What to Consider When Getting a Divorce?
Divorce is not always a straightforward process, as it may involve legal disputes. When spouses decide they can no longer continue their marriage and opt for a divorce, the first step is to choose the appropriate method. A marriage can be dissolved by mutual agreement at the civil registry office or before a notary. If an agreement cannot be reached, the divorce must be handled in court. The dissolution of a registered partnership follows a process similar to that of a marriage divorce.
One of the key questions in a divorce is which marital property regime was chosen when the marriage was contracted. The chosen regime determines who owns the assets and property rights acquired during the marriage. The marital property regime may be:
- joint property,
- separate property,
- property increment equalization, or
- a specific agreement based on a prenuptial agreement.
The Choice of Marital Property Regime Affects Asset Ownership in Divorce
In the case of joint property, assets and property rights acquired during the marriage are considered joint ownership of the spouses. Personal items, assets acquired before the marriage, gifts or inheritance, items purchased with separate property, mandatory pension funds, money in a pension investment account, and financial assets acquired with that money are not included in the joint property. Property is divided equally, but the spouses may agree on who retains specific assets. For example, if the joint property includes a car (€40,000), a summer house (€110,000), and an apartment (€150,000), Spouse I may receive the car and summer house, while Spouse II receives the apartment. It is also possible for the spouses to retain joint ownership of certain assets after the divorce, each holding a ½ share. How the property is divided depends on the specific circumstances of the marriage and the preferences of the spouses.
In the case of separate property, no joint property is created during the marriage, and the assets remain with the spouse who acquired them. In the event of a divorce, there are no financial claims between the spouses.
With property increment equalization, the spouse who acquired the property during the marriage retains ownership. However, at the end of the marriage, the increase in both spouses' property values must be equal. The spouse with less property at the time of the divorce has the right to a monetary claim equivalent to the value of the other spouse’s greater property increase during the marriage.
Under a prenuptial agreement, the division of property depends on the terms agreed upon in the contract. For example, the spouses may agree to a separate property regime, but the family home is classified as joint property. In a divorce, only the family home would be divided equally, while the rest of the property would belong to the spouse who acquired it.
Spouses can divide property by mutual agreement by signing a notarized joint property division agreement. In case of a dispute, the property is divided by the court based on one spouse's lawsuit. If there are questions regarding the composition of joint and separate property, the law provides guidance. For example, if property was acquired before January 1, 1995, the old family law in force before the current law applies to determine ownership.
Divorce Can Be Filed at the Vital Statistics Office, with a Notary, or in Court
In Estonia, divorce can be granted at the Vital Statistics Office based on a joint written application from both spouses. The Vital Statistics Office can dissolve the marriage if both spouses reside in Estonia or if they have agreed that Estonian law applies to their divorce. To file for divorce, both spouses must personally submit a joint written application in Estonian, along with identification documents, a marriage certificate (if the information is not available in the marriage registry), and pay the state fee. Both spouses must be present for the application and the divorce process. If one spouse cannot attend for a valid reason, they may submit a notarized separate divorce application or consent to the divorce without being present. The divorce is finalized no sooner than one month and no later than three months after the application is submitted.
Divorce can also be finalized at a notary's office. In addition, the notary can facilitate agreements regarding the division of property and arrangements for children. A notary can also dissolve the marriage if one spouse resides abroad or if foreign law applies to the divorce. To initiate the process, a notarized divorce application and identification documents must be submitted, along with payment of the notary's fee. The notary will set a date for the divorce, and both spouses must attend. If one spouse cannot attend due to a valid reason, they may submit a notarized application or consent at another notary's office.
If spouses cannot agree on the terms of the divorce or property division, they must turn to the court. The court will dissolve the marriage upon one spouse's lawsuit if the relationship is irreparably broken—for example, if the spouses have lived separately for at least two years. The court will not attempt reconciliation if it is unreasonable or impossible, though a reconciliation period of up to six months may be granted if deemed possible. If there is no dispute regarding the divorce itself, spouses can dissolve the marriage at the Vital Statistics Office or with a notary and only take property division matters to court. However, this adds court costs and may make the process more time-consuming and burdensome for both parties.
Spousal Residence
The Family Law Act outlines how to handle the family residence and related property in the event of a divorce. If the spouses cannot reach an agreement regarding the use of the home and its associated items, the court will determine each party's rights and usage terms. When making its decision, the court will especially consider the well-being of any children and other relevant factors. If the family home is solely owned by one spouse, the court may, to prevent unfairness, grant the other spouse the right to use the residence. In such cases, the court may also require the spouse using the residence to pay a reasonable fee for its use. Ordinary household items that are jointly owned will be divided fairly and practically if necessary.
It is important to remember that although spouses may no longer be living together, the marriage and the property regime remain in effect until the day the divorce is finalized—whether through a decision by the Vital Statistics Office, a notary, or the enforcement of a court ruling. Until the day of divorce, joint property transactions must be made together or with the consent of the other spouse.
If you have questions or disputes regarding marriage, cohabitation, or other non-traditional partnerships, it is wise to consult with an expert to find peaceful solutions. Our attorneys at Lepmets & Nõges are here to assist you.