Sources of Family Law
Greece is a signatory to the European Conventions on the Adoption of Children and on the Status of Children born out of wedlock (Ratified by Greek L 1049/1980 and 1702/1987), and to the Hague Convention on the Civil Aspects of International Child abduction of 1980 and the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children of 1980 (Ratified in 1992).
Judges specialised in the field of family law hear the family cases in civil courts, courts of appeal consist of judges specialised in family cases sit in the largest cities and review the judgments of the lower courts both on the law and on the facts and Supreme Court sits in Athens and only Reviews questions of law.
Adjudication of disputes
The court adjudicates most of the family matters in an adversarial procedure. The judge decides the cases after hearing the arguments and the facts presented by the parties to the dispute. When there is no dispute, appropriate judicial measures are taken in relation to a person’s legal situation, in such non-contentious cases, the procedure is inquisitorial. The investigations are conducted by the judge himself or herself as it is his or her duty and has authority. All the facts deemed relevant to the particular case, including evidence not presented to him or her by the parties in dispute are considered by the judge.
Lawyers are known as attorneys, there is no distinction between solicitors and barristers in Greece. All attorneys can give advice, negotiate and can act on behalf of the client in proceedings at all levels, including cases before the Supreme Court.
There are legal aid provisions, called ‘benefit of property’ as stated under articles 194-204 of the Code of Civil Procedure. Those who cannot afford to pay court costs or an attorney’s fees are benefited by this provision (benefit of property) of legal aid. This benefit can also be granted to the foreigners in case of reciprocal arrangements. The 1977 European Agreement on the Transmission of the Application for Legal Aid has been ratified (by L 1456/1984) Greece.
This benefit is granted by the judge of the court in which the case is going to be heard, and if there is no trial, by the justice of the peace of the petitioner’s domicile. (If benefit is being claimed by a foreigner, then the decision rests with a justice of the peace in Athens.)
For child abducting proceedings also, legal aid is available. A reservation to the Hague Convention on Civil Aspects of International Child Abduction of 1980 has been entered by Greece, which restricts payment of legal fees to the rates allowed under the Greek legal aid system.
All the applications for legal aid should be made in Greek.
According to article 51 of the Greek Civil Code, domicile is the place of the person’s principal and permanent establishment. If the domicile of a person is not determined, then the place of residence will be considered as his domicile. Several persons have a legal domicile (article 56, Civil Code). Such persons are minors, whose domicile is considered to be that of their parents exercising parental care or, if the minors have no parents, of their guardians as well as persons placed under full privative judicial protection, whose (legal) domicile is the domicile of their judicial protector.
Engagement to Marry
Parties may contract an ‘engagement to marry’ before marriage, which states that they may promise to marry each other, if the following three conditions exist:
(i) capacity to marry;
(ii) conformity to law and morality; and
(iii) consent of the parties.
There are no legal obligations, no formalities and no legal action required to compel the marriage to proceed, an engagement to marry is not obligatory. If a party has suffered a material loss because of the expenses incurred for the expected marriage and there is an unjustifiable breach of promise to marry, then the party who has caused the breach is liable to pay damages to the suffered party. A claim of restitution might lie if the parties have exchanged gifts.
THE CREATION OF VALID MARRIAGE
Marriage is a sui generis contract, in Greek law, which creates a status, namely the condition of being married. Both the parties must possess capacity to marry and must observe the necessary formalities, in order to contract a valid marriage.
Capacity to marry
In order to contract a valid marriage, the following conditions must be satisfied:
(i) One party must be male and the other female. Greek law still regards marriage as a heterosexual relationship. Accordingly, if there is no difference of gender, the marriage will be non-existent. The question of capacity to marry in cases of sex change operations has yet to be resolved.
(ii) Both parties must be over the age of 18. If either of the parties has not reached this age, the marriage will be void. If minors want to marry, they must apply to the court for an exemption. The exemption will be generated if the court considers that the marriage, due to extraordinary reasons, will be in the interest of the minor according to the facts presented by the parties and those exercising parental care.
(iii) Both parties must have the capacity to enter into judicial acts. Minors under the age of 10 (who cannot apply to the court for an exemption), persons who are not conscious of what they are doing or who are incapacitated by mental illness, persons placed under full private judicial protection and persons placed under partial (regarding only the celebration of a marriage) private judicial protection cannot validly marry. Persons who have been placed under subsidiary judicial protection can marry, if their judicial prosecutor (or the competent court) gives consent. Failure to satisfy the above conditions may render the marriage void.
(iv) Neither party can be already married. Since Greek law considers marriage as a monogamous union, neither party may contract a valid marriage, whilst he or she is already married to another woman or man (in which case the second marriage will be void). But a person already married can contract another marriage if the first spouse has died or the first marriage has been annulled or dissolved.
(v) The parties must not be related within the prohibited degrees of consanguinity or affinity. Marriage between persons related o each other by blood, in direct ascending or descending line, or collaterally up to the fourth degree, is forbidden. Affinity (in the direct ascending or descending line, or collaterally up to the third degree) is also an impediment to marriage. A marriage between persons related by blood or by affinity in contravention of these rules will be deemed void.
(vi) The parties must not be related by adoption. Adoptive parents, as well as members of the adoptive family (within the prohibited degrees of consanguinity), may not marry either the adoptive child or his or her relatives (within the same degrees). Two adoptive children of the same adoptive parent may not intermarry. When the person adopted is an adult, there is an impediment to marriage only between the person adopted and his or her adoptive parent. Failure to satisfy these rules may render the marriage void.
A marriage is celebrated either by a civil or religious ceremony in Greece. There is a preliminary investigation for the determination of parties, whether they have the capacity to marry, and to provide an opportunity for those who know of an impediment of the marriage to object, before the marriage is celebrated. A formal notification is posted in the town hall where each of the two parties resides, to facilitate the celebration. The announcement might get published in the newspapers in large cities. Both parties’ names and surnames, their place of birth, their parents’ names, their current place of residence and employment, and the place where the marriage is to be celebrated are included in the announcement. If there is no objection to the marriage by anybody or the objections are overruled, a licence is granted by the mayor or the chairman of the parish of the parties’ domicile (and, in the case of a marriage which is going to be celebrated in church, also by the church), marriage is solemnised after this. The marriage licence can also be granted by a competent court if the mayor or the chairman of the parish refuses to issue the marriage licence.
After the preliminary investigation, the solemnisation of the marriage may take place in the following manner:
IN THE CASE OF CIVIL MARRIAGE
An expressed consent is given by the parties to the mayor or the chairman of the parish, in the presence of two witnesses in a public ceremony. Marriage by proxy is not allowed. A relevant certificate is issued by the mayor or the chairman of the parish, after the celebration of the marriage.
IN THE CASE OF RELIGIOUS MARRIAGE
An expressed consent of the marriage is given to the priest by the parties, where at least one of them is registered. The marriage is solemnised according to the rules of the Greek Orthodox Church, if both the parties are Greek Orthodox. The marriage takes place according to the rules of the faith or denomination, if they belong to another faith or denomination. Marriage by proxy is not allowed. A relevant certificate is issued by the priest, after the celebration of the marriage.
No matter which form of solemnization of the marriage is chosen, the certificate issued is recorded at the Civil Registry of Births, Marriages and Deaths, and this record serves as a proof of the celebration of the marriage.
The marriage is deemed to be non-existent, if there is neither religious nor civil solemnisation of a marriage, or the marriage solemnised in breach of required procedures.
Recognition of foreign marriages
A marriage is recognised as formally valid, if it is celebrated according to the national law of either of the parties, or the law of the place of celebration.
A marriage is valid as to substantive requirements (capacity to marry), if it meets the requirements of the national law of either of the parties.
Non-existent, void and voidable marriages
There are three types of defective marriages: non-existent, void and voidable marriages.
If there is no difference of gender, or if the parties have never been through a ceremony, or the procedure of the ceremony was not correct, then a marriage is deemed to be non-existent. Non-existent marriages are regarded as never having taken place, and can be so treated without recourse to any court judgment annulling them. The court’s power is limited to the making of a declaratory judgment as to the status of the parties, and to the non-existence of their marriage, if the marriage is non-existent.
If either party lacks capacity to marry (with the exception of the requirement of difference of gender, the lack of which renders the marriage non-existent and not merely void), the marriage will be void. There is some doubt as to whether lack of consent makes a marriage non-existent or void. Void marriages are regarded as valid, subsisting marriages until a judgement annulling them has been pronounced by the court. In the meantime, however, the defect of the void marriage may be cured, for example, if the minor party later reaches the age of 18 and recognises the marriage.
If either of the party did not validly consent (i.e., if either party gave consent as a consequence of mistake as to the identity of the other contracting party, or through threat), marriage will be voidable. The woman’s chastity or mistake as to other party’s wealth will not invalidate the marriage. If the marriage is illegal or contrary to the good morals it will be affected by the threat. Until the annulment of the voidable marriage by the court, they have legal effect, just like the void ones. If the victim recognises the marriage, after discovering the mistake, or after the threat has been removed, a voidable marriage may not be annulled.
By any third person with a family interest or by the public prosecutor, a void marriage may be annulled pursuant to an action instituted by a spouse. The annulment of a voidable marriage can only be instituted by the action of victim. The status of the parties is affected by the court judgment annulling the marriage retrospectively, in case of both void and voidable marriages, and the marriage is treated as never having taken place. The children of the marriage remain legitimate, and it is not possible to set aside transactions carried out on the assumption (valid at the time) that the parties were spouses. If one of the parties to a void or voidable marriage was not aware of the invalidity of the marriage at the time of the ceremony, a claim for maintenance according to the rules regulating maintenance on divorce might be made by that party, against the party who was aware of the invalidity of the marriage.
THE LEGAL CONSEQUENCES OF MARRIAGE
Personal consequences of marriage
The principal personal effect of a marriage is that the spouses have the right to each other’s consortium, will all he incidents that flow from this relationship. In particular the spouses have the right ad duty to cohabit in the matrimonial home. Where spouses only cohabit from time to time because, for example, reasons of business or health oblige one spouse to spend long periods apart from the other, as long as both spouses retain the intention of cohabiting, the consortium is regarded as continuous. The right to consortium is regarded as continuous. The breach of the duty to cohabit will enable the other spouse to petition for divorce on the ground that the marriage has broken down irretrievably.
Husband and wife are required to live together under conditions of affection, fidelity and mutual assistance, and have a mutual right to sexual intercourse; but neither is bound to submit to perverted or unreasonable demands from the other.
Relations between spouses are based on equality. This means that domestic matters of common concern, such as the location of the matrimonial home, or the allocation of duties and responsibilities between the spouses, must be settled by agreement, with the limitation that agreements must respect the professional career or activities of both spouses and the other spouse’s personality.
As far as the surname of the spouse is concerned, the law provides that in social life each spouse may use the surname of the other, if the latter does not object. For marriages in existence before 1983, a woman, who acquired her husband’s surname according to previous family law, at any time, under a new transitional rule, make a declaration to the registry to resume her maiden name.
Property rights on marriage
The inevitable consequence of the principle of equality is that the husband is no longer considered by law as the main supporter of the family (as he was until 1983). Instead, each spouse has a duty to contribute to family needs in proportion of his or her means, taking into account the ability of each to work. Work inside the home is considered just as much as contribution as paid work outside the home. Family needs include the expenses of the matrimonial home and the maintenance of spouses and children, including food, clothing and other necessary goods or services, such as housing, medical attention and education. The spouses cannot divest themselves of their duty to contribute to family needs by agreement.
PROPERTY DURING MARRIAGE
Until 1983, matrimonial property was governed by the principle of separation of property. Until this date the institution of dowry, which was property granted to wife by her parents and placed under the ownership or usufruct of the husband during marriage, existed.
After the 1983 amendment, two legislative changes have taken place. (i) The first of these was the introduction of a community of property system in addition to the separation of property regime. Spouses may enter into an agreement to adopt community as property as the governing regime. (ii) The second legislative change was the introduction of the so-called ‘right to share profits and gains’.
Regardless of which system governs a particular marital relationship, the law establishes three rules as far as movable property is concerned.
(i) Movables in the possession of either one or both spouses belong presumptively, for the creditor’s benefit, to the spouse whom is the debtor.
(ii) In relations between the spouses, movables possessed by both spouses are presumed to belong to both of them equally.
(iii) In relations between spouses and creditors, or the spouses only, movables intended for the personal use of each spouse belong presumptively to the spouse who uses them.
These three presumptions are rebuttable.
Rights of ownership
UNDER THE SYSTEM OF SEPARATION OF PROPERTY
If the spouses decide not to enter into a matrimonial agreement adopting community of property, then the legal system of separation of property remains in force, and each spouse is regarded as owing his or her own property, irrespective of whether it belonged to them at the time of marriage, or was acquired during the marriage. Hence, each spouse has the power to dispose of his or her property, as well as the right to manage it without the consent of the other. Separation of property does not prevent the spouses from purchasing a piece of land or a house together and becoming co-owners.
When a marriage is dissolved or annulled, or there is three years’ interruption of marital life, each spouse has a ‘right to profits and gains’. Each spouse may take a claim for a distribution of profits and gains deriving from the property of the other spouse, to which he or she has contributed. Property acquired by the other spouse as a result of inheritance or gift is excluded. As the size of any contribution by the claiming spouse is difficult to ascertain, a rebuttable presumption exists that the contribution amounted to one-third of the profits and gains.
UNDER THE SYSTEM OF COMMUNITY OF PROPERTY
Spouses are free to enter into a matrimonial agreement to adopt community of property either before or during marriage. The spouses may determine the extent of community of property within their agreement. If they fail to specify exactly which property is included within the community property sphere, it is provided that property acquired by inheritance or gift, property intended for strictly personal or professional use, non-transferable claims, rights over intellectual property and anything acquired during marriage through sale of a spouse’s private property is not included.
Community of property is terminated:
(i) ipso jure, if the marriage is dissolved or annulled, or if one of the spouses has disappeared or has been bankrupt;
(ii) by an agreement by the spouses, also in the form of a notarial acts;
(iii) by a judicial decision following a petition by one spouse that there has been one year’s interruption of marital life, or because the condition of the private property of the other spouse or the management of the community property by the other spouse, is such that the interest of the petitioner is in danger.
Following the termination of a community of property agreement, separation of property is, once again, the governing legal regime.
Occupation of the matrimonial home
The matrimonial home is where the spouses have their principal home, living together as husband and wife. This house may be owned by one or by both spouses; or one or both spouses may be lessees. Irrespective of which spouse is the owner of the lessee, both spouses have the right as well as the duty to occupy the matrimonial home by virtue of their right and duty to consortium. Moreover, each spouse may demand that third parties, for example relatives of the other spouse, are excluded from the matrimonial home, because each spouse has the right and duty to cohabit only with the other spouse and not with the other spouse’s friends or relatives.
There is no domestic violence legislation in Greece and it is not possible to obtain an order to prevent violence by a spouse or to remove one spouse from the matrimonial home on the basis of that spouse’s violence.
Author: Navin Kumar Jaggi