Notarial Acts Concerning Family Law

A notary may grant divorce upon agreement of the spouses.

NECESSARY DOCUMENTS

• Identity documents (ID-card or passport);

• A document certifying the contraction of marriage if the data are missing in the register.

If necessary, a foreign document must be legalised or authenticated by an apostille.  A foreign document must be translated by a sworn translator into Estonian, Russian, or English, unless the document is already in Russian or English. An overview about countries whose documents certifying the contraction of marriage are not apostilled or legalised can be found here: Apostilles.

The spouses shall make a joint application for divorce at a notary. The form of the joint application for divorce can be found here:

• Application of divorce (PDF) (PDF), the version that can be completed in a computer can be found here: Application of divorce (filled out electronically) (PDF) (PDF)
• Application of divorce for same-sex marriages (PDF) , the version that can completed in a computer can be found here: Application of divorce for same-sex marriages (filled out electronically) (PDF)

If a spouse cannot appear with good reason at a notary’s office in person, he or she may submit a separate notarially authenticated application. The form for the separate application can be found here: Abielu lahutamise eraldi esitatav avaldus (PDF) (PDF), the version that can be completed in a computer can be found here: Abielu lahutamise eraldi esitatav avaldus (arvutis täidetav) (PDF) (PDF). 

The application for divorce can also be submitted to a notary via remote authentication. However, in order to get a divorce at least one of the parties has to come personally to the notary’s office. More information about remote authentication and face recognition can be found here: Remote authentication and facial recognition

If the application for divorce is submitted via remote authentication, the form that can be completed in a computer is downloadable from the website of the Ministry of the Interior: https://www.siseministeerium.ee/et/eesmark-tegevused/rahvastikutoimingud . 

After the submission of the application for divorce, the notary sets the date for the divorce. On that date the notary grants the divorce in the presence of both spouses.

If a spouse cannot appear with good reason at a notary’s office in person, he or she may submit a separate notarially authenticated consent for the divorce without his or her presence.

TERM FOR GRANTING DIVORCE

Divorce can be granted between one month and three months from the date on which an application for divorce was submitted.

NOTARY FEE

The notary charges ca 77 euros as the notary fee, which covers the receipt of the application, counselling and making the entry.

In case an application for divorce has been submitted to a notary and the latter has also given advice to the applicants, but the divorce is not granted for reasons beyond the control of the notary, the notary fee is 54 euros.

SURNAME

Upon divorce, a spouse may:

• Keep the surname he or she had during the marriage;
• Restore the surname, which he or she last had before the marriage being divorced;
• Restore the surname, which he or she last had before the first marriage.

DOCUMENT CERTIFYING DIVORCE

After granting a divorce the notary issues divorce certificates for the former spouses upon their request.

The initial certificate is issued within 14 days free of charge.

After 14 days from the divorce the local government issues the divorce certificate or a duplicate certificate, if necessary. A state fee, as prescribed in the State Fees Act has to be paid for issuing such a certificate.

Upon contracting a marriage, the spouses select a proprietary relationship that can be changed later, if necessary, by concluding a marital property contract.

The Family Law Act provides three types of proprietary relations to choose from:

• Jointness of property;
• Set-off of assets increment;
• Separateness of property.

If the spouses select set-off of assets increment or separateness of property as their proprietary relationship, an entry is made in the marital property register about it.

SELECTION OF PROPRIETARY RELATIONSHIP

Jointness of property

Jointness of property creates the strongest economic ties between the spouses. Property acquired during this proprietary relationship belongs jointly to the spouses and the spouses can conclude transactions with such property only jointly.

In addition, each spouse has separate property, which includes:

• Personal effects;
• Property acquired before marriage;
• Property acquired during the marriage without charge, i.e., as a gift or by succession;
• Property acquired on account of separate property.

A spouse can conclude transactions with separate property without the consent of the other spouse. BY WAY OF EXCEPTION, the spouses can only sell or mortgage jointly their home that is part of separate property. Such restriction applies from 1 January 2015 to immovables acquired as a gift or by succession. It is possible to agree in the marital property contract not to apply this restriction.

Set-off of assets increment

The proprietary relationship of set-off of assets increment means greater proprietary independence to the spouses than jointness of property, and more guarantees to the spouse in a weaker financial position than separateness of property.

Objects obtained during this proprietary relationship do not become automatically joint property of the spouses.

Transactions with the home can only be concluded with the consent of the other spouse, irrespective of which of them owns the immovable. It is possible to agree in the marital property contract not to apply this restriction.

Pursuant to this proprietary relationship the property of the spouses is made up of:

• Fixed assets; and
• Acquired assets.

Fixed assets are assets that belonged to a spouse before marriage and assets that the spouse has acquired by succession or as a gift.

Acquired assets are assets that a spouse has acquired during the proprietary relationship, e.g., as wages or business income.

In the case of divorce acquired assets are to be set off, i.e., the spouse who had fewer acquired assets has the right to demand compensation from the other spouse.

Separateness of property

In the case of separateness of property, the spouses are completely independent from each other in terms of property. The acquisition of property does not result in joint ownership, and the consent of the other spouse is not required to conclude transactions.

A marital property contract can be used to:

• Replace one proprietary relationship with another;
• Terminate the proprietary relationship that was selected;
• Conclude other agreements permitted by law.

For example, upon contracting the marriage the spouses chose the separateness of property but would now like to have closer proprietary ties and therefore select the jointness of property or set-off of assets increment as their preferred option. In order to establish the new proprietary relationship, a marital property contract has to be concluded.

Spouses who have chosen the jointness of property or set-off of assets increment as their proprietary relationship, may, in certain cases specified in the Family Law Act conclude agreements amending this relationship. For example, spouses using the jointness of property regime may declare a single object from the separate property of one spouse to become joint property or declare an object from the joint property of the spouses to become separate property of one spouse by a marital property contract.

Formal requirements

A marital property contract can only be concluded personally at a notary. It is not possible to do so by using a representative. An entry is made in the marital property register about the conclusion of a marital property contract. The data in the register are public.

Notary fee

The notary fee upon changing the proprietary relationship by opening a registry card is approximately 90 euros.

The notary fee upon changing the proprietary relationship by changing the entry in the registry card is approximately 72 euros.

In other cases, the fee depends on the value of the property.

Please contact a notary if you have questions about a transaction and would like to get additional information. The contact data of the notaries can be found from the homepage of the Chamber of Notaries: List of notaries.

By marrying a man and a woman commence marital cohabitation which obligates them to respect and support each other.

Spouses have equal rights and obligations with respect to each other and family.

They organise together their marital cohabitation and satisfaction of the needs of their family considering the well-being of each other and their children and they shall each accept responsibilities relating to marriage with regard to the other. Spouses participate in the organisation of shared household and earning of income to the best of their ability. A spouse shall select his or her area of activity and operate in his or her area of activity by making the best use of his or her ability to obtain the assets for maintenance of his or her family.

Non-performance by one of the spouses of the obligations specified above can only be the basis for divorce. This means that a spouse cannot turn to a court of law to demand performance of these obligations by the other spouse.

Spouses have reciprocal obligations to maintain their family, even if they are legally separated.
 
Maintenance of family includes the activities and proprietary contributions necessary for covering the expenses of shared household and for the satisfaction of the common and special needs of both spouses and the children. If a spouse fails to contribute to the maintenance of the family, the other spouse may claim the performance of the obligation in a court of law.

A solidary liability of the spouses arises from the performance of obligations that one spouse or both spouses together have assumed for the organisation of shared household or in the interests of children or in order to satisfy other common needs of the family. However, solidary liability arises only in case the obligations do not exceed the reasonable rate according to the living conditions of the spouses. The law does not elaborate on what a  “reasonable rate” is, and in case of a dispute it is up to the court to decide whether such rate has been exceeded, and the other spouse is not liable for the amount in excess of the reasonable rate.

The husband and wife must be aware of the fact that when they get married, they undertake to (in particular, morally) support and help each other and make every effort for the benefit of the family. If a man and woman are living together, but are not married, they have rights and obligations as parents concerning their children, but the Family Law Act does not regulate or protect the relations between themselves.

The law offers special protection to the rights of the spouses concerning family housing, i.e., the family home, even if the spouse is not the owner of the housing or does not use it on any other grounds. There are limitations to concluding transactions with the shared home and upon the termination of the marriage it is possible to go to court and require that the home to be left in the use of only one of the spouses. A dwelling where the members of a family reside regularly is deemed to be the housing of the family.

If upon termination of marriage the spouses fail to reach an agreement with regard to further use of the shared home (housing of the family) and the furnishings belonging thereto, each spouse has the right to require that the rights and conditions for use of each spouse be determined by court.

By doing so, the court must take the well-being of children into particular account. If the shared home is in sole ownership of one spouse, a court shall grant the use of the home to the other spouse only in case it is necessary to prevent injustice. The specific instances of a particular case remain at the discretion of the judge.

Parents represent children jointly

Both parents jointly can represent their child and conclude transactions on behalf of the child, for the parents who are married to each other have joint legal custody of their child. In exceptional cases, a parent may have sole legal custody of the child, provided the court has so decided.

If the parents of a child are not married to each other at the time of birth of the child, they shall have joint legal custody unless they have expressed their wish to leave legal custody only to one of the parents upon registering the birth of the child or submitting the declarations of intention concerning the acknowledgement of paternity.

Prohibited transactions and special guardian

Parents cannot conclude each and every transaction on behalf of their child, though. This concerns mainly transactions where one party is the child and the other party the parent or the parent’s close relative.

A parent cannot represent a child:

1) In transactions where one party is the child and the other party is the parent, the spouse of the parent, a direct relative, brother, or sister of the parent unless the transaction exclusively concerns the performance of an obligation with respect to the child;

2) In transactions where the child discharges his or her pledge or claim secured by suretyship against the parent, encumbers such a claim, terminates security of a claim, or decreases the security or assumes the obligation to enter into such a transaction;

3) In legal disputes between the child and the persons specified in the above clause 1 and in disputes in matters specified in the above clause 2;

4) In giving away a child's property as a gift (as an exception, it is permitted to make ordinary gifts in order to perform a moral obligation or adhere to etiquette).

Thus, prohibited are the transactions that could involve a conflict of interests between the child and the parents. In order to conclude the above transactions, one should ask a court to appoint a special guardian. The court appoints the person who represents a child in a transaction with a parent. As another option the court may grant its consent for a specific transaction without appointing a special guardian, by replacing a declaration of intention of a child by a court decision which has entered into force.

In addition, the parents cannot represent a child in concluding transactions with property acquired by the child:

1) By succession or as a gift if the bequeather or donor has specified that the property shall not be administered by one or neither of the parents;

2) On the basis of a right included in the property specified in the above clause 1 or as compensation or in return of the transfer of, destruction of, damage to or seizure of objects included in such property.

Parents must administer the property acquired in this manner in adherence to the instructions of the person from whom the property was acquired. Parents may only deviate from the instructions if adherence thereto may damage the interests of the child.

Limitations to transactions and the need for consent of court

In the above transactions the parents have no right whatsoever to represent the child. However, certain transactions can be concluded on behalf of the child only with the prior consent of the court. The parents can conclude the following transactions solely with the prior consent of the court:

1) Dispose (i.e., sell, give as a gift, pledge, encumber in any other way etc.) of an immovable (incl. a ship entered in the ships register) or a real right in immovable property  belonging to the child;

2) Dispose of a claim belonging to the child and directed at transfer of immovable property ownership or creation, transfer, or termination of a real right in immovable property;

3) Assume an obligation to perform the disposals specified in the above clauses 1 and 2;

4) Enter into a contract directed at acquisition for charge of an immovable or a real right in immovable property on behalf of the child;

5) Grant the use of an immovable belonging to the child (e.g., conclude a residential lease contract);

6) Enter into a transaction by which the child assumes an obligation to dispose of all of his or her property, estate, future legal share of an estate or future compulsory portion;

7) Renounce a succession, legacy or compulsory portion or enter into a contract for division of an estate;

8) Enter into a contract directed at acquisition or transfer of an enterprise or an organisationally independent part thereof or a contract of partnership directed at operation of an enterprise;

9) Lease an enterprise;

10) Acquire a holding in a legal person or join membership thereof;

11) Enter into a residential lease contract, commercial lease contract, insurance contract or any other long-term contract which does not terminate, or which cannot be cancelled within one year after the child becomes an adult;

12) Take a loan on behalf of a child;

13) Acquire or transfer securities on behalf of a child, except in the case the parent does this on account of his or her own funds, provided that the proceeds of the sale remain in the ownership of the child;

14)  Enter into a transaction by which the liability of the child arises for the obligation of another person or a transaction by which the child's property is encumbered in order to secure an obligation of another person;

15) Enter into an agreement for the division of common ownership or the preclusion or postponement thereof;

16) Enter into a transaction which terminates the child's claim, reduces it or the security thereof or creates such an obligation.

If a child’s money is not required for maintaining him or her, the administration of property or for covering other current expenses, a parent must invest it in a credit institution of Estonia or another contracting state separately from his or her own property. A notation shall be made upon investment that the consent of a court is required for the disposal of the account.

In addition to the relations between a child and a parent all the above limitations also apply to the relations between a ward and a guardian, if an adult has restricted active legal capacity and a court has appointed a guardian to him or her.

Consent of a court is not required for renunciation of succession on behalf of a child if the child's right to the estate has arisen as a result of renunciation of succession by the parent who has the right of representation with respect to the child. Thus, if a parent wants to renounce succession, it is also possible to renounce succession on behalf of the child.

Obligations to provide maintenance and entitled persons

Spouse

Spouses have reciprocal obligations to maintain their family by their work and assets. This includes the activities necessary for covering the expenses of shared household and for the satisfaction of the common and special needs of both spouses and the children.

Even if the spouses are legally separated, each spouse shall provide maintenance in regularly paid amounts of money for the satisfaction of the common needs of the other spouse, except in case he or she is able to maintain himself or herself or if legal separation was caused by his or her conduct.

A spouse has an equal status with an underage child and shall receive maintenance before an adult child and the rest of the relatives.

Divorced spouse

Maintenance to a divorced spouse must be provided primarily in the following two cases:

1) If, after divorce, a divorced spouse is unable to maintain himself or herself due to caring for their common children. In such a case he or she may request provision of maintenance from the other divorced spouse until the child attains three years of age;

2) If, after divorce, a divorced spouse is unable to maintain himself or herself due to his or her age or state of health and the need for assistance existed at the time of the divorce. In such a case he or she may request provision of maintenance from the other divorced spouse until he or she cannot be presumed to obtain income.

The obligation to provide maintenance terminates upon remarriage of the entitled person and also upon the death of the entitled or obligated person. In certain cases, a court may limit the obligation to provide maintenance (in particular, if payment of support would be extremely unfair).

In the order of entitled persons, the status of a divorced spouse caring for a child and a parent entitled to receive maintenance in the case of birth of a child is after an underage child and they shall receive maintenance before an adult child and married underage child and the rest of the relatives.

In the order of entitled persons, the status of a divorced spouse entitled to receive maintenance due to his or her age or state of health is after an adult child and he or she shall receive maintenance before the rest of the relatives.

Child

First and foremost, it is the parents who must provide maintenance in equal shares to their underage child. An underage child has an equal status with a spouse and in certain cases also with a divorced spouse to receive maintenance.

A child who is acquiring basic, secondary, or higher education or formal vocational education as an adult is also entitled to receive maintenance, but not longer than until he or she attains 21 years of age. In the order of entitled persons the status of an adult child is after an underage child, spouse and a divorced spouse caring for a child.

Other descendant or ascendant who needs assistance and is unable to maintain himself or herself

Such persons can be adult children, grandchildren (etc.), parents, grandparents (etc.), on the condition that they are unable to maintain themselves.

In the order of entitled persons their status is after an underage child, spouse and a divorced spouse caring for a child. In addition, the degree of relationship has to be taken into account as well (for example, the obligation to maintain an adult child comes before the obligation to maintain an adult grandchild).

A parent raising a common child

The other parent is required to provide maintenance to the mother or father raising their common child eight weeks before and twelve weeks after the birth of the child.

If a mother is unable to maintain herself due to pregnancy or due to a health disorder caused by pregnancy or childbirth, the father is required to provide maintenance to her until improvement of her state of health. The same applies if a mother is unable to receive income due to caring for a child. The obligation to provide maintenance commences not earlier than four months before the birth of a child and terminates after three years have passed from the birth of the child.

Ways of providing maintenance and amount of support

The ways of providing maintenance and the amounts are different for different persons. For example, in the case of a spouse, it is the organisation and needs of the family, in the case of a divorced spouse – the usual needs and living conditions of the spouse during marriage.

In the case of the other entitled persons maintenance is generally provided by making periodic advance payments of money for each calendar month.

The scope of maintenance is determined on the basis of the needs and usual lifestyle of the person entitled to receive maintenance. According to the law a parent is required to pay monthly support for an underage child to the extent of half of the minimum wages established by the Government of the Republic. In 2020 the minimum wages were 584 euros (The Government of the Republic 19 December 2019 Regulation No 115, “Establishing the Minimum Wages”). Thus, the minimum monthly amount of support payable to a child is 292 euros.

The persons may conclude an agreement concerning the scope of maintenance, but it is not allowed to exclude the performance of the maintenance obligation in the future or to restrict it  unreasonably.

For example, spouses may, by a notarially authenticated agreement, specify the obligation to provide maintenance (the manner of payment and the amount of support) after divorce different from the provision of the law. The parents of a child may agree to specify the performance of the maintenance obligation and establish the manner and timing of providing maintenance. They may also agree to provide maintenance in a manner other than by making payments in money.

In the case of refusal to pay support, a notarially authenticated agreement concerning a claim for maintenance, by which the debtor has consented to submit to immediate compulsory enforcement, serves as an enforceable title, which can be used to turn to an enforcement agent without the need to go to court first.

When the Registered Partnership Act entered into force in 2016, notaries could start authenticating registered partnership contracts.

Given that to this day the necessary acts to implement the Registered Partnership Act have not been adopted, it is not possible to enter data concerning registered partnerships into the register. Thus, the partners have to take into account the consequences deriving from this.

At present the partners have no possibility to make their partnership and proprietary relationship visible, therefore it could result in double partnerships and endanger both the property of the partners and the interests of third parties. For example, should one of the partners take out a loan, the other partner may have to be liable with his or her property for this loan, for it is not possible to make an entry concerning separate property in the property register and the property of each of the partners could be deemed as joint property.

Under the current legislation conclusion of a registered partnership contract does not grant the partners reciprocal right of succession. Therefore, prospective registered partners should consider making a will.

According to the Registered Partnership Act a registered partnership contract may be entered into between two natural persons of whom at least one has residence in Estonia. Consequently, a registered partnership contract can also be concluded, if one of the partners lives abroad. The foreign partner has to present to a notary a certificate to the effect that he or she has not contracted a marriage or concluded a partnership contract in the country of origin.