CASE OF STOYANOVA-TSAKOVA v. BULGARIA
Remainder inadmissible;No violation of Art. 6-1
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1956 and lives in Sofia. 6. Following a petition from her former husband, on 29 October 1998 the Sofia District Court dissolved their marriage. It gave the applicant custody of the couple’s only child, and also gave her the use of the former matrimonial home. It found that this home was a flat acquired jointly by the former spouses during their marriage, situated in the “Strelbishte” neighbourhood of Sofia, and intended by them to fulfil the family’s housing needs (the applicant had moved into that flat in 1997 although it had not been fully finished). The fact that the applicant’s former husband had never lived there was of no relevance, as this had been the result of his disregarding his duty to cohabit with his spouse. As the applicant had been given custody of their only child, the court held that she was entitled to use the flat. 7. The applicant’s former husband appealed against the court order relating to the former matrimonial home. He averred that this home was in fact another flat – situated in the “Borovo” neighbourhood of Sofia and coowned by him and his mother and sister – where the spouses had lived before their de facto separation in 1995. 8. On 16 June 2000 the Sofia City Court upheld the order. It agreed with the Sofia District Court that the former matrimonial home was the flat in “Strelbishte”, as it had been acquired, by means of a preliminary contract with the builder, during the marriage, for the family’s housing needs, as at that time the spouses had not owned another home, and as the applicant and her child had been living there at the time when the marriage was dissolved. The flat in “Borovo” was not the former matrimonial home, because it was co-owned by the applicant’s former husband and third parties and both spouses had left it in 1995. 9. The applicant’s former husband appealed on points of law. 10. In a judgment of 29 March 2001 the Supreme Court of Cassation quashed the lower court’s judgment and remitted the case. It held that the former matrimonial home was the flat in “Borovo”, not the one newly built in “Strelbishte”. According to its settled caselaw, the former matrimonial home was the one which had been used before the dissolution of the marriage and, in case of a de facto separation preceding the dissolution, the one used before the separation. 11. On remittal, the Sofia City Court, in a judgment of 20 March 2002, again upheld the order of the Sofia District Court. It relied on interpretative decision no. 12/1971 of the Plenary Meeting of the Supreme Court (see paragraph 18 below), according to whose point 2 (b), in the event of a de facto separation, the former matrimonial home is the one acquired during the separation with funds accumulated during the marriage. On this basis, it found that the former matrimonial home was the flat in “Strelbishte”. Given the unambiguous rule set out in the interpretative decision, the fact that the spouses had not lived in that flat together was immaterial. 12. The applicant’s former husband appealed on points of law. 13. The Supreme Court of Cassation held a hearing on 9 October 2002. The applicant was represented by counsel, who asked the court to dismiss the appeal and said that he had developed his arguments in a memorial which he filed during the hearing. 14. In the memorial, which ran to four pages, the applicant’s counsel argued that the Sofia City Court had not erred by taking into account interpretative decision no. 12/1971 instead of the guidelines of the Supreme Court of Cassation given in the judgment of 29 March 2001, since where there was conflict between the instructions given in a specific case and the solution envisaged by a binding interpretative decision the latter prevailed. He further presented a number of arguments why the flat in “Strelbishte” was the former matrimonial home and why its use should be given to the applicant. He asserted that this flat had been acquired by the spouses with a view to fulfilling the family’s housing needs, that the applicant had contributed financially to its acquisition and that the only reason why she did not have title to it was her former husband’s protracting the conclusion of the final contract for its acquisition from the builder. The applicant had brought a separate suit, seeking a court order declaring the preliminary contract with the builder final. However, that suit was still pending. The spouses had lived in the flat since 1997, but even assuming that the applicant’s former husband had not done so throughout the entire period, this had been due to his dereliction of the duty to cohabit with his wife. The applicant and her child could not live in the flat in “Borovo”, because this was not the former matrimonial home, and this would mean cohabiting with their former inlaws, with whom they did not have good relations. 15. On 21 November 2002 the Supreme Court of Cassation quashed the Sofia City Court’s judgment. In the beginning of its twoandahalf page opinion it observed that the applicant had not made submissions in the proceedings before it. It found no indication that the spouses had obtained title and thus acquired the flat in “Strelbishte” during the marriage; there was merely a preliminary contract in respect of it. The date of delivery of the flat was irrelevant. Therefore, point 2 (b) of interpretative decision no. 12/1971 (see paragraph 18 below) was not applicable. However, even if the spouses had acquired the flat during the marriage, it would not have become the matrimonial home, because it had not been acquired in order to fulfil the family’s housing needs. Where a home had not been acquired for such purpose, point 2 (b) was inapposite on account of the repeal in 1991 of a communist-era statute restricting the number of properties which an individual was allowed to own. Thereafter, the contribution of funds by both spouses could be of importance solely for the existence or otherwise of a joint title to a home acquired during the marriage, not for its designation as the matrimonial home. The former matrimonial home was the flat in “Borovo”, as the spouses had lived there before their de facto separation in 1995. Since the couple’s child was already an adult and since the applicant shared some of the responsibility for the breakdown of the marriage, the use of the former matrimonial home was to be given to her former husband. 16. On 29 November 2002 the applicant’s counsel asked the Supreme Court of Cassation to rectify the statement in its judgment that he had not made any submissions in the cassation proceedings. He considered that statement to be an obvious mistake, because, as noted in the minutes of the hearing, he had filed a memorial, which featured after page 10 in the case file. On 6 December 2002 the court refused, saying that only errors in the operative provisions of a judgment could be rectified. 17. Article 107 § 1 of the 1985 Family Code provides that when a court allows a divorce petition, it must give the use of the former matrimonial home to one of the spouses if it cannot be used separately by both of them. In reaching its decision, the court must have regard to the interests of the children, the fault for the breakdown of the marriage, the health of the spouses and all other relevant circumstances. 18. Interpretative decision no. 12/1971 of the Plenary Meeting of the Supreme Court (постановление № 12 от 28 ноември 1971 г., Пленум на ВС) was adopted on 28 November 1971 under the 1968 Family Code (which was superseded by the 1985 Family Code). It deals with all issues relating to the use of the former matrimonial home. Point 2 (b) of its operative provisions defines the former matrimonial home as the one acquired while the spouses were separated de facto, but with funds accumulated during the marriage.