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What entails disputed and undisputed divorce

Unfortunately, divorce is currently a very common way of ending a marriage. Many married couples are going through this difficult stage of their lives, who, for various reasons, have come to the decision that they do not want to continue in this union. In the case of divorce, of course, a common consensus is the best solution. The effort to actively communicate with the aim of agreeing on the terms of the divorce is therefore an ideal option to prevent unpleasant conflicts and lengthy divorce proceedings. However, joint agreement of the spouses is not always possible. From a legal point of view, therefore, we distinguish between disputed and undisputed divorce, the differences of which we will briefly explain to you in this article.

1. Conditions of undisputed divorce

If the spouses agree on a divorce, it is an undisputed divorce in which the court does not determine the existence and causes of the divorce. The precondition for this type of divorce is that both spouses agree with the divorce. In practice, the procedure is in accordance with the provision 757 of the Civil Code, where the spouses file a joint petition for divorce, or one of them files a petition and the other spouse joins the petition afterwards. This proposal must be in written form. In the case of an undisputed divorce, the court only finds out whether the identical statement of the spouses about the intention to obtain a divorce is true and whether all the conditions stipulated by law are met. The first of these conditions is that the marriage lasts for at least one year and at the same time that the spouses do not live together for more than six months. By setting this condition, the law seeks to prevent reckless divorces. It is also necessary to have a court-approved agreement on the adjustment of relations with a minor child, if the spouses have a child together. At the same time, it is necessary to have an agreement on how the property relations will be settled after the divorce. The agreement may also concern the settlement of the joint property of the spouses, or regulate housing after divorce or maintenance of the divorced spouse. In this regard, the spouses may agree at their own discretion.

2. What the court examines in the case of disputed divorce

In the event of non-compliance with the conditions of an undisputed divorce, the marriage cannot be divorced in this way, and it is therefore necessary to proceed through the disputed divorce. The same applies if one of the spouses does not agree with the divorce or there is no common agreement between the spouses on the settlement of their property relations or the care of minor children. The disputed divorce is regulated in the provision 755 of the Civil Code, where the qualified dissolution of the marriage is expressed as its presumption, which means that the cohabitation of the spouses is deeply, permanently and irreparably broken and its renewal cannot be expected. The court that decides on divorce in this way must find out the existence of this divorce and its cause. However, this is not a finding of guilt, ie a search for who more or less caused the divorce. The court hears out the spouses, and in a situation where both spouses understand the divorce, their divorce is only a formal matter. However, it is true that the reasons for the deep and permanent disruption of the marriage will have to be stated for the court in order to decide on the basis of these allegations. As this is often sensitive information, this aspect of a disputed divorce can be unpleasant for many couples.

The depth of divorce can be inferred if the spouses have not lived together for a long time. This aspect is not linked to the existence of a common residence. Spouses can live in the same house, but practically do not live together if, for example, everyone lives separately in their own room. Conversely, spouses may live separately but still live together. For example, if both live in a different apartment due to commuting to work but they still manage finances together. Living together is reflected not only in living together, but in sharing common joys and problems, spending free time together and, above all, managing financial resources. The permanence of a marriage breakdown is then determined by how long the marital cohabitation is broken up. The irreparability of the divorce caused by it is then assessed, taking into account the willingness of the spouses to restore their cohabitation. If these three preconditions are fulfilled, it means that the marriage as a permanent union has been definitively terminated and there is no room for reconciliation.

3. Filing a petition to the court

As mentioned above, the application for divorce must be in written form. It must also meet all the lawful requirements. Information on what the petition should contain, to which court the petition is filed and an overview of the amount of court fees for filing the petition can be found on the website. Following the filing of the petition, the court summons both spouses, initiates proceedings and hears them within it, or takes evidence. The court will also objectively assess and organize the disputed aspects of the divorce between the spouses on the basis of the alleged facts. In general, we recommend that you appear in a courtroom summons even if you do not agree with the divorce petition. In this case, you will have the opportunity to appeal against the court’s decision within the statutory time limit. The result of the proceedings is a judgment divorcing the marriage. As soon as this judgment reaches legal force, the marriage is divorced.

We understand that the issue of divorce is complex. Our law firm is therefore available for legal advice if you are currently going through a divorce. At the same time, we will help you prepare the necessary documents and filings to the court, or the agreements necessary for the settlement of matrimonial matters.

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This issue is dealt with by JUDr. Iva Repa Kremplová, write us a message and we will get back to you.

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