Expat divorce in the Czech Republic: Jurisdiction and law governing separation of matrimonial property

In the Czech Republic, proceedings on separation of matrimonial property run separately from divorce proceedings, unless parties reach an overall agreement on divorce that deals also with property. In case that spouses fail to reach an agreement, separate proceedings on property may be started after court ruling on divorce. Primary issues of such case between foreigners in the Czech Republic concern court jurisdiction and law that will govern the proceedings.

Child custody, divorce, alimony and division of matrimonial property

In case that spouses fail to reach an agreement, there will be separate court proceedings on (1) child custody and child maintenance, (2) divorce itself, (3) spousal and ex-spousal alimony and (4) division of matrimonial property. Each of these proceedings may have different requirements for court jurisdiction and may be governed by a different law. This article deals only with specialist legal issues of division of matrimonial property.

• For general introduction into divorce proceedings, please read the article: Basic information about divorce proceedings in the Czech Republic.
• For general introduction into spousal alimony, please read the article: Attorney’s introduction into spousal alimony payments after divorce in the Czech Republic.
• For general introduction into injunctive relief, please read article: When marriage becomes unbearable: Restraining order and preliminary injunction for alimony prior to divorce in the Czech Republic
• For a specialist legal explanation of jurisdiction and governing law on divorce, please read the article: Expat divorce in the Czech Republic: Court jurisdiction and governing law of divorce proceedings.

Difference between jurisdiction and governing law

Jurisdiction is the official power to make legal decisions and judgements. In the context of foreigners’ proceedings on division on matrimonial property, jurisdiction is the question whether Czech courts can decide how to divide the property, or whether courts of a different country are appropriate to make the judgement.

This may be complicated especially in the case of long-distance marital relationships between professionals that often change countries of habitual residency or in case of digital nomads. Often, courts of more than one country might have jurisdiction. In such case practical factors should be taken into account, including difficulty of obtaining judgement or length of proceedings.

Governing law is the legal system that the court will use to make a judgement. Typically, courts use the law of the country where they are based, but in some circumstances, courts may be obliged to use other country’s law. This may significantly complicate proceedings.

Division of matrimonial property – jurisdiction

Court case for separation of matrimonial property will run separately (unless parties reach an agreement as part of divorce proceedings). It may be filed after the divorce. Alternatively, the parties may reach an agreement as part of the divorce proceedings that may encompass also division of property.

Traditionally, issues of matrimonial property were governed by the Czech Act No. 91/2012. However, EU Regulation on Matrimonial Property came to effect on 29 January 2019. I.e. the process under the EU Regulation on Matrimonial Property will be probably a novelty for a judge dealing with the case.

The EU Regulation on Matrimonial Property contains a rather complicated arrangement for establishing court jurisdiction. Each case needs to be carefully examined in order to properly apply given situation on the rules in the regulation. Among many outcomes, there are the following possibilities:

• In the case that the country’s court has jurisdiction over the divorce, parties may agree that the same country’s courts should decide also the division of matrimonial property. However, other conditions must be met relating to applicant’s habitual residency in the country, etc.
• Should there be no agreement between the parties, the Czech Republic shall have jurisdiction if:
  • spouses are habitually resident in the Czech Republic at the time the court is seised, or failing that
  • if both spouses were last habitually resident in the Czech Republic, insofar as one of them still resides there at the time the court is seised; or failing that
  • if the respondent is habitually resident in the Czech Republic at the time the court is seised, or failing that
  • if both spouses have Czech nationality (even if they live abroad).

Division of matrimonial property – governing law

The issue of which law will govern the proceedings, i.e. according to which law the court will make a judgement, is separate from jurisdiction.

The EU Regulation on Matrimonial Property prefers that the parties make a choice of law that will govern their matrimonial property.

If there is no agreement on choice of law, then Czech courts will divide the matrimonial property according to the law:

• of the spouses’ first common habitual residence after the conclusion of the marriage; or, failing that
• of the spouses’ common nationality at the time of the conclusion of the marriage; or, failing that
• with which the spouses jointly have the closest connection at the time of the conclusion of the marriage, taking into account all the circumstances.

In the case that the Czech court must apply foreign law, it will have to undergo a fact finding mission as regards its content.

If you are considering getting a divorce in the Czech Republic, don’t hesitate to contact me.