Divorce lawyer in Bosnia and Herzegovina - procedure, spouses' rights and expert representation

Divorce is one of the most complex procedures in the family law of Bosnia and Herzegovina. Since it is governed by the family acts of the Federation of BiH, Republika Srpska and the Brcko District of BiH, divorce requires thorough knowledge of court procedures, the rights of spouses and the mechanisms protecting children. The Prnjavorac Law Office provides expert legal assistance and representation in divorce proceedings throughout Bosnia and Herzegovina - from Sarajevo and Tuzla, through Zenica, Banja Luka and Bijeljina, to Mostar, Brcko and other cities. One of the first questions clients ask concerns the costs of the proceedings, so the following sections explain what they depend on and how the attorney's fee is calculated. For an additional overview of relevant decisions, see the case law on divorce in BiH and the family law case law (in Bosnian).

1. Types of divorce in Bosnia and Herzegovina

The legislation of BiH recognises two basic routes to divorce: consensual divorce and divorce upon a claim (contested proceedings). The choice depends on the spouses' ability to reach agreement on all key questions.

▸ Consensual divorce

Consensual divorce is the faster, more economical and emotionally less demanding way of ending a marriage. The spouses jointly, directly or through an attorney, submit a request for divorce to the court, provided the following conditions are met: at least six months have passed since the marriage was concluded, agreement has been reached on all essential questions (parental care, maintenance, the children's contact with the other parent, mutual maintenance), and the statutorily mandatory mediation has previously been carried out. If the conditions are met and the agreement protects the interests of the children, the court delivers its judgment after the hearings, without conducting extensive evidentiary proceedings.

A judgment delivered upon a request for consensual divorce may be challenged only on limited grounds: serious breaches of the rules of civil procedure, consent to the divorce given in error or under the influence of coercion or fraud, or the statutory conditions for a consensual divorce not having been met.

Advantage: The spouses retain control over the outcome - they arrange the questions themselves instead of having the court decide them.

▸ Divorce upon a claim (contested proceedings)

Where agreement is not possible, either spouse may initiate contested divorce proceedings by filing a claim with the competent court in Sarajevo, Tuzla, Mostar or another competent court in BiH. The statutory ground is the fact that the marital relations have been seriously and permanently disrupted and that the community of life can no longer be maintained. BiH applies the principle of no-fault divorce - confirmation of a permanent breakdown of marital relations is sufficient.

Key features of contested divorce: a judgment may not be delivered by default or on the basis of an admission; a power of attorney for representation must expressly refer to the matrimonial dispute, and the question of the admissibility of revision against a final divorce judgment has been elaborated in case law. The right to divorce is strictly personal in nature: it does not pass to heirs, and upon the death of a spouse the marriage ends by operation of law, so divorce proceedings already initiated are discontinued in that case.

The 2014 amendments to the Family Act of the FBiH (Official Gazette of the FBiH 31/14) deleted the earlier restriction in Article 43 under which the husband could not file a divorce claim during the wife's pregnancy or until their child reached the age of three. Today either spouse may file a claim, and the protection of the family in those situations is achieved through mandatory mediation, which since those amendments has been expressly required during the wife's pregnancy as well.

During the proceedings a transition from one form to the other is possible: if one spouse files a claim and the other, at the latest by the close of the main hearing, expressly declares that the claim is not contested, the spouses are deemed to have submitted a request for consensual divorce. Conversely, if one spouse withdraws from the request for consensual divorce while the other maintains that the marriage should be dissolved, the request continues to be conducted as a divorce claim.

A specific feature of family law in BiH is its divided jurisdiction - the Federation of BiH, Republika Srpska and the Brcko District have separate family acts that largely coincide on the key points but differ in procedural details. The canton or entity in which the parties currently live (and not necessarily the one in which the marriage was concluded) can significantly affect how the proceedings are conducted, particularly with respect to interim measures, maintenance and property relations. In practice this means that the claimant chooses between the court of the respondent's residence and the court of the spouses' last joint residence: a couple who last lived together in Banja Luka conducts the proceedings before the court in Banja Luka regardless of the marriage having been concluded in Sarajevo, which often shortens the proceedings. An experienced attorney assesses this strategy at the very beginning of the case, because the choice of court determines not only the speed of the proceedings but also the amount of the court fees and the specific practice in interpreting contested questions.

▸ How much does a divorce in BiH cost

The costs cannot be expressed as a single amount because they follow the chosen route to divorce. Consensual divorce is as a rule the most affordable, since it is concluded in fewer hearings and without extensive evidentiary proceedings. Contested divorce is more expensive because of its longer duration, the greater number of hearings and possible expert assessments, most often a psychological assessment in custody disputes. The total amount is also affected by court fees, which differ by entity and canton, and by the foreign element where certified translations, an apostille and recognition of a foreign judgment are required. The attorney's fee is calculated according to the Attorney Tariff of the FBiH or the attorney tariff of Republika Srpska, depending on the court before which the proceedings are conducted. We do not publish a flat price because it would be unusable for a specific case: a cost estimate is given after reviewing the documentation, and the scope of representation is agreed before the case is taken on.

2. Mandatory mediation before divorce

The law prescribes a mandatory procedure of mediation before divorce in cases where the spouses have joint minor children or the wife is pregnant. The authorised mediator (an expert of the social welfare centre, a psychologist or a specially authorised attorney) seeks to remove the causes of the disruption of the marital relations, to inform the spouses of the consequences of divorce and to help them reach agreement on the questions concerning the children.

• Personal participation: The spouses must attend the mediation meetings in person; sending an authorised representative is not permitted.
• Exemptions: Mediation is not mandatory if there are no joint minor children, if the residence of the other spouse has been unknown for at least six months, or if that spouse has been deprived of legal capacity.
• Interim decision: If mediation produces no agreement on the child, or the agreement is not in the child's interest, the guardianship authority decides on an interim basis with whom the child will live, on contact and on maintenance. That decision remains in force until the divorce decision becomes final, and an appeal does not stay its enforcement.

Clients living abroad: in the mediation procedure an authorised representative may not represent the spouses or attend the meetings, so personal participation in that part cannot be replaced by a power of attorney. A request for mediation may exceptionally be submitted to an authorised person outside the place of residence, and where there are no joint minor children mediation is not mandatory, so the divorce can then be carried out without coming to BiH.

Without completed mediation (where the law makes it mandatory), the court will dismiss the claim or request for divorce.

3. Custody, maintenance and contact with children

The question of children in divorce has absolute priority. The court must decide on the exercise of parental care (in Republika Srpska: parental rights): with whom the children will live, the manner of maintaining contact with the other parent and the amount of maintenance (child support). The guiding principle is the best interests of the child, and case law has developed criteria on the decisive factor in entrusting children to one parent.

A note on terminology: everyday speech uses the expression custody of children, while the Family Act of the FBiH speaks of the exercise of parental care and of entrusting the child to one parent. Guardianship is, in the Act, a separate institute concerning children without parental care.

• Custody (entrusting the child): The law starts from the premise that the parents care for the child jointly, by agreement and as equals. Where they do not live in a family community, parental care is exercised by the parent with whom the child lives, unless the parents agree otherwise; if there is no agreement, the court refers them to an authorised mediator. In practice the child is most often entrusted to one parent, with a precisely defined contact schedule.
• Maintenance: Both parents are legally obliged to maintain their minor children. The amount is determined according to the child's needs and the obligor's means. The obligation extends to an adult child in full-time education (up to the age of 26).
• The child's opinion: Before deciding, the court will hear a minor child if the child is capable of understanding what is at stake, and the child's opinion is given particular weight when measures separating the child from a parent are decided.
• Modification of the decision: Where substantially changed circumstances so require, the court, upon a claim by a parent or the guardianship authority, delivers a new decision on the care of the child and on the amount of maintenance.
• Contact with the children: The parent who does not live with the child has the right and the duty of regular contact. The judgment specifies the schedule (weekends, holidays, annual leave).
• Protective measures: In cases of domestic violence, urgent protection measures are imposed (restraining orders, removal from the joint home), and in separate proceedings the court may restrict or remove parental care from a violent parent.

4. Division of marital property and financial questions

The financial aspect of a divorce is often the most complex part of the proceedings. The laws of BiH distinguish between separate property (property acquired before the marriage, inherited or received as a gift) and joint property - marital property (everything acquired through work during the marital community, regardless of whose name it is registered in).

What is decisive for the calculation is the duration of the marital community, not the date of the divorce judgment: property acquired after the de facto end of the marital community as a rule no longer forms part of the marital property, so in a dispute the moment when the community of life actually ended is precisely established.

The statutory presumption is an equal co-ownership division (50:50), from which the courts may in practice depart, with non-financial contribution also being valued - running the household, raising the children, support that enabled the other spouse's career. The division is carried out by agreement (a contract before a notary) or through the courts. A marital contract (in practice also called a prenuptial agreement) may be concluded before the marriage and during the marital community and arranges the property relations in advance, but the spouses may not agree that the law of another state applies to their property relations.

An example from our practice: spouses from Sarajevo with marital property worth several million KM (the family house, two flats, business premises, shares in a company and vehicles) divided their entire property out of court, with a single contract on the division of marital property drawn up before a notary, in less than a month and without a single hearing. The out-of-court division preserved business discretion and correct relations for the sake of the children, and the total costs were many times lower than in years of litigation.

A former spouse may also claim maintenance for himself or herself if they lack sufficient means of subsistence, with those conditions being specifically proven, and such maintenance is usually limited in time. A claim for the maintenance of an unprovided-for former spouse is as a rule raised at the latest by the close of the main hearing in the divorce proceedings; exceptionally, maintenance may be sought by a claim within one year of the end of the marriage, if the statutory conditions already existed at the time of the divorce and continued without interruption. The division of marital property is sometimes decided in separate proceedings after the divorce, which calls for experienced legal representation.

5. International divorces and recognition of foreign judgments

When citizens of BiH divorce abroad, most often in Germany, Austria or Switzerland, the foreign divorce decision must be recognised in BiH in order to produce legal effect. The procedure for recognition of a foreign court judgment is conducted before the cantonal courts (FBiH), the district courts (RS) or the Basic Court of the Brcko District. After the recognition decision becomes final, the divorce is entered in the civil registers of BiH. The same applies to divorces conducted before a domestic court: the court serves the final judgment ex officio on the competent registrar for entry in the register of marriages, so the parties need not initiate separate registration proceedings. More on the current practice of recognition of foreign court decisions in BiH (in Bosnian).

Divorces carried out through administrative channels (before a notary) abroad can also be recognised if they meet the conditions of the Act on the Resolution of Conflicts of Laws. With a properly prepared petition and certified translations, recognition in most cases proceeds without difficulty.

Surname: The six-month time limit for reverting to the maiden surname runs from the finality of the decision recognising the divorce in BiH, not from the date of the divorce abroad - key information for citizens in the diaspora.

A foreign court has no jurisdiction over property in BiH - the division of real estate on the territory of Bosnia and Herzegovina is carried out exclusively by a domestic court or resolved by a separate agreement. Coordinating proceedings in several states requires an attorney experienced in private international law.

6. Why engage the Prnjavorac Law Office?

Whether it concerns a consensual divorce, complex contested proceedings, an international divorce or a sensitive custody dispute - an experienced divorce lawyer makes the key difference. Since 1993 the office has represented parties in more than 1,000 divorce proceedings throughout Bosnia and Herzegovina. The Prnjavorac office provides:

• Representation in consensual and contested divorces throughout BiH
• Expert conduct of child custody and maintenance proceedings
• Division of marital property and resolution of property disputes
• Recognition of foreign divorce judgments and international divorce cases
• Legal assistance to BiH citizens in the diaspora

For consultations and legal representation in divorce proceedings, contact the Prnjavorac Law Office. We take on every case individually and according to the specific features of the particular legal situation.