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Last update: 06-11-2006
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Divorce - Estonia

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TABLE OF CONTENTS

1. What are the conditions for obtaining a divorce? 1.
2. What are the grounds for divorce? 2.
3. What are the consequences of a divorce as regards: 3.
a) the personal relations between the spouses? a)
b) the division of property of the spouses? b)
c) the minor children of the spouses? (see “Parental responsibility – Estonia”) c)
d) the obligation to pay maintenance to the other spouse? (See “Maintenance Claims – Estonia”) d)
4. What does the legal term “legal separation” mean in practical terms? 4.
5. What are the conditions for legal separation? 5.
6. What are the legal consequences of legal separation? 6.
7. What does the term “marriage annulment” mean in practice? 7.
8. What are the conditions for marriage annulment? 8.
9. What are the legal consequences of marriage annulment? 9.
10. Are there alternative non judicial means for solving issues relating to the divorce without going to court? 10.
11. Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment? 13.
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State country recognised in Estonia? 14.
15. To which court should I turn in Estonia to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases? 15.
16. Which is the applicable law in a divorce proceeding between spouses who do not live in Estonia or who are of different nationalities? 16.

 

1. What are the conditions for obtaining a divorce?

A divorce can be petitioned for at the vital statistics office or a court.

The vital statistics office may grant a divorce upon agreement of the spouses on the basis of a joint written petition, i. e. by the common agreement of the spouses.

A court may grant the divorce at the request of either spouse if the spouses disagree about the divorce or the conditions thereof.

There is no condition of prior separation in either case.

2. What are the grounds for divorce?

If divorce is petitioned for at a vital statistics office, the common agreement of the spouses about the divorce and all matters relating thereto is the only ground for granting the divorce.

In case a court is competent to decide upon granting the divorce, the court must ascertain that continuation of marriage is impossible (i. e. , irreparable breakdown of the marriage).

3. What are the consequences of a divorce as regards:

a) the personal relations between the spouses?

The divorce as such has no immediate consequences as regards to personal relations between the spouses. A spouse who had changed his or her surname upon marriage may according to his or her wish retain the surname taken upon marriage or resume his or her pre-marital surname.

b) the division of property of the spouses?

In case of the statutory marital property regime, the spouses are not obligated to wind up their property relations and divide their joint property upon divorce. The joint property of the spouses may be divided either during marriage, upon divorce or after the divorce. The status of the joint property of spouses is determined either as of the date of the division or the date of factual termination of the conjugal relations of the spouses.

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In case division of the joint property is not carried out upon divorce, the statutory marital property regime continues to govern the relations of the spouses regarding property acquired during the marriage.

In case the spouses have signed a marital property contract, the contract will terminate upon divorce. Upon termination of the marital property contract due to divorce, the rights and obligations arising from the marital property contract extinguish. The property is to be divided according to the marital property contract.

c) the minor children of the spouses? (see “Parental responsibility – Estonia”)

The divorce as such has no immediate consequences as regards to the parental responsibilities of the spouses. Upon request of one of the spouses, the court shall resolve disputes relating to the child or maintenance together with the divorce. Both parents normally retain full custody rights even after divorce. They are expected to agree on the residence of the child as well as on how the parent living apart from the child shall carry out his or her parental responsibility. In the absence of an agreement, a court shall settle the dispute.

The maintenance claim may be brought against a parent irrespective of the divorce, in case the parent fails to perform his or her duty to provide maintenance to his or her child.

d) the obligation to pay maintenance to the other spouse? (See “Maintenance Claims – Estonia”)

A divorced spouse is entitled to claim maintenance from his or her former spouse:

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if the spouse in need of assistance is incapacitated for work and he/she became disabled or attained pensionable age during the marriage;

during pregnancy and child-care until the child attains three years of age if the child was conceived during the marriage;

if the spouse in need of assistance attained pensionable age or became disabled within three years after the divorce, in case the marriage lasted for at least 25 years.

A further condition for all claims of maintenance from a former spouse is that the financial situation of the obligated divorced spouse allows for provision of maintenance

4. What does the legal term “legal separation” mean in practical terms?

The Estonian legal system does not know the concept of legal separation.

5. What are the conditions for legal separation?

See the previous answer.

6. What are the legal consequences of legal separation?

See the previous answer.

However, there are certain legal consequences for a factual separation (i. e. factual termination of the conjugal relations of the spouses). If the conjugal relations of the spouses have in fact ceased, the property acquired by either spouse after the date of factual separation shall not be governed by the statutory marital property regime.

7. What does the term “marriage annulment” mean in practice?

Marriage annulment is not a widely used instrument in Estonian family law practice. It is far less common than divorce.

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Marriage annulment can be decided only by the court and only on grounds listed exhaustively in the law.

8. What are the conditions for marriage annulment?

A marriage may be annulled in the following cases:

marriage was contracted in violation of the legal age of marriage (i. e. a spouse was under 18 years of age and did not have the consent of his/her legal representative, or the court, respectively) ;

marriage was contracted between persons of whom at least one was already married;

marriage was contracted between direct ascendants and descendants, brothers and sisters, half-brothers and half-sisters, adoptive parents and adopted children, or between children adopted by the same person;

marriage was contracted between persons of whom at least one has been placed under guardianship due to his or her restricted active legal capacity (unless the person with restricted active legal capacity had a consent to marry from his/her legal representative) ;

if an ostensible marriage was contracted;

if consent for marriage was obtained against the will of a prospective spouse by fraud or duress.

9. What are the legal consequences of marriage annulment?

Marriage annulment means that the marriage is considered void from inception. Persons whose marriage has been annulled do not have any rights or obligations with respect to one another arising from the marriage.

The provisions of common ownership apply with respect to the property acquired jointly by the spouses during the void marriage. In the case of a dispute, a court shall specify the shares of the co-owners.

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If a marriage is annulled for the reason that one of the prospective spouses concealed from the other prospective spouse the fact that he or she was already married, or influenced the other spouse to marry by fraud or duress, the court may order support for the person who was in a void marriage with him/her. At the request of the manipulated person, the court may apply the provisions governing the statutory marital property relations (i. e. , the joint property of spouses) when dividing the property acquired during the void marriage.

Children born of an annulled marriage have the same rights and duties as children born in a marriage.

10. Are there alternative non judicial means for solving issues relating to the divorce without going to court?

As indicated under No. 1, a marriage may be divorced in the vital statistics office instead of a court. The legal consequences of divorce (e. g. the division of marital property) may be settled by the agreement between the divorcing spouses.

However, in case a dispute arises relating to the divorce, the vital statistics office is not competent to settle it.

There are no state-supported alternative non-judicial means for solving issues relating to the divorce.

11. Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?

Applications for divorce may be filed:

at the vital statistics office of the place of residence of either spouse;

at the court of first instance (the city or county court) of the place of residence of the respondent. A divorce action against a person who pursuant to the established procedure has been declared to be missing or divested of active legal capacity, or against a person who has been sentenced to imprisonment may also be filed with the court of the residence of the plaintiff. A divorce action may also be filed with the court of the residence of the plaintiff if minor children reside with the plaintiff.

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Applications for marriage annulment are to be filed at the court of the residence of respondent.

When applying for divorce at the vital statistics office, the divorcing spouses must file a joint written petition for their marriage to be divorced. They must confirm that there are no disputes between them regarding the children, the division of the marital property and the payment of maintenance.

When filing a claim for divorce or marriage annulment at a court, the claim must conform to all formal requirements for a civil action set out in the Code of Civil Procedure. A statement of claim and documentary evidence must be submitted to the court in Estonian in written form. If a written petition, appeal or documentary evidence submitted to the court by a participant in the proceeding is not in Estonian, the court may demand a certified translation of the petition, appeal or documentary evidence by a specified due date. If the translation is not submitted by the due date, the court may disregard the petition or the document. Petitions, statements of claim, appeals, appeals in cassation, appeals against rulings and written answers must be filed with the courts in legible typewritten form in A4 format.

The claim must include the name of the court, personal information concerning the applicant and the defendant (the spouses) as well as their common minor children, and the clearly expressed quest of the applicant. The claim must contain the facts on which the action is based; the claimant has to list and produce the evidence in his/her disposal in the statement of claim.

In addition, a statement of claim for division of joint property shall set out the composition and location of the property, the assessment of the plaintiff as to the value of each object and a proposal for the division of joint property. If the spouses have entered into a marital property contract, it shall be annexed to the statement of claim.

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A statement of claim must be signed by the plaintiff or his/her representative. A representative shall annex the authorisation document or other document which proves his or her authorisation.

Documentary evidence, listed as an annex to the statement of claim shall be annexed to the statement of claim. A statement of claim and annexes thereto shall be filed with the court together with one copy of the statement of claim and the annexes for each defendant and third party.

A state fee of 300. - EEK ist due upon filing an application for divorce. Upon the filing of a statement of claim for division of property in a divorce case, the state fee of 2600. - EEK is due. Actions for maintenance are exempted from the state fee.

12. Can I obtain legal aid to cover the costs of the procedure?

The court may, fully or partially, release a natural person from payment for legal assistance and to charge the advocate’s fees to the state if the court finds that the person’s financial situation does not allow him/her to bear the costs of the proceedings.

13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?

Yes. It is possible to appeal against a decision relating to divorce or marriage annulment according to the general provisions governing the appeal proceedings, if the appellant finds that the judgment made in the first instance contains errors (e. g. the court of first instance has applied the law incorrectly or the provisions of procedural law have been violated).

14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State country recognised in Estonia?

In the first order, the order of recognition of a foreign decision may be based on an international agreement to which Estonia is a party. According to an international agreement, separate proceedings for recognition may be unnecessary. In 2002, Estonia acceded to the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations.

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If there is no international agreement concerning recognition of decisions in family matters in force between the Member State concerned and Estonia, the applicant must turn to the City Court of Tallinn (address: Liivalaia 24, Tallinn) to have the decision recognised. The application for recognition is heard according to the procedural provisions governing non-contentious matters.

The application for recognition must be in writing and the following documents must be attached thereto:

a copy of the decision, certified pursuant to the law of the state of the location of the court or the arbitral tribunal which made the judgment, and an official confirmation regarding the entry into force of the decision;

a document which confirms that the defendant who did not participate in the divorce or separation proceedings was served a summons in due time pursuant to the law of that state on at least one occasion;

certified translations into Estonian of the documents.

The decision on divorce or legal separation, made by a foreign court or by some other agency, shall be recognised, if:

under the law of the country making the decision it is not possible to appeal against the divorce or legal separation;

under Estonian law, the court or other agency of the foreign country was competent to decide upon divorce or legal separation;

the defendant who did not participate in the court proceedings was served a summons in due time pursuant to the law of that state on at least one occasion;

The divorce proceedings in Estonia were not instituted prior to institution of the proceedings in the country for whose decision on divorce or legal separation recognition is sought;

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The decision on legal separation is not contrary to the decision on divorce, previously made or recognised by Estonia

  • The divorce or legal separation shall also be recognised, if:

    the countries of the residence of both spouses recognise the divorce or legal separation or

    both spouses agree with recognition in Estonia and

    the defendant who did not participate in the proceedings was served a summons in due time pursuant to the law of that state on at least one occasion and;

    the divorce proceedings in Estonia were not instituted prior to institution of the proceedings in the country for whose decision on divorce or legal separation recognition is sought.

    The court may refuse to recognise the divorce or legal separation, if recognition would manifestly be contrary to the essential principles of the Estonian law (public order).

    15. To which court should I turn in Estonia to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?

    The court ruling stipulates the procedure and term of appeal. The appeal shall be filed with the court that made the judgement within 10 days as of public communication of the ruling or if the ruling was made without summons to court of the parties, the term of appeal shall be considered commenced as of service of the ruling.

    Petitions for recognition of a foreign decision not governed by an international agreement are heard at the City Court of Tallinn. A potential opponent to the recognition shall be involved in the proceedings as an interested person on motion of the court hearing the petition. As indicated under No. 14, recognition of foreign judgements is carried out under the procedural provisions governing non-contentious matters.

    16. Which is the applicable law in a divorce proceeding between spouses who do not live in Estonia or who are of different nationalities?

    A divorce is governed by the law of the state where the common residence of the spouses is situated at the time of commencement of the divorce proceedings. If the spouses reside in different states but have the same citizenship, the divorce is governed by the law of the state the citizens of which the spouses are. It the spouses reside in different states and have different citizenship, the divorce is governed by the law of the state of their last common residence if one of the spouses still resides in such state. If the law applicable to the divorce cannot be determined according to the aforesaid rules, the law of the state with which the spouses are otherwise most closely connected applies.

    If a divorce is not permissible pursuant to the law as specified above, or is permissible only under extremely strict conditions, Estonian law applies instead if one of the spouses resides in Estonia or has Estonian citizenship or had Estonian citizenship at the time of contraction of the marriage.

    Further information

    « Divorce - General information | Estonia - General information »

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    Last update: 06-11-2006

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