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Croatian Family law
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A frequently occurring issue in the work of our law firm is that of the applicable law in family matters. This question arises because Croatian citizens increasingly enter into different legal relationships that affect other legal systems outside Croatia. The mere fact that Croatian citizens live in the Federal Republic of Germany creates an intensive relationship with the German legal system and regulations, for example in the area of family law. However, such a reference can also arise in other constellations, e.g. if a Croatian and a German citizen marry in Croatia or if two Croatian citizens marry in Germany, if a child from such a marriage is born in Germany or if the family lives partly in Croatia and partly in Germany. This is only a small excerpt of possible situations, but all of them are based on the same question when family law issues are to be resolved, whether out of court, in court or before state authorities: Which law is applicable, Croatian or German law?
For such cases of private-law relations, in which legal regulations of two or more states could apply, there are regulations on the application and conflict of laws in both the Federal Republic of Germany and the Republic of Croatia, which clarify how the applicable law is to be determined. In the Federal Republic of Germany these regulations are contained as private international law within the framework of the Introductory Act to the Civil Code (EGBGB), in the Republic of Croatia within the framework of the Act on Resolving Conflicts of Laws with the Regulations of Other States for Certain Relationships (Conflict of Laws Act - GKolG). The Croatian CCL, like the German EGBGB, distinguishes between different areas of law, for which they provide different rules of application and conflict of laws. One such area of law is family law, which in Germany is regulated in §§ 13 to 24 EGBGB and in Croatia in §§ 15 and 32 to 45 GKolG. In addition to the differentiation between the different areas of law, German and Croatian regulations can also be differentiated according to substantive law (substantive regulations) and formal law (jurisdiction, procedural and formal regulations), so that German and Croatian law can be applied simultaneously in the case of a uniformly presented case for the outsider. Under Croatian law, the personal requirements for marriage are determined by the law of the state of which a person is a national at the time of marriage (Art. 32 CCCL). A similar provision exists in Germany (Art. 14 para. 1 EGBGB). Therefore, in the case of marriage between a Croatian and a German, the Croatian requirements must be met for the Croatian and the German requirements for the German; however, in the case of marriage in Croatia, no obstacles to marriage may exist under Croatian law for the German either. However, the form of marriage is then governed by the rules of the place where the marriage is to be contracted. This is provided for by both Croatian law (Art. 33 GKolG) and German law (Art. 13 para. 3 sentence 1 EGBGB). With regard to the question under which law the effects of the marriage - in particular the effects of the marriage on the spouses and their assets - are determined, both the JSA and the ETUCC offer a staggered sequence of applicable law. The EGBGB is primarily based on the nationality of both spouses, alternatively on their habitual residence and, alternatively, on their closest common relationship to a legal system (Art. 14 para. 1 EGBGB). The JSA is also based primarily on the nationality of both spouses, but alternatively on their place of residence, and further alternatively on their last common residence and alternatively on the law of the Republic of Croatia (Art. 36 p. 1 JSA). Unlike the CCL, however, the EGBGB also provides for the possibility of choosing the law applicable to the effects of the marriage under certain conditions. If both spouses have a different nationality and, for example, neither of them has the nationality of the country in which they have their habitual residence (Art. 14 para. 3 sentence 1 no. 1 EGBGB), they can decide on the law applicable to their marriage subject to certain formal requirements. For example, Bosnian and Croatian citizens living in Germany can decide whether they want to apply Bosnian or Croatian law to their marriage. This choice of law must be notarised in Germany (Art. 14 para. 4 EGBGB) and its effect ends as soon as both spouses regain the same nationality (Art. 14 para. 3 p. 2 EGBGB). The link to nationality is also more intensive in the EGBGB than in the GKolG. In the event of a change of citizenship, for example if one of the Croatian spouses living in Germany changes his or her citizenship, Croatian law continues to apply initially to both spouses under the EGBGB, because both were last Croatian citizens and one is still a Croatian citizen (cf. Art. 14 para. 1 no. 1 EGBGB). In contrast, the JCCL would require the application of German law, since both spouses are not Croatian citizens but have their residence in Germany (cf. Art. 36 p. 2 JCCL).
A different application of the law is also evident in the case of divorce. According to the JCCL, the law applicable to divorce is primarily the law of the state of which both spouses are nationals at the time of filing the divorce petition, secondarily, in the case of mixed nationalities, the law of both states applies cumulatively, and Croatian law applies as a substitute (Art. 35 para. 1 JCCL). However, according to the EGBGB, the law of the state according to which the general effects of the marriage are determined at the time of the lis pendens of the divorce petition (Art. 17 para. 1 sentence 1 EGBGB). Alternatively, German law applies if one spouse is a German citizen or was a German citizen at the time of the marriage and the marriage cannot otherwise be divorced (Article 17 para. 1 sentence 2 EGBGB). In the case of spouses with mixed nationality and residence in Germany, this can mean that in the case of divorce applications before German organs, they will be treated under German divorce law, whereas in the case of divorce applications before Croatian organs, they will be treated cumulatively under German and Croatian divorce law. This, too, illustrates the complexity that can arise in particular in family law issues with international connections. At the same time, however, this complexity can also offer advantages, as the spouses can in some cases choose the law under which they wish to have their marriage relationship handled. For example, they can decide in advance which court they wish to bring their case before. This, in turn, can bring advantages in the implementation of the entire judicial process. If the spouses can decide which court they want to go to, they can choose the one that most effectively meets their needs. In particular, they can avoid the problems and delays that can arise from splitting the recognition and enforcement procedures.
For such cases of private-law relations, in which legal regulations of two or more states could apply, there are regulations on the application and conflict of laws in both the Federal Republic of Germany and the Republic of Croatia, which clarify how the applicable law is to be determined. In the Federal Republic of Germany these regulations are contained as private international law within the framework of the Introductory Act to the Civil Code (EGBGB), in the Republic of Croatia within the framework of the Act on Resolving Conflicts of Laws with the Regulations of Other States for Certain Relationships (Conflict of Laws Act - GKolG). The Croatian CCL, like the German EGBGB, distinguishes between different areas of law, for which they provide different rules of application and conflict of laws. One such area of law is family law, which in Germany is regulated in §§ 13 to 24 EGBGB and in Croatia in §§ 15 and 32 to 45 GKolG. In addition to the differentiation between the different areas of law, German and Croatian regulations can also be differentiated according to substantive law (substantive regulations) and formal law (jurisdiction, procedural and formal regulations), so that German and Croatian law can be applied simultaneously in the case of a uniformly presented case for the outsider. Under Croatian law, the personal requirements for marriage are determined by the law of the state of which a person is a national at the time of marriage (Art. 32 CCCL). A similar provision exists in Germany (Art. 14 para. 1 EGBGB). Therefore, in the case of marriage between a Croatian and a German, the Croatian requirements must be met for the Croatian and the German requirements for the German; however, in the case of marriage in Croatia, no obstacles to marriage may exist under Croatian law for the German either. However, the form of marriage is then governed by the rules of the place where the marriage is to be contracted. This is provided for by both Croatian law (Art. 33 GKolG) and German law (Art. 13 para. 3 sentence 1 EGBGB). With regard to the question under which law the effects of the marriage - in particular the effects of the marriage on the spouses and their assets - are determined, both the JSA and the ETUCC offer a staggered sequence of applicable law. The EGBGB is primarily based on the nationality of both spouses, alternatively on their habitual residence and, alternatively, on their closest common relationship to a legal system (Art. 14 para. 1 EGBGB). The JSA is also based primarily on the nationality of both spouses, but alternatively on their place of residence, and further alternatively on their last common residence and alternatively on the law of the Republic of Croatia (Art. 36 p. 1 JSA). Unlike the CCL, however, the EGBGB also provides for the possibility of choosing the law applicable to the effects of the marriage under certain conditions. If both spouses have a different nationality and, for example, neither of them has the nationality of the country in which they have their habitual residence (Art. 14 para. 3 sentence 1 no. 1 EGBGB), they can decide on the law applicable to their marriage subject to certain formal requirements. For example, Bosnian and Croatian citizens living in Germany can decide whether they want to apply Bosnian or Croatian law to their marriage. This choice of law must be notarised in Germany (Art. 14 para. 4 EGBGB) and its effect ends as soon as both spouses regain the same nationality (Art. 14 para. 3 p. 2 EGBGB). The link to nationality is also more intensive in the EGBGB than in the GKolG. In the event of a change of citizenship, for example if one of the Croatian spouses living in Germany changes his or her citizenship, Croatian law continues to apply initially to both spouses under the EGBGB, because both were last Croatian citizens and one is still a Croatian citizen (cf. Art. 14 para. 1 no. 1 EGBGB). In contrast, the JCCL would require the application of German law, since both spouses are not Croatian citizens but have their residence in Germany (cf. Art. 36 p. 2 JCCL).
A different application of the law is also evident in the case of divorce. According to the JCCL, the law applicable to divorce is primarily the law of the state of which both spouses are nationals at the time of filing the divorce petition, secondarily, in the case of mixed nationalities, the law of both states applies cumulatively, and Croatian law applies as a substitute (Art. 35 para. 1 JCCL). However, according to the EGBGB, the law of the state according to which the general effects of the marriage are determined at the time of the lis pendens of the divorce petition (Art. 17 para. 1 sentence 1 EGBGB). Alternatively, German law applies if one spouse is a German citizen or was a German citizen at the time of the marriage and the marriage cannot otherwise be divorced (Article 17 para. 1 sentence 2 EGBGB). In the case of spouses with mixed nationality and residence in Germany, this can mean that in the case of divorce applications before German organs, they will be treated under German divorce law, whereas in the case of divorce applications before Croatian organs, they will be treated cumulatively under German and Croatian divorce law. This, too, illustrates the complexity that can arise in particular in family law issues with international connections. At the same time, however, this complexity can also offer advantages, as the spouses can in some cases choose the law under which they wish to have their marriage relationship handled. For example, they can decide in advance which court they wish to bring their case before. This, in turn, can bring advantages in the implementation of the entire judicial process. If the spouses can decide which court they want to go to, they can choose the one that most effectively meets their needs. In particular, they can avoid the problems and delays that can arise from splitting the recognition and enforcement procedures.