Bulgaria is party to the Convention. It has been ratified by law, adopted by the 40th National Assembly on 18.01.2006 – SG No. 9/27.01.2006, Issued by the Ministry of Justice, promulgated, SG No. 15/16.02.2007, effective for the Republic of Bulgaria since 1.02.2007

1.1 Which law applies to questions of custody and legal representation of a minor? Which criteria are used to determine the applicable law?

The criteria used to determine the applicable law for matters of custody and legal representation are regulated by the provisions set out in the Hague Convention; notably, Article 16 § 1 and Article 17 of the Convention set out that the law of the State on whose territory the minor has his/her habitual residence applies to these matters.

Concerning questions falling outside the scope of application of the Hague Convention, the Bulgarian Private International Law Code will apply.

Article 85. (1) The relationships between parents and children shall be governed by the law of the State in which they have a common habitual residence.

(2) If parents and child have no common habitual residence, the relationships therebetween shall be governed by the law of the State in which the child has a habitual residence or by the national law thereof, should this be more favourable to the child.

Article 86. (1) The institution and termination of guardianship and curatorship shall be governed by the law of the State in which the person who is placed under guardianship or curatorship has a habitual residence.

(2) The relationships between the person placed under guardianship or curatorship and the guardian or curator shall be governed by the law which applies according to Paragraph (1).

(3) The obligation to accept guardianship or curatorship shall be governed by the national law of the person designated as guardian or curator.

(4) Provisional or urgent protection measures may be taken under Bulgarian law where the person or any movable or immovable property thereof is situated within the territory of the Republic of Bulgaria.

Article 50. (1) The capacity of a person to enter into legal relationships shall be governed by the national law thereof. Where the law applicable to a specific relationship establishes special conditions regarding the capacity to have rights and duties, the said law shall apply.

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

If the minor has its habitual residence in a Member State of the EU bound by Council Regulation (EC) No 2201/2003 (Brussels IIa Regulation) the application of this Regulation will prevail over both the Hague Convention and Private International Law rules. Thus, Article 8 of the Regulation in general sets out that the international jurisdiction will belong to the Courts of the Member State where the child has its habitual residence.

If the minor has its habitual residence outside a Member State of the EU bound by Council Regulation (EC) No 2201/2003 (Brussels IIbis Regulation) but in a Stateparty to the Hague Convention, the international jurisdiction will be attributed to the judicial and administrative authorities of the Contracting State of the habitual residence of the child, in order to take measures directed to the protection of the child’s property or person (Article 5 Hague Convention).

If the minor has its habitual residence outside a Member State of the EU bound by the Council Regulation (EC) No 2201/2003 (Brussels IIa Regulation) which is not party to the Hague Convention, national Private International Law rules will be applicable.

The Bulgarian court and other Bulgarian authorities shall have jurisdiction to establish and terminate guardianship or curatorship, where the person placed under guardianship or curatorship is a Bulgarian national or is habitually resident in the Republic of Bulgaria –

Art.5.3 of the Bulgarian Private International Code.

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

The rule on international jurisdiction for questions of custody shall apply.

Upon reaching 18 years old, persons shall become of full legal age and fully capable of acquiring rights and assuming obligations – Art. 2 of the Bulgarian Persons and Family Act

Persons who are below the age of 14 are children. Their legitimate representatives – parents or guardians – shall undertake legal action for and on behalf of them – Art. 3 of the Bulgarian Persons and Family Act

Persons from 14 until they reach 18 years old are minors. They shall undertake legal action with the consent of their parents or custodians but for the purposes of meeting their current needs, they may conclude small ordinary transactions and dispose of their earnings – Art. 4 of the Bulgarian Persons and Family Act

2.1 Is it possible that in some cases the legal capacity of a minor is extended (e.g. right to get married, right to make last will)?

Yes

According to Bulgarian legislation, persons who want to enter into marriage have to be at least 18 years old. In exceptional cases, persons who are under 18 years old but over 16 years old can enter into marriage. In the latter case, those persons acquire legal competence but may dispose with immovable property only with the consent of the district judge at the place of permanent residence of the person – Art. 6 of the Bulgarian Family Code. Marriage is the only situation that allows a minor to be emancipated, i.e. to acquire legal competence.

If the answer is yes, then:

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

A court decision is required but not exactly in order to extend the legal capacity itself but in order to give permission for a marriage at an age below 18 years.

Art. 6.2 of the Bulgarian Family Code – By way of exception, where compelling reasons warrant it, a person aged sixteen may also get married with the consent of the district judge at the place of permanent residence of this person. Where both partners are minors and have different permanent addresses, the consent shall be given by the district judge at the place of permanent residence of one of the marrying partners at their choice.

Article 93 of the Civil registration Act. (1) A person’s permanent address shall be that address in the settlement which the person has indicated for entry in the population register.

(2) The permanent address shall always be on the territory of the Republic of Bulgaria.

(3) A person may only have one permanent address.

(4) Bulgarian citizens living abroad who are not recorded in the population register and cannot indicate a permanent address in the Republic of Bulgaria shall be entered officially in the population register of the district of Sredets in Sofia.

(5) A citizen’s permanent address shall be the address for correspondence with the government authorities and the local authorities.

(6) A citizen’s permanent address shall serve for the exercise or use of rights or services in the cases provided for by an Act of Parliament or another statutory act.

(7) A citizen’s permanent address may be the same as his/her current address.

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

As a general rule, minors may undertake legal action with the consent of their parents or custodians but, for the purposes of meeting their current needs, they may conclude small ordinary transactions and dispose of their earnings – Art. 3 of the Bulgarian Persons and Family Act

Emancipated minors, i.e. those who have entered into marriage (marriage is the only case that allows a minor to be emancipated), have full legal competence but may dispose of immovable property only with the consent of the district judge at the place of permanent residence of the person – Art. 6 of the Bulgarian Family Code

Both parents jointly

In Bulgarian law, the term “custody” refers to the rights and obligations that belong to the custodian. The same rights and obligations that belong to the parents are called “parental rights”.

Both parents jointly exercise their parental rights.

If the parents are divorced, they have to decide by common agreement on all matters concerning the education of the minor. If they do not succeed in reaching an agreement, the Court may decide which parent will exercise the parental rights; the other parent keeps his/her parental rights, but does not exercise them.

When a minor has no parents, a custodian is appointed to exercise what Bulgarian law calls “custody” and that covers the same rights and obligations as the parental rights

3.1 What is the scope of the right of custody?

Care of everything related to the child – both personal and material aspects of his/her life.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

The custody and guardianship authority, i.e. the mayor of the municipality or a person designated by the mayor. The judge occurs only in particular cases (for example in case of illness) but in “normal” cases, there is no need to wait for his/her decision to appoint a custodian – the mayor decides directly.

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

On the proposal of the Social Welfare Directorate – a state agency.

Any person who becomes aware of the need for custody or guardianship to be instated shall report to the custody and guardianship authority forthwith and, in cases of a child, also to the Social Welfare Directorate. The Directorate has to request custody of the child to the mayor.

Custody or guardianship shall be instated over children or minors whose parents are unknown, deceased, placed under full legal interdiction or deprived of parental rights. Indeed, where the parent’s behaviour threatens the personality, health, nurturing or property of the child, the district court shall take measures in the best interests of the child by restricting parental rights – depriving the parent of some of them or imposing conditions on their exercise – and may assign their exercise to another person.

It is important to notice that Bulgarian law considers that custody concerns children below the age of fourteen and guardianship concerns minors between fourteen and eighteen years old. There is a kind of gradation that makes custody stronger than guardianship (that is a softened form of custody) within the meaning of Bulgarian law. Both (custody and guardianship) cover nevertheless the same rights and obligations, which correspond themselves to the same rights and obligations belonging to the parents.

3.2.2 Is the competent authority free in its choice of a new custodian?

The competent authority shall appoint the custody board (a custodian, a deputy custodian and two advisors) as well as the guardian and the deputy guardian from among the kin and relatives of the child who will best take care of his or her best interests and have given their consent in writing.

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

The full rights of custody or guardianship belong to the custodian or the guardian.

The deputy custodian shall replace the custodian in cases when the latter is prevented from discharging his or her duties or in cases of conflict of interest between the interests of the custodian and the interests of the person placed under custody. The same is valid for the deputy guardian. In such cases, the custody and guardianship authority may appoint a special representative.

The mayor of the municipality or a person designated by the mayor serves as custody and guardianship authority. On demand and if the necessary requirements are fulfilled the custody and guardianship authority appoints a custody board (for children under the age of 14 years) or a guardian and a deputy guardian (for children between 14 and 18 years).

The custody board consists of a custodian, a deputy custodian and two advisors. The custody and representative rights belong to the custodian.

Advisors shall assist the custodian and deputy custodian in the discharge of their duties and notify the custody and guardianship authority of any disturbances in the upbringing and nurturing of the child under the age of fourteen or the protection of the rights and interests of the person placed under custody. They shall hear the report of the custodian and take part in its adoption by the custody and guardianship authority. Advisors may propose dismissal of the custodian and give opinion in the cases prescribed by law.

In the case of guardianship, the custody and representative rights belong to the guardian.

3.3 How and by whom will be determined the right of custody if the parents are arguing about it? Is there a difference between married and unmarried couples?

In the case of parental custody there is no difference between married and unmarried couples. All disputes are to be resolved by the court. The court has jurisdiction to restrict the parental rights as well as to deprive the parents of their parental rights.

3.4 May the right of custody be transferred to another person by means of a power of attorney?

No

The right of custody cannot be transferred but the custodian can authorise somebody else to represent him/her in his/her capacity as custodian for certain transactions. This is a transfer of certain representative rights and not a transfer of the right of custody. All answers below concerning representative rights are valid in this case.

Each parent may represent his or her child on his or her own and give consent with the legal actions of his or her minor child in its best interests – Art. 129.1 of the Bulgarian Family Code. The parents can represent their child jointly, but there is no obligation to do so.

A special representative shall be appointed by the court in cases of contradiction between the interests of the parent and the child – Art. 129.2 of the Bulgarian Family Code

Normally the right of representation is indivisible, which means that it can not belong to different persons in different transactions. However, there is one exception in case of conflict of interests, for example in case of a transfer of ownership from the minor, who is represented by his/her parents or custodian/guardian, to these parents or this custodian/guardian. In this case, the court will appoint a representative ad hoc. It is then possible to have several special representatives in case of several special transactions.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

Representation rights and custody/guardianship are closely related. Normally parental authority rights are not separated from representation rights. Thus, in such cases there has to be a custody or guardianship. See the answers above concerning this matter.

4.2 Are there any restrictions / extensions for the legal representative(s)?

Yes

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

Yes. Drafting of a will and entering into marriage, as well as the signing of a marriage contract.

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible that both parents have custody but only one has the right of representation in transactions with some property of a minor?

Both parents have custody and representation rights. In the case of divorce, the child will stay with one of the parents but the other does not lose his/her rights. Only in exceptional cases can the court limit the parental rights or deprive the parent of his/her rights. In these cases, one parent can have the rights of representation while the other does not.

4.2.3 Is it required that all legal representatives are concluding the transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

Each of the legal representatives may conclude a transaction on behalf of the children (below 14 years) and give consent for the legal actions of the minors (between 14 and 18 years). There is no requirement that the representatives act jointly.

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).

All legal transactions can be done by each parent alone since each parent may represent his or her child on his or her own.

For the custodian or guardian the question does not arise because there is just one guardian or custodian who cares for both the child (his/her person) and his/her goods.

4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).

There are no legal transactions that require the participation of both parents.

4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married? No / Yes (please specify).

No.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction is approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

Any action of disposal of immovable property, movable property with a formal transaction and deposits, as well as securities owned by the child shall be allowed with the permission of the district court, by a decision of the district court, at the current place of residence of the child provided the disposal does not contravene the child’s interests – Art.130.3 of the Bulgarian Family Act

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

See answer 4.2.4.1

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law will be denied?

As a general rule, approval has to be given before the transaction. Theoretically, it is possible for the approval to be given after the transaction (like a validation of the transaction) but this never happens in practice.

If the transaction is concluded without the approval of the competent authority, this transaction is not void but voidable, i.e. it can be invalidated by the court on behalf of the child. The right to claim invalidation is limited to three years. The limitation period starts on the date when the child reaches 18 years old. – Art. 27 and Art. 32 of the Bulgarian Obligations and Contract Act .

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)? Please describe the appropriate procedure for resolving the problem if applicable (e.g. nominating another representative, court’s approval).

In cases of contradiction between the interests of the parent and the child – i.e. in cases where they are parties in the same contract – a special representative has to be appointed by the court. This special representative will have representation rights only for the specific case.

Gifts, abandonment of rights, lending and securing of another person’s debts by a child (infant or minor) shall be null and void. By way of exception and with the consent of the court, the other person’s debts may be secured through pledge or mortgage in case of a need or obvious benefit to the child or emergency needs of the family – Art.130.4 of the Bulgarian Family Act

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons having the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

In general, there are restrictions where the interests of the minor and the custodian are opposed and where the minor does not have possibility to protect him/herself.

For example, in the field of Contract Law, the limitation period after the expiration of which the requirement to fulfil an obligation can be rejected is not applicable in the relation between children and parents as long as the latter exercise parental rights, as well as between persons under guardianship or custody and their guardians or custodians as long as the guardianship or custody lasts. The same is valid for the possibility to acquire ownership of movable or immovable property by means of factual possession for a certain period.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

Yes

The right of representation cannot be entirely transferred through power of attorney (POA), but power of attorney can be issued for certain legal actions.

4.4.1 Is the consent of all legal representatives to the transfer mandatory?

No. Each of the legal representatives can authorise a third person for representation in a specific transaction.

4.4.2 Are there any restrictions to this type of power of attorney (e.g. the right of representation may not be transferred in its entirety or it cannot be transferred in regard to certain transactions)?

The POA can be only for certain transactions. The right of representation may not be transferred in its entirety.

4.4.3 What are the formal requirements for this type of power of attorney?

As the POA is possible only for certain transactions, the form will depend on the form required for the transaction in question. For example, the form of a POA for a transaction of a real property will be written with notarised certification of the signatures and the content at the same time.

In the case where the custodians are the parents or one of them, they prove their rights trough the presentation of the birth certificate of the child. In the case where custodians are other people (i.e. in the case of death of the parents), they prove their rights through a document delivered by the municipal authority (which is the authority that nominates the custodians)

5.1 Does the law provide some kind of document, which gives evidence of the right of custody and/or representation?

See the answer above

5.2 Is there any other kind of document, proving the right of custody and/or representation?

In the case of parents it can be any kind of document that proves the parental relationship between the parents and the child – birth certificate, extract from the birth certificate, certificate from the municipality and so on.

For a child travelling abroad, a written consent from both parents is necessary. This means that, if the child is travelling with only one parent, he/she will need the consent of the other parent. If he/she is travelling with a third person (for example grandparents) or alone, he/she will need the consent of both his/her parents.

If the child has a custodian/guardian, he/she needs the consent of his/her custodian/guardian.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

The consent has to be given in written form with notarial authentication of the signatures of the parents or custodian of the signatures.

In case of dispute between the parents, they may seek mediation or file a petition with the district court at the current place of residence of the child, which shall resolve the dispute, having heard the parents and, if necessary, the child. The court judgment shall be subject to appeal in accordance with the general rules.

Part 1: Protective measures for adults with loss of capacity

The fact that the Bulgarian legal system accepts as a formal legal criterion the age of acquiring legal capacity by individuals indicates that for this criterion there must also be certain correctives, since sometimes individuals, despite reaching adulthood, lack the necessary mental maturity to have legal capacity. 

It is precisely for this reason that placement under judicial disability is envisaged (Chapter 28th of the Civil Procedure Code and Art. 5 of the Persons and Family Act). The norms governing this institute are imperative, as this measure is radical and only used as a last resort.

Part 2: Possibility to anticipate a future loss of capacity

According to the Bulgarian legislation there are no special measures in place to pre-empt a future loss of capacity. However, according to Art. 13 of the Inheritance Act, each person, who has reached adulthood, is not under full judicial disability and is capable of acting reasonably, can make provisions regarding the disposal of his property after his death in the form of a will.