I have been married for four years and have two young children with my husband who are attending primary school. Even though we are still married, we have been having problems with our marriage because my husband drinks and has also been beating me. I have been thinking for many years about getting divorced, but haven’t been able to find the courage to do so. Whenever I tell my husband that I want to divorce him, he laughs at me and says we would never get divorced without his consent. I have also heard that a marriage can only be dissolved when the husband is not living in the same household. I do not have the money for another flat and therefore the children and I are living together in a single household with my husband. I would like to ask whether the court would actually grant a divorce if I filed a motion for it. In addition, my husband has threatened me that, if we ever got divorced, our children would be separated so that one remains with me, while he would take the other away.
The court may dissolve the marriage only in the case where the relationships between the married couple become so broken and disrupted that the marriage cannot fulfill its purpose and the spouses cannot expect their coexistence to be restored (§23 par. 1 of the Family Act). The court is required, along these lines, to determine what caused the marriage to break down. At the same time, the court has to consider the interests of any minor children involved (§23 par. 2 - 3 of the Family Act).
The other spouse’s consent to a divorce is not necessary. In the event the other spouse does not agree to dissolve the marriage, it is not essential for you (as the plaintiff) to demonstrate reasonably to the court that your marriage is wrecked. The question of when the marriage became broken is a subjective one and the court will ascertain the breakup of the marriage based on the circumstances in the specific case. In your case, the fact your husband has been beating you, as well as his increased drinking, is certainly a reason for the marriage to be breaking down. However, we warn you that these facts must be reasonably demonstrated to the court. In the case of physical violence, a doctor’s certificate of injuries or a confirmation from the police of a complaint can be used as evidence. In the event you do not have such evidence, the testimony of a neighbor or the children may also suffice (though the court will only listen to minors in extraordinary cases on account of their age and psychological immaturity). It is true that, in practice, the breaking down of a marriage is often demonstrated by the married couple’s physical separation (the spouses are not living together in a single household). The fact itself that you are living together in a household does not mean the court cannot dissolve your marriage. In accordance with current judicature at the Supreme Court of the Slovak Republic, the court may only separate minor children in exceptional cases. All minors are basically placed in the custody of one of the divorcing spouses. Such an approach by the courts is correct since the interests of minors are respected above all. The interests of minor children do not allow any interference with their mutual sibling relationships. This also applies in a case where one of the children was born outside wedlock.
In conclusion, let me draw to your attention that, in your case, the dissolution of your marriage will also include a question regarding custody of minor children, the issue of child support and addressing a parent’s contact with them.
We have one child from a former marriage. Our marriage was dissolved a year ago and my former husband is required to pay 1,000 Sk child support. Since our divorce, my former husband has again found employment as a truck driver. I know he is earning at least 30,000 Sk a month. For this reason, I would like to file a motion with the court to have child support increased. I had wanted my former husband to agree to this, but it wasn’t possible. He told me that his salary was only 8,000 Sk. I know he also receives a subsistence allowance in addition to his salary, which represents the greater part of his income. My former husband’s lawyer told me this allowance is not included in his salary and therefore cannot be taken into account when determining child support. My question is whether it has any sense to file a motion to increase child support.
Both parents are required by law to contribute to their minor children’s wellbeing, based on their abilities, possibilities and financial means (§62 par. 2 of the Family Act).
A motion to increase child support may be filed at the competent court anytime there is a change in circumstances on the side of the parents or minor children. In practice, parents file such motions, for instance, in relation to a child entering school, but it also happens in cases where the obliged parent’s income has increased. It is true that travel reimbursements (subsistence allowance) are not included in wages, in accordance with §118 par. 2 of the Labor Code. But in spite of this fact, the court will take the payment of travel reimbursements into account when child support is determined. As was also mentioned above, the parents contribute to the wellbeing of their minor children based on their financial means. The term “financial means” is a general concept and salary is only one part of that concept. In general, financial means implies anything of value a parent holds in possession. Therefore, financial means can apply both to salary and, for instance, title to property or motor vehicles. For this reason, it is only natural that the court will consider travel reimbursements (subsistence allowance) when it determines child support. In light of these facts, I recommend you to file a motion to increase child support.
I have one child. We no longer live with the child’s father and the court has determined his child support to be 2,500 Sk a month. Despite the court’s ruling, the child’s father has not paid child support in full but is paying less, in all likelihood according to what he wants to pay. I am currently unemployed and this child support is a substantial part of our family’s income. Since the child’s father is not duly paying child support, my child and I have a problem living. I have also filed a motion for distraint, but the proceedings have been drawn out over a long time because the child’s father is also unemployed. How can I ensure the child’s father meets his obligation to pay child support properly and in a timely manner? I want to file a complaint against the child’s father, but the police tell me his action would only be a criminal offense if he had not paid a crown for a minimum of three months.
Failure to meet a legal obligation for at least three months over a period of two years to nourish or care for another is punishable by up to two years imprisonment (§207 of the Penal Code). If the obliged person fails to pay child support in part, alternative child support is provided in the amount of the child support not paid (§4 par. 2 of the Alternative Child Support Act).
One of the most frequent problems faced by parents who do not live together is failure to pay child support. You have taken the proper path to file a motion of distraint for paid child support. You need to be aware that distraint proceedings are a complicated process which cannot ensure the payment of child support due. In addition to distraint, you also have the opportunity to recover back child support in criminal proceedings and, since 1 January 2005, back child support has been recoverable through “alternative” child support, provided pursuant to Act No. 452/2004 Coll. on Alternative Child Support. I recommend utilizing this opportunity right away. The conditions for exercising a claim for alternative child support are the following: a) failure of the obliged person to pay child support in full, pursuant to a final and enforceable ruling of the court, for at least three consecutive months from when the most recent installment of child support was paid; b) inability to ensure payment of child support through a court ruling (in your case, the motion for distraint you have already filed is sufficient); c) the minor child’s compliance with compulsory school attendance rules (it is necessary to submit a confirmation that the child is attending school, which the school issues); and d) the minor child permanently resides in Slovakia (which you prove by submitting a confirmation of permanent residence, issued to you by the locally competent registry office). An application for alternative child support is submitted to the locally competent Office of Labor, Social Affairs and Family. If your application for alternative child support is accepted, you will be paid child support in full or in part by the government, which will subsequently recover the alternative child support it has paid from the child’s father, together with a 25% penalty. In my opinion, you should be free to submit at the same time a criminal complaint regarding failure by the child’s father to pay obligatory child support, under §207 of the Penal Code. In practice, I have often encountered situations where the investigator did not regard partial payment of child support to be a criminal offense, instead requiring failure to pay child support in full. Allow me to express an opinion that this approach is not in accordance with the law. It is a question of an interpretation of the law, whether failure to pay child support is understood to mean nonpayment whatsoever or just failure to pay a part. I am inclined toward opining that failure to pay child support should also be understood as payment of child support that is lower than the amount the court determined in its ruling.