By Evangelia Petsa,
According to Article 1439 of the Civil Code:
«Each of the spouses can request a divorce when the relations between them have been shaken so strongly, for a reason that concerns the person of the defendant or both spouses, so that the continuation of the married relationship is justifiably unbearable for the plaintiff.
Unless the defendant proves the contrary, shock is presumed in case of bigamy or adultery thereof, desertion of the plaintiff or intent on his life by the defendant, as well as in case of domestic violence by the defendant against the plaintiff.
If the spouses have been separated continuously for at least two years, the separation is irrevocably presumed and divorce can be requested, even if the reason for the separation concerns the person of the plaintiff. Completion of the separation period is calculated at the time of discussion of the lawsuit and not hindered by minor interruptions made in an attempt to restore relations between the spouses».
Therefore, in order to create grounds for divorce, the following conditions must be met: a) a shocking event concerning the defendant spouse or both spouses, b) this event shook the marital relationship so strongly that c) made fundamentally unbearable the continuation of the married life.
As for the first premise, the strong shock, there is no longer any reference to culpability. The reason can include and cover all kinds of situations, which are either due to culpability, or are connected to the person of the husband without him being responsible for them. However, the reason should be connected either to the person of the defendant exclusively, or to both spouses. Thus, if the plaintiff himself created the shocking reason exclusively, he does not have the right to request a divorce and his lawsuit will be rejected, even if he can prove that the relationship was shaken. Nor, of course, is it investigated who is mainly or more responsible for the shocking behavior.
The second link in the chain required to dissolve a marriage is the shock of the marital relationship as a result of a shock event. This means that the shocking event must be objectively capable of shaking the marriage and that a strong shock has indeed occurred in the particular marriage. There must therefore be a causal link between these two elements, the event and the breakdown of the marriage.
It is difficult for single incidents to lead independently to the upheaval of the marriage, without this being said that even a single event is not enough, as long as it is proven that it actually caused the upheaval. What actual situations, what acts or omissions can produce this effect, is almost impossible to determine. In a general way, we can classify the actions or omissions that were and are apt to shake marriage into the following categories: a) violations of the obligation to live together (this includes a number of incidents that are mainly related to unjustified absences and leaving the marital home, etc.), b) demonstration of dishonest and unethical behavior, which mainly covers violations of the rules of behavior imposed according to the prevailing morals and c) other gratuitous situations.
Third link in the chain is the basically unbearable marital relationship. So the judgment about the occurrence of the shock is made with subjective criteria. But if we were content with these, the divorce would become almost automatic, since the judge would be obliged to accept every divorce application without any possibility of control. Thus, in the control for the unbearable, objective criteria are introduced and mainly the social mores from which the judge derives the rules he needs, but also the right to development and respect for the personality.
Paragraph 2 of article 1439 of the Civil Code states the presumptions of strong shaking. First of all, bigamy is mentioned. Bigamy presupposes the existence of marriage. In the case of a non-existent first marriage, it is not conceivable to perform a bigamy. It is indifferent the type of performance of both the first and the second marriage. Bigamy creates a presumption of strong shock, both for the first spouse of the bigamy and for the second. The second spouse also has the right to choose the annulment of the marriage instead of the divorce.
Second presumption is adultery. Adultery in civil law is considered, according to the current opinion, sexual contact between two persons, one of whom is married, with the purpose of sexual satisfaction. The gender of the persons, the type of physical contact and the degree of sexual satisfaction do not matter. What is interesting is that, in this way, the violation of the due conjugal loyalty strongly derailed the marriage.
Furthermore, a third presumption is abandonment. Abandonment is always defined in opposition to the concept of cohabitation. Abandonment is the termination of cohabitation, i.e. the breach of the obligation to cohabit. However, the definition of abandonment is not easy: where cohabitation ends, abandonment begins, but on the condition that the termination of cohabitation on the part of one spouse is not done for a reasonable reason and that the termination is not only imposed by external causes, which they do not respond to the will of the spouses for removal not only formal and temporary, but formal. Abandonment may exist even under conditions of continued co-housing. This can happen when, regardless of the reasons that force the couple to live together, the behavior of one of the two is abandonment behavior (e.g. complete indifference to the other, separate feeding, frequent absences and going out without the other, not participating in events which were previously common).
Another presumption and the only one preserved and transferred from the old law to the current one is the presumption of life. According to the generally accepted definition, intent to kill is any act or omission that manifests the intention of one spouse to kill the other. Action (act or omission) and intent to kill are therefore required. Of course, inner thoughts, even confessed ones, as well as threats, do not fall under the concept of scheming. There must be actual manifestation of the intent to kill, even if no attempt is documented.
It goes without saying that domestic violence is also a presumption of strong shock. The law does not define violence, but distinguishes it into physical-absolute and psychological. Both forms fall within the scope of domestic violence, but it is clear that it will mainly be acts of physical violence, practiced in every imaginable way.
Finally, paragraph 3 of article 1439 of the Civil Code establishes the presumption of a two-year separation. This provision seeks to cover all cases of objective breakdown of the marriage. The parties are thus freed from the painful and time-consuming search and invocation of facts, which would reveal and prove the impossibility of continuing the marriage. The two-year gap falls into place to prove this shock. This is an irrefutable presumption, which constitutes the clearest departure from the principle of culpability.
References
- Αστικός Κώδικας. ministryofjustice.gr. Available here
