The family is the basic and natural unit of society and requires the full protection of the State. The Constitution of the Republic of Azerbaijan guarantees the right of everyone to marriage. Thus, according to the first provision of Article 34 of our Constitution, everyone has the right to marry at the age provided by law. Provisions and regulations on family legislation in Azerbaijan are mainly codified and enshrined in the Family Code.
I. Rules and conditions of marriage
Marriage is a voluntary union of a man and a woman registered with the relevant executive authority for the purpose of marriage. The second paragraph of Article 34 of our Constitution states that marriage is concluded on the basis of voluntary consent. No one can be forced to marry.
A. The order of marriage
The marriage is concluded in the presence of the registry offices and the consular office of the Ministry of Justice one month after the date of the application, with the attachment of a certificate confirming that the persons wishing to enter into the marriage have passed a medical examination. The age of marriage in the Republic of Azerbaijan is 18 years. Husband and wife have equal rights during marriage. It is both a right and a duty of parents to take care of their children and bring them up.
B. Terms of marriage
In order to conclude a marriage, the written consent of the parties to the marriage, the submission of a certificate confirming that they have passed a medical examination, and their reaching the age of marriage are required. Marriage between the following persons is not allowed:
- close relatives (parents and children, grandparents and grandchildren, siblings (common father and mother), brothers and sisters);
- adopters and adoptees;
- persons who are married to one or both of them are married;
- persons who refuse to submit a certificate confirming that they have passed a medical examination;
- one or both of them are considered incompetent by the court as a result of mental illness or insanity.
C. Marriage contract
A marriage contract is an agreement concluded between the parties to a marriage, which defines the property rights and obligations of the spouses during the marriage and (or) in the event of the dissolution of the marriage. The marriage contract may be concluded on the property that the couple has and will receive in the future. The spouses have the right to determine in the marriage contract the mutual maintenance of each other, the methods of participation in each other’s income, the rights and obligations of each in the family expenses, the property of each in case of divorce and any other provision on property relations. The marriage contract may include terms related to mediation.
D. Rights and responsibilities of spouses
In accordance with the equality of rights of men and women enshrined in the Constitution of the Republic of Azerbaijan, husband and wife shall have equal personal and property rights in family relations. Motherhood, fatherhood, upbringing and education of children, as well as other family issues are resolved jointly in accordance with the principles of equality of spouses.
E. Determining the children’s place of residence
When the parents live separately, the children’s place of residence is decided with their consent. In case of disagreement between the parents, the court resolves the dispute taking into account the rights and interests of the children, their opinion and other circumstances (children’s attachment to brothers and sisters, each parent, moral and other personal qualities of the parents, age, development and upbringing of the child).
II. Grounds for dissolution of marriage
A marriage is dissolved when the husband or wife dies or is declared dead by a court. A marriage may be dissolved on the application of the husband (wife) or both of them, as well as on the application of the guardian of the husband (wife) who is considered legally incapable. A husband may not file for divorce without his wife’s consent during her pregnancy or for one year after the birth of the child. Termination of marriage is carried out by the registration offices of the Ministry of Justice, and in cases provided by law, by the court.
A. Participate in the initial mediation session
The following disputes arising from family relations can be resolved through mediation:
- conditions for continuation of marriage;
- the procedure for exercising parental rights and responsibilities;
- determination of the child’s place of residence;
- the procedure for keeping a child and other disabled family members;
- other disputes arising from family relations.
B. Judicial dissolution of marriage
If the spouses have common minor children or if the husband (wife) does not agree to the dissolution of the marriage, the marriage shall be dissolved in court. With the consent of the spouses, but one of them avoids the dissolution of the marriage in the registry office (refuses to apply, does not come for state registration of the dissolution of the marriage, etc.), the dissolution of the marriage is carried out in court. When the court finds that it is impossible for the couple to live together and maintain the family, the marriage is dissolved in court. If one of the parties does not agree to the dissolution of the marriage, the court may adjourn the case by setting a period of 3 months for the couple to reconcile. In the absence of reconciliation or when they (one of them) insist on the dissolution of the marriage, the marriage is dissolved. If a couple with common minor children mutually agrees to the dissolution of the marriage, the marriage shall be dissolved without a judicial investigation of the reasons for its dissolution.
III. How does the division of property take place?
The property acquired by the spouses during the marriage is considered to be their joint property. To the joint property of the spouses:
- income, pensions and benefits received by each of them as a result of labor, entrepreneurship and intellectual activity, as well as other non-specific cash payments (amount of disability, disability, financial assistance and etc.);
- Movable and immovable property, securities, credit institutions, etc. obtained from the total income of the spouses. shares in commercial organizations, deposits, shares in capital and any other property acquired by the spouses during the marriage, regardless of in whose name the property was acquired from the spouses, or in whose name or by whom the deposit was made.
The right of ownership, use and disposal of the couple’s common property shall be exercised by mutual consent. If one of the spouses makes a disposition agreement on the common movable property that should not be registered in the official register, then it is presumed that he is acting with the consent of the other. If one of the spouses has entered into a disposition agreement on their common property without the consent of the other, and the other party to the transaction knew or should have known that there was no such agreement, it may be disputed by the husband (wife) who did not agree to the transaction.
Division of the common property of the spouses is carried out during the marriage, as well as after the dissolution of the marriage at the request of one of them, as well as when the creditor applies for the division of the common property to direct the payment to the share of one of them in the common property. The common property of the spouses may be divided on the basis of their agreement. Such an agreement may be notarized at the request of the spouses.
IV. Alimony obligations of parents and children
Parents have a responsibility to support their children. The rules and forms of child custody are determined independently by the parents. Parents have the right to enter into an agreement on the maintenance of their minor children (alimony agreement). If the parents do not keep their children, child support (alimony) is withheld from the parents in court.
In the absence of consent to the payment of alimony, the court collects the following amount of alimony for children from their parents each month:
- for 1 child — a quarter of earnings and (or) other income of parents;
- for 2 children — one third of earnings (other income);
- for 3 or more children — half of earnings (other income).
The amount of these shares may be reduced or increased by the court, taking into account the family and financial situation of the parties, as well as other circumstances.
Able-bodied adult children are obliged to support and care for their disabled parents who need financial assistance. In the absence of an agreement on the payment of alimony, alimony for parents who are unable to work and in need of financial assistance shall be withheld from children who are able-bodied and have reached the age of majority.
V. Application of family legislation to family relations with the participation of foreigners and stateless persons
Terms of marriage for a foreigner in the territory of the Republic of Azerbaijan shall be determined by the legislation of his country and in compliance with the requirements of Article 12 of the Family Code. If the person concluding the marriage does not have citizenship, the terms of the marriage shall be determined by the legislation of the country of permanent residence.
Marriage between citizens of the Republic of Azerbaijan residing outside the territory of the Republic of Azerbaijan shall be concluded in diplomatic missions and consular posts of the Republic of Azerbaijan in accordance with the requirements of the law. Marriages concluded between foreigners in diplomatic missions or consular posts of foreign countries in the Republic of Azerbaijan shall be considered valid in the Republic of Azerbaijan.
Marriages between citizens of the Azerbaijan Republic outside the Azerbaijan Republic, between citizens of the Azerbaijan Republic and foreigners or stateless persons in accordance with the legislation of that foreign country shall be considered valid in the Azerbaijan Republic, unless there are circumstances preventing the marriage. Marriages concluded between foreigners outside the Republic of Azerbaijan in accordance with the legislation of their country shall be recognized in the Republic of Azerbaijan.
As an ACON team, we represent both foreigners and local citizens in family law litigation and represent their interests in court. Protecting the rights and interests of our clients in connection with the divorce process (division of property, determining who will stay with the child, alimony, taking the child abroad) is a top priority for us.