The husband’s refusal to get divorced does not in itself prevent the dissolution of the marriage. If there is no agreement, you can ask the court for a divorce on one of the grounds provided by law and you must support the request with appropriate facts and evidence. The procedure and the effects depend on the specific situation, including whether you have minor children.
Notary, civil status or court?
Divorce at the civil registrar and notarial divorce are agreement-based procedures. The notary can only determine the divorce when the spouses have minor children if there is agreement on all aspects regarding the children and the name after the divorce, and the legal conditions are met. If the other spouse refuses to consent, these options cannot finalize the divorce: you can file a request with the court.
In court, the divorce can be pronounced by agreement if the other spouse agrees during the proceedings. If they do not agree, the judge analyzes the grounds invoked and the evidence.
On what grounds can you ask for divorce?
The Civil Code allows for divorce at the request of one spouse, among other reasons, when grave reasons have seriously harmed the relationships between the spouses and the continuation of the marriage is no longer possible; after a separation in fact of at least two years; or when the health condition of the complaining spouse makes the continuation of the marriage impossible. The choice of the grounds must correspond to the facts and evidence, not just to a preference for an apparently simpler procedure.
For a divorce based on the breakdown of the relationship, the court determines fault based on evidence. If you invoke separation in fact for at least two years, the divorce is usually decided based on the sole fault of the plaintiff; if the defendant agrees to the divorce, no mention is made of the spouses’ fault. These consequences are worth analyzing before filing the application.
Where do you submit the application and what are you preparing?
The rule of territorial jurisdiction is the court of the last common residence, if at least one of the spouses still resides in its jurisdiction. If the conditions are not met, jurisdiction is usually determined according to the defendant’s residence, with the exceptions provided for by the Code of Civil Procedure.
Prepare the marriage certificate, identity documents, birth certificates of the children, if any, and the relevant evidence for the grounds of the divorce: records, messages, witnesses, or other admissible means. The request must also include requests regarding the names after the divorce and, if applicable, the children. Next come the summonses and instructions from the court; it does not assume that your absence from the hearing has no consequences.
If you have minor children
With the divorce, the court decides on measures regarding the children, having as a reference their best interest. The exercise of parental authority, the child’s residence, personal ties with the separated parent and contribution to the costs of raising the child are analyzed. Parental authority generally remains joint; its exercise by a single parent requires valid reasons.
If there is an immediate need, you can request interim measures during the process, under the law, for example regarding the children’s housing, maintenance, or the use of the family home. Divorce does not automatically divide all the spouses’ assets; the division and liquidation of the matrimonial regime may require a separate agreement or steps.
Practical steps
- determines which grounds correctly describe the situation and which evidence supports it;
- the competent court is verified after the last common residence and the current situation of the spouses;
- formulates separately and clearly the requests regarding the children, the names and any provisional measures;
- take into account the effects of choosing the subject matter on the costs and expenses of the trial;
- requests legal advice if there is violence, jointly owned property, children, or residences in different countries.
For information about assistance in matters of divorce and family relations, please consult the page Family law.
Legislation
Civil Code – Articles 373–380 and provisions regarding the effects of divorce on children and Code of Civil Procedure – Art. 915 and following. Check the current form of the law and the specifics of the case before submitting the application.
