According to the official statistics of Lithuania, in 2019, 19.5 thousand marriages were registered which is 232 (1.2%) less than in 2018. Meanwhile, in 2019 divorces were registered by 8,700 couples. Compared to 2018, it is 43 (0.5%) more divorced couples than in 2018. Obviously, the number of divorces is extremely high. There is no problem if the spouses can decide peacefully on the division of property and obligations acquired in the marriage, the establishment of communication with children and other issues. But if the spouses cannot rationally decide on the consequences of the divorce after a long period of disagreement and dispute? What if one of the spouses (the plaintiff) has already brought an action for divorce in court and the other spouse (the defendant) has a completely unacceptable method of dividing the property and obligations? Is the only possible defense for this spouse (defendant) to be a counterclaim stating the mass of all assets and liabilities and providing a method of division? However, this would often result in a stamp duty of several thousand euros on the total value of the assets stated in the counterclaim. Given our knowledge of the law and current case law, we would certainly not offer such a course of action to a client.
It is noted in the case law of the Supreme Court of Lithuania that in the event of a claim for divorce, the defendant may fully defend his or her interests by using the procedural form of responding to the claim. This approach is based on the fact that procedural law establishes a specific (exclusive) role of the court in family cases. In family cases, without denying their dispositive nature, as mentioned, the court must be active. This enables the court to resolve the issue of divorce on a basis other than that claimed by the plaintiff.
The law does not oblige the other spouse to file a counterclaim if the method of division of property proposed by the plaintiff is not acceptable to him or her. When the joint property of the spouses is divided and the share of the property belonging to each of them is determined, the court shall follow the provisions of the Civil Code and shall take into account the circumstances indicated by the parties and the methods of division of property requested. However, the court is not obliged to divide the property as indicated in the application, as the court is bound by the rules for the division of property set out in Articles 3.116 to 3.129 of the Civil Code, and the court must choose the method of division of matrimonial property that best meets the provisions of the Civil Code and the objectives of the regulation of civil legal relations, meanwhile, Article 376 (3) of the Code of Civil Procedure also gives the court the right to go beyond the requirements of the action in these cases.
An analogous position has been repeatedly indicated in the case law, inter alia, in the ruling of the Kaunas Regional Court of 6 March 2018 in civil case No. 2S-691-230/2018, where the court stated:
“In the present case, the Court of First Instance incorrectly assessed the defense of the defendant E.V. in terms of compliance with the general requirements of the Code of Civil Procedure, has therefore unjustifiably restricted the defendant from being able to state its position on the divorce and the division of the matrimonial property in the defense, also infringed the principle of disposability in civil proceedings, which means that the determination of the subject-matter of the proceedings is the responsibility of the parties to the dispute and not of the court. Whether to file a claim for divorce in a divorce case is decided by the party (spouse) himself, after weighing the factual and legal preconditions of such a claim, such a rule is also formed in the case law (Order of the Supreme Court of Lithuania of 8 March 2006 in Civil Case No. 3K-3-178/2006) ”.
At the same time, it should be noted that the second pattern of behavior this means that if the spouse files a counterclaim and pays a stamp duty calculated in proportion to the value of the total property to be divided, the court will not, on its own initiative, offer to withdraw the counterclaim and provide feedback and at the same time refund the stamp duty paid. The party of the proceedings who pays the stamp duty acts at his own risk, as a result of which he must bear the consequences of ignorance of the law and case-law. We are happy to offer clients an action plan that makes the divorce process in court cheaper.
ARTICLE PREPARED BY:
Černiauskas and Partners Law Firm Advocate’s assistant Irma Lisauskaitė.
