Changes in divorce by mutual consent of the spouses. Will it be faster and easier to get a divorce at a notary?

For a number of years now, Lithuanian statistical data show that almost every second marriage in the country ends up in divorce. As of 1 January 2023, it will be sufficient to apply to a notary public in order to terminate a marriage without minor children and upon agreement on the division of joint assets and liabilities. How will these changes be implemented and what do divorcing persons, their lawyers and mediators need to know?

The workload of Lithuanian courts is one of the highest in Europe

Although in recent years there has been a general decrease in the number of civil cases, including divorce cases, Lithuanian courts remain one of the busiest in the European Union in terms of the number of civil cases received. In part, this is determined by the need to go to court even in cases where there is no dispute between the parties, and cases in which the court does not resolve the legal dispute make up almost half of all civil cases heard by district courts every year. One of the most important examples is divorce by mutual consent of the spouses.

According to the National Court Administration, the number of consensual divorces in recent years has exceeded 7,500 cases per year. On the one hand, this shows that more and more couples who have decided to go their separate ways are trying to do so peacefully. On the other hand, since 2020, mandatory mediation in family disputes, during which a professional mediator helps disputing spouses to reach an amicable agreement, significantly contributes to this. Such cases alone significantly burden the courts with an uncharacteristic function, increase time and financial costs for the spouses and the State, and therefore encourage the legislator to look for a more effective procedure for solving the legal issue.

More functions for notaries

The President of the Chamber of Notaries of Lithuania, Marius Stračkaitis, shared that “from the beginning of 2023, Lithuanian notaries will have the right to formalize the dissolution of marriage, when the spouses agree on it, do not live a married life for a year and do not run a joint farm, and do not have minor children. This new function of the notary will enable individuals to divorce faster, without having to go to court, in my opinion, both with dignity and, of course, more confidentially. On the one hand, this function is not a traditional notarial act, but on the other hand, formalizing a divorce is not completely foreign to the specifics of a notary. After all, in neighbouring Estonia and Latvia, notaries have been successfully finalizing divorces for the past decade. In addition, the notary is well-acquainted with the family’s property relations – they approve marriage and property division agreements.”

According to the sociological survey conducted by “Vilmorus” in November 2022, 68 percent of Lithuanian residents trust notaries. The president of the Chamber of Notaries of Lithuania notes that “as with many new functions attributed to notaries, we are of the opinion that this is the result of good work by notaries and the increase in the State’s trust in them. As with all the functions we perform, we will look at the formalization of divorce responsibly and carefully, especially since we will have to accumulate experience and form a unified practice. The Chamber of Notaries is already preparing notaries for this. A training seminar dedicated to this topic has been organized, and relevant methodological material has been published on our networks.”

After the New Year, apply to a notary to end the marriage by mutual consent

Before the coming into force of the presented amendments, only the court could dissolve a marriage in Lithuania, both in the event of a dispute between the spouses and when they reached a mutual agreement regarding all the legal consequences of the divorce. After the spouses managed to agree on the consequences of the divorce themselves, with the help of lawyers or mediators, they had to submit a contract as to the consequences of the divorce to the court reflecting the will of both of them. In it, it was necessary to divide the common property and liabilities of the spouses, and if the spouses had minor children, it was necessary to discuss all the issues affecting them as well as, if necessary, to resolve the spouses’ maintenance, surnames and other issues. The right to approve this contract, under certain conditions, is given to notaries from 1 January 2023. However, only those spouses who have not managed a joint household for more than one year, no longer lead a married life and do not have minor children will be able to get a divorce before a notary.

When applying to a notary of their choice for a divorce by mutual consent, the spouses will need to submit a written confirmation that they meet the previously mentioned conditions, an agreement on the consequences of the divorce, and evidence that the spouses have informed all joint creditors, if any, about the application to the notary for the divorce.

Renata Cibulskienė, Senior Associate at the law firm COBALT, points out that “the content of the divorce agreement will remain the same. In order to terminate the marriage, the spouses must discuss the issues of mutual maintenance, their property rights and obligations, as well as the division of joint property. Analogous to the divorce in court, the notary will not confirm the consequences of the divorce agreement if it is against public order or fundamentally violates the rights of one of the spouses.”

Will the divorce process become faster?

Renata Cibulskienė, Senior Associate at COBALT, states that the process of approving a contract on the consequences of divorce at a notary will usually be faster but points out that speed will not be likely in all cases. Renata draws attention to the fact that “previously, after the court approved the contract on the consequences of divorce, the court decision came into force after 30 days, whereas now, after the notary has approved this contract, it will come into force on the next working day. However, this does not mean that the spouses will be able to divorce in a couple of days in any case. If the spouses discuss the division of joint property in the agreement, the creditors of the spouses will have the right to object to the provisions of the agreement and they will have 30 days to do so. During that period, the notary will not approve the contract.”

Renata Cibulskienė also points out that the procedure for enforcement of divorce agreements approved by a notary and a court will differ. According to her, “sometimes the contract has to be enforced due to the consequences of the divorce, if, for example, the compensation stipulated in the contract is not paid. An agreement on the consequences of a divorce approved by a court decision is enforceable like any other court decision by submitting a writ of execution to the bailiff, which is issued simply and quickly. Meanwhile, enforcement of a notarized contract regarding the consequences of termination may take time. In order to enforce a notarized contract, it will be necessary to obtain a notary’s executive record. If the notary refuses to make an executive record, you will still have to go to court.”

The possible impact of the novelty on the institution of compulsory mediation

From 1 January 2020, before going to court with a family dispute, it is necessary to use the mandatory preliminary pre-trial procedure for the resolution of family disputes – mediation – provided by law. In other words, the legislator has been giving spouses the opportunity for several years now to agree, with the help of professionals, on the terms of the divorce in a peaceful way, so that the divorce can finally be applied for by mutual consent of the spouses and thus the divorcing parties avoid a long-lasting and expensive divorce dispute.

Head of the Mediation and Peaceful Dispute Resolution Laboratory at Mykolas Romeris University (hereinafter – MRU), prof. Dr Agnė Tvaronavičienė points out that “anticipated changes, as long as they do not lead to higher financial costs than before, will have a positive effect on mandatory mediation in family disputes. Easier formalization of the outcome of mediation – an amicable agreement – ​​is a major advantage. In addition, many Lithuanian notaries have attended mediation training, fully understand and appreciate the benefits of peaceful agreements for the relations of former spouses. It is likely that the function of approving contracts for the consequences of divorce will encourage notaries of the country to join the ranks of mediators even more actively, which will undoubtedly increase the recognition and prestige of the mediator profession.”

In the opinion of Indrė Korsakovienė, a doctoral student at MRU and a mediator, the mandatory mediation institute is already firmly established in the Lithuanian family dispute resolution system and is pleasing with positive results: about half of the disputes resolved by mandatory mediation end in peaceful agreements. Indrė names mediation as a faster and cheaper alternative to the court but also notes that, before the presented innovations came into force, even the parties who found a peaceful agreement with the help of a mediator, unfortunately did not avoid the court. After the changes come into effect, according to Indrė Korsakovienė, “if the disputing parties manage to reach an amicable agreement, under the conditions set by the law, the mediator will be able to refer them to a notary, where the marriage will be terminated faster. It is likely that this will further encourage the spouses to divorce peacefully.”

Will the workload of the courts really decrease?

Changes to the Civil Code that will come into effect on 1 January 2023 for spouses who do not have minor children and have agreed on the terms of divorce are likely to simplify divorce by mutual consent. However, Marius Stračkaitis, the president of the Chamber of Notaries of Lithuania, cautiously assesses the goal set by the legislator to reduce the workload of the courts. He indicated that “legal academics are arguing about these new notary functions. There are opinions that when notaries are allowed to formalize divorces, “B” is said without mentioning “A”, that is, notaries must also have the right to confirm the conclusion of marriage, as it is legalized, for example, in Estonia. One of the arguments for transferring the formalization of divorce to notaries was to reduce the workload of the courts. Practice will show how much the workload of the courts will actually decrease, since the spouses will be able to dissolve the marriage at a notary only under the conditions established by law.”