Frequently asked questions (FAQ)
Parental care includes the custody of the minor child, the administration of his property and the representation of the child in any case or legal action or trial concerning his person or his property. Custody includes managing the child’s day-to-day affairs and determining where the child lives.
According to the new law 4800/2021, for co-custody, the parents after the divorce or the annulment of the marriage or the dissolution or annulment of the cohabitation agreement or the interruption of the cohabitation of the spouses or the parties to the cohabitation agreement and if both are living , they still have mandatory joint and equal parental responsibility. By way of derogation from the above, the parents can, by a document of a certain date, regulate the distribution of parental care differently, while in case of disagreement, the Court decides.
Pursuant to the provisions of Article 1515 of the Civil Code, as replaced by the above law and the father of the child, who was born out of wedlock and if the has recognized voluntarily or through his treatment, he automatically exercises joint parental responsibility and equally with the mother. But in the event that the child was born and remains out of wedlock, without having been recognized by his father, he exercises parental care his mother.
With the above law 4800/2021, the presumption of minimum personal contact of the parent with whom the minor child does not reside is established and which presumption is set at 1/3 of the total time. In this way, the communication of the parent with whom the child does not live, with his physical presence and residence of the child in his parent’s house, is attempted as much as possible. In the event that the communication that the parent with whom the child does not reside currently has, falls short of this time, he has the right to request an extension according to the rebuttable presumption of minimum time.
Based on article 1532 of the Civil Code, improper exercise of parental care constitutes a) the culpable non-compliance with decisions and provisions concerning the child or the agreement of the parents regarding the exercise of parental care b) the disruption of the emotional relationship with the other parent and his family, c) the culpable violation of the terms of the parents’ agreement or the court decision for the child’s communication with the parent with whom he does not live, d) the bad exercise or the culpable omission of the right to contact, e) the parent’s unjustified refusal to pay child support, as well as f) the conviction of the parent by a final court decision for domestic violence or for crimes against sexual freedom or for crimes of economic exploitation of sexual life. In these cases, the court can remove from the guilty parent the exercise of parental care or custody, in whole or in part, and assign it to the other parent.
Agreements of the parents regarding the exercise of parental care or communication with the child, which have been drawn up before the entry into force of the law, i.e. until 16.09.2021, are valid, unless the court makes a different arrangement at the request of one of the parents , which is submitted within a period of two (2) years from the entry into force of this law, in order to harmonize with the new legal data. In addition, transitional provisions are foreseen, whereby the proposed regulations are also applied to pending cases, as long as an irrevocable decision has not yet been issued.
According to 1400 AK, the possibility of the spouse who has contributed to the increase of the other’s property in any way is recognized to demand the return of the part of the increase that comes from his own contribution.
According to sec. b of par. 1 of no. 1400 AK creates a rebuttable presumption that the contribution to the increase of the property of the other spouse amounts to 1/3. This means that I can claim this percentage, unless it turns out that my contribution is less or more.
There is no possibility of projecting the claim until the decision becomes final or a 3-year gap occurs. Furthermore, the claim to participate in the acquisitions is time-barred two years after the dissolution or annulment of the marriage, which starts from the day after the decision dissolving or annulling the marriage has become irrevocable.
As far as real estate is concerned, it is recognized by article 1262 no. 4 A.K., the possibility of registering a mortgage, which each spouse has for his claim from the increase of the property of the other spouse according to article 1400 A.K. As far as mobiles are concerned, it is possible for the beneficiary to apply for preventive seizure, but he must prove an existing risk of loss/disposal by the debtor.
For the property relations of cohabitants, the provisions of the Civil Code for marriage apply, unless the parties regulate otherwise (no. 5 par. 2 Law 4356/2016). Thus, the position can be supported that there is a proportional application of no. 1400 AK. However, according to the prevailing opinion, the provisions of unjustified enrichment are applicable, even before the drawing up of the pact (no. 6 of the aforementioned law).