedures for collecting of evidences in his respond.
Upon receiving of the respond or after the expiration of the term for response the Court prepares a definition in which it reports the parties about the received claim, the respond, approved evidence collection procedures and specifies the burden of proof of each party. The court appoints the date of the court hearing and sends the report to the parties together with the notification about the hearing.
According to the art. 321 (1) the Civil Procedure Code the parties must personally attend the first hearing. The court case is terminated in case of non-appearance of the plaintiff without a valid excuse. Although it is explicitly specified that both parties should attend the hearing personally the usual practice is the case to be held in case of appearance only of the plaintiff. The idea of the personal presence of the parties comes from the old Family Code, according to which the court had to try to reconcile the parties /before the change of the Family Code there was one conciliation meeting in the procedure of the divorce on mutual consent/. Presently the only obligation of the plaintiff is his personal presence at the hearing /despite that our law office has faced court decisions on cases in which the plaintiff did not appear personally but was represented by his lawyer/.
During the court session the parties can achieve an agreement on the divorce and ask the court to confirm their divorce decision /in this case the procedure is transformed into a divorce by mutual consent/. If such agreement was not achieved, each party must provide its evidences and the plaintiff is the one who has to prove to the court that the marriage was deeply and irreparably upset, that it brings no profit for the parties and the society, cannot continue and must be terminated. The parties may request the court to make a decision about the guilt for the divorce as the consequences of such decision is that the guilty spouse will have to pay all legal costs of the other spouse. The court does not make the decision on the fault in the line of duty but only on request of one of the parties. If there is no decision about the guilt for the divorce the costs are divided in a manner they were paid by the parties. If the court has to make a decision about parental rights then a representative of the Social Assistance Directorate should take part in the process and to prepare a social report.
The Court takes into consideration all provided evidences and makes a decision about divorce if it is convinced in the plaintiff’s statements.
The decision can be appealed within 14 days of its receipt.
It becomes clear from the present article that the contested divorce is a special court preceding that should be prepared and develops depending on the individual case. As it was mentioned above if the divorcing parties have children the case should solve issues related to parental rights, the regime of personal relationships and child alimony. Collecting of appropriate evidences determines the outcome of such case, which is why we advise the parties in contested divorce to entrust to an experienced lawyer in order to achieve the desired result.
The present article does not represent a legal advice but a general theoretical essay on a specific legal issue. ID Law office is not liable in case of a misunderstanding of the information provided in this article.
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