Can I get a divorce without my wife’s consent if I have a child?

How to get a quick divorce without the wife’s consent?

Family relationships involve joint decision-making on all significant and important issues. However, when it comes to the dissolution of the marriage, to obtain the consent of the second spouse, even in the most typical and not complicated by children or division of property becomes extremely difficult, and sometimes even impossible.

In what cases is it possible to divorce on the initiative of the husband, and what to do if the wife refuses to draw up all the necessary documents to end the family relationship?

Is it possible to divorce without the consent of the wife?

At the stage of a possible divorce, the key issue is not only the division of common property or determination of the place of residence of children, but also the procedure for dissolving marital relations. Despite the freedom to make such a decision, the official procedure requires filling out a lot of documents and joint appeal to various authorities. Is it possible to perform all these formalities, not only without the participation of the wife, but also without her consent?

It is possible. The Family Code of the Russian Federation allows for such a possibility, but, at the same time, imposes a number of restrictions on the possibility and procedure of divorce.

The lack of a woman’s consent will not allow you to sign a joint statement at the registry office and get by with just one visit to this institution: in the case of categorical objections of the wife to a divorce, the family union will have to be dissolved in court.

In court, the husband is able to divorce without the consent and permission of the woman in any case, except in the following circumstances:

• pregnancy of the spouse;
• a period of time before a common child reaches the age of 1 year.

In all other situations, unilateral termination of the marriage is possible, even if it can cause a lot of difficulties.

Divorce during pregnancy

Restrictions on the termination of a marriage during a woman’s pregnancy are regulated by Article 17 of the Family Code. This procedure can take place only with the express consent of the wife, which will be executed in the form of a jointly signed statement to the registry office or in the form of a written or oral statement of recognition of the claim in court.

Pay attention! If a pregnant woman does not consent to the termination of the marital union or simply evades making such a decision, a divorce will not be possible even in court.

Possible options for men wishing to divorce a pregnant wife or a wife who has a child under the age of 1 year together with the man, you can recommend the following actions:

• try to achieve a settlement of the disputed situation and persuade the woman to come to the registry office to sign the necessary documents;
• Wait not only for the birth of the child, but also to reach the age of 1 year, so as not to depend on the decision of the spouse.

It is impossible to circumvent the restrictions set by Article 17 of the Family Code without reaching a compromise with the woman.

If the husband is sure that he is not the father of the child that the woman is carrying or has already given birth to, and also in cases where the wife does not deny this fact, it will not matter until the moment of officially challenging paternity through court.

Divorce before the child is 1 year old

A similar situation arises if the spouses have a common child and he has not yet reached one year of age. Article 17 of the Family Code contains an explicit prohibition on divorce in such a situation without the permission of the woman.

The fact of separation and the actual absence of a joint relationship will not be legally relevant to the possibility of divorce. If a woman refuses to go to the registry office and draw up the necessary papers, the only course of action is to wait until the child is one year old.

There is no point in going to court with such an issue, because a statement (oral or written) by the spouse refusing the application for divorce will be grounds for the unconditional dismissal of the suit.

The procedure for getting a divorce without the wife’s consent

If there are no circumstances preventing a divorce, but it is impossible to obtain the consent of the woman, there are the following ways to obtain a certificate of divorce

• apply to the court with a claim for termination of family relations;
• In the presence of special circumstances specified in art. 19 of the Family Code, to submit documents unilaterally to the registry office.

Each of these options involves compliance with certain formalities.

Divorce in Registry Office

As a general rule, without the consent of the wife, it is simply impossible to submit an application for termination of family relations to the registry office. However, there are three circumstances that allow you to bypass this restriction:

• The presence of the woman in places of imprisonment under a court sentence with a term of imprisonment exceeding three years;
• The recognition of the wife as legally incompetent;
• recognition of the wife as missing.

Each of these circumstances must be properly confirmed by a court decision (sentence), which came into force and certified by the seal of the court. This document must be provided to the employee of the Registry Office when completing the application for divorce.

In Registry Office at the place of residence of the divorcing spouse or at the place of registration of the marriage is submitted:

• Application of the established form (form No. 9);
• Certificate of marriage;
• Passport;
• A receipt for payment of a fee in the amount of 350 rubles;
• A court decision or verdict.

After accepting the application, verification of documents (as well as notifying the imprisoned spouse) will take one month, after which the man can receive a unilateral certificate of termination of marital relations.

Read more about the procedure for divorcing an incarcerated spouse here.

Divorce in court

Litigation is the only option for dissolving marital relations if there is at least one minor child in the family or when the wife is adamantly opposed to the divorce. In this case, the wife’s lack of consent will not be of particular legal significance, and her possible future consent to the divorce will only expedite the proceedings.

In a situation where the woman refuses to divorce even in the absence of a common child, only filing a lawsuit in court will help the husband obtain a divorce certificate. The timing of the court procedure will directly depend on the woman’s position.

How to file for divorce in court

Filing for divorce through the court is carried out according to the general rules of court procedure. In this case, the consent or objection of the defendant on the merits of the stated requirements will be established in the course of the trial.

To submit a claim a man will need the following set of documents:

• a statement of claim in two copies;
• Marriage certificate (if the original is in the wife, it will be enough to attach a copy or certificate from the Registry Office);
• Certificates of birth of common children, if they have spouses;
• a receipt of payment of the state duty in the amount of 600 rubles.

The wife’s written or verbal consent is not required to send documents to court.

For more information on the judicial divorce procedure, see the article “Dissolution of Marriage Through the Courts.

Where to file a lawsuit?

Documents for divorce are filed in the magistrate’s court at the defendant’s place of residence. To do this, you must go to a personal reception to the staff of the judicial area, or send a package of documents by mail.

the Law allows the possibility to file a lawsuit in court at the place of residence of the plaintiff, but this requires proof that a medical condition prevents recourse to the court at the place of residence of the wife, or to provide evidence of residence with the plaintiff’s minor child.

The fact of receipt of the documents in court will be confirmed by a stamp of the incoming correspondence, or a receipt of the post office.

Contents of the claim

When filling out the statement of claim it is necessary to comply with the general requirements for such documents. In the text of the claim is required to include the following provisions:

• Personal data of the husband and wife, including the address of actual residence;
• Information about marriage;
• Data on the absence or presence of children;
• the grounds for recourse to court, the reasons for the divorce and the motivation for the impossibility of further life and reconciliation;
• a request for termination of family relations in court.

Statement to be signed personally by a man, and in the text of the document is recommended to make a reference to the lack of consent of the woman to divorce.

Reference to the lack of consent in the claim will be mandatory when filing a claim for divorce in the magistrate’s court only on the basis of the wife’s disagreement with the termination of the marriage.

If you have any questions, you can always ask for a free online consultation with our legal experts.

Documents

To the claim for divorce without the consent of the wife, you need to attach the following documents:

1. A copy of the claim for the wife
2. A copy of the applicant’s passport;
3. Documents about the marriage: copy of the certificate of conclusion or certificate of civil registry office;
4. Documents about children (if any);
5. Additional documents that may confirm the circumstances relevant to the case: certificate of residence of any of the spouses, information confirming the reasons for the divorce (for example, prosecution of administrative responsibility), etc.
6. Receipt of payment of the fee.

This list of documents is formed on the basis of the analysis of article 132 of the Civil Procedural Code of the Russian Federation and the established practice. In certain cases it may be demanded to attach other documents, proceeding from the peculiarities of the dispute.

A sample of a claim

The sample of the claim presented reflects the simple typical situation of divorce without the consent of the wife in the absence of minor children from a joint marriage.

In other cases, when the dispute is complicated by joint children or other circumstances, it is strongly recommended to seek the assistance of an experienced lawyer for legal advice and assistance in drafting the document.

Litigation

Litigation requires proper notice to the defendant of the time and place of the hearing. For this purpose, a court summons is sent to the address of the woman specified in the text of the claim. The fact of its receipt by the defendant indicates proper notification.

In addition, the wife can be notified by a telegram by court staff.

At the stage of the trial, the defendant may raise objections to the dissolution of the marriage and request the court time to reconcile the parties. The judge has the right (but not the obligation!) to do so, and the total period of conciliation cannot exceed three months.

Failure to appear without good cause is grounds for hearing the case on the merits without the participation of the wife. After the first failure to appear, the court will notify the wife a second time and only after she has ignored the court session a second time will the court have the right to hear the case without the defendant’s participation.

This fact will be reflected not only in the judgment, but also in the minutes of the meeting. If there are valid excuses for not appearing, the wife will be able to ask for a postponement.

Valid reasons for failure to appear, which entitle the right to postpone the court hearing, may be recognized as:

• serious illness or being hospitalized in a medical institution;
• a long business trip;
• Force majeure circumstances (natural disaster, etc.).

How long does the divorce in court

The overall procedure for a divorce in court depends directly on the exercise of the right to allow time for reconciliation between the parties. If the court does not apply this procedure, the case will be heard within one month of the initiation of the proceedings and another 1 month will be needed for the judgment to enter into effect.

Taking into account the three-month period for reconciliation of husband and wife, the duration of the process may drag on up to 4-5 months along with the time the decision enters into force. Thus, there will be no quick divorce!

Divorce in absentia without the wife’s consent

If the wife is notified twice about the time and place of the court, but ignores the summons and does not petition to postpone the case, the court has the right to consider the case in absentia.

Peculiarities of decision in absentia:

• The wife may file an application to set aside the decision in absentia within 7 days of finding out, arguing that her absence would have affected the trial;
• The period of appeal begins to run from the time the judgment is served or returned to the court without service.

Divorce without the wife’s consent when her address is unknown

In addition to failing to appear without good cause, it is possible for the plaintiff and the court to fail to establish the woman’s residence. For example, when she has changed her address without notifying her husband or the court.

In this case, proper notice of the place and time of the hearing will simply not be possible.

In such circumstances, the court has the right to appoint a representative (duty attorney) for the defendant at federal expense and to hear the case in her absence. In this case, the rules of in absentia proceedings do not apply.

IMPORTANT: This rule does not apply if the wife has been declared missing.

Difficulties in Divorce

As with any judicial procedure, the dissolution of marriage through the court without the consent of the wife has a number of difficulties, which will have to face an unprepared person legally.

• Drafting a statement of claim;
• Collection of necessary documents;
• Conduct of the judicial process;
• The solution of related issues: the determination of the place of residence of children, division of property, etc;
• The possible change (including multiple) position of the wife in court.

In all of these cases, the help of a qualified lawyer will help reduce the risk of problematic situations and contribute to the fastest possible completion of the divorce procedure.

• Due to constant changes in legislation, by-laws and court practice, sometimes we do not have time to update the information on the site
• Your legal problem in 90% of cases is individual, so independent protection of rights and basic options for resolving the situation may often not fit and will only lead to complication of the process!

Therefore, contact our lawyer for FREE consultation right now and get rid of problems in the future!

Divorce without the consent of one of the spouses

If you ask someone who complains about an unhappy married life, “Why don’t you get a divorce?” you may hear the answer, “He/she won’t give me a divorce.” Is it really so, and the disagreement of one of the spouses to divorce can cause the other to be forced to stay in a dull marriage for the rest of his or her life?

Of course not. The modern legal system does not permit such an obvious infringement of individual rights.

Although divorce without the mutual consent of the spouses is indeed a difficult, lengthy and psychologically difficult procedure. In this article we will look at its features.

Can they divorce without the consent of one spouse: the nuances

It is possible to divorce without the consent of the second spouse, although it is difficult. With one exception. According to Article 17 of the Family Code of the Russian Federation, it is impossible to divorce without the consent of the wife if:

• The woman is pregnant
• Has given birth to a child less than a year ago

At the same time, a pregnant or newly born woman herself can file for divorce and divorce without her husband’s consent.

This provision is designed to protect mothers and children. A woman who is expecting a child or is busy caring for an infant is one of the most vulnerable social categories. The law provides certain guarantees of protection of her rights.

WARNING The situation does not change, even if in fact the child is not the second spouse’s relative, was born stillborn, died in childbirth, or died during the first year after birth. If a pregnant woman, the mother of an infant, or a woman who has lost a child under one year does not consent to a divorce, it is impossible.

It is fair to say that this is the only case where a spouse “not giving divorce” is an insurmountable obstacle to the dissolution of the marriage.

In addition, we are talking about a limited time frame. Once a year has passed since the birth of the child, it will be possible to file for divorce without the consent of the spouse.

If there are children

Divorce with children older than one year is possible, both by mutual consent, and with the disagreement of one of the spouses.

Another thing is that the “dissenting” spouse has the opportunity to complicate it as much as possible.

For example, constantly putting forward new claims: about the amount of alimony, the division of property, the order of communication with the divorced parent with the children, about their place of residence.

All in all, this can lead to the fact that the spouse, seeking to dissolve the marriage, “gives up” and stops trying to get a divorce, putting up with what is, and hoping that over time, everything will somehow resolve itself.

If there are no children

Divorcing a childless couple does not require going to court. You can get a divorce in the registry office 30 days after filing the petition. But only if both spouses want to.

If one is strongly opposed to divorce, it will require the intervention of the judicial authorities. But still, if there are no children together, divorce, even without the consent of the other spouse, will be faster and easier than with them.

Where to go

Marriage is dissolved in two ways:

• Administrative (through the registry office)
• Judicial (through a justice of the peace, or ordinary, city or district court)

Administrative is available only to childless couples (or those whose children are already adults), and with mutual consent. In all other cases, recourse to the court is inevitable, with the exception of three cases directly regulated by Article 19 (paragraph 2) of the SK.RF.

We are talking about a situation where the consent of the other spouse to divorce is impossible to obtain, or his consent and non-consent are irrelevant. Namely:

• The spouse is missing. This fact must be confirmed by a court. It decides to declare a citizen missing or (after a certain period of time) to declare him/her dead.
• The spouse is legally incapable. That is, in court recognized as incapable of understanding the meaning of his actions, to make decisions and be responsible for them.
• The spouse has committed a criminal offense and received as a punishment a long term of imprisonment (from 3 years).

In the presence of these circumstances should submit to the registry office a unilateral application for dissolution of marriage, while providing a document proving their existence, This can be a court verdict or a court decision on the disappearance, death, recognition of incapacity.

A Justice of the peace decides on the divorce, if the spouses do not have disagreements about the division of property, the material support of the children, the order of communication with them by the divorced parent.

If one of the spouses does not agree to divorce – there is definitely a disagreement. Therefore, you should apply exclusively to the city or district court.

How to divorce, if one spouse does not agree to divorce, through the court

The process of divorce when one spouse does not agree is a complicated and time-consuming affair. To conduct it with the least losses for themselves, it is important to carefully plan the actions and to commit and adhere to the plan.

Order of action

• First try to still achieve the consent of the spouse for a divorce. If you succeed, the process will go easier and faster. With mutual consent divorce takes about a month, for a decision may be enough for one court session. Especially if there is an agreement governing the division of property and child support. If one of the spouses strongly disagrees, the court after the first hearing gives the husband and wife three months to reconcile. And if at the end of that period the plaintiff’s intentions do not change, the marriage will be dissolved, despite the protests of the other party.
• Whether or not the spouse’s consent is obtained, the next step is to file a statement of claim. A competently and comprehensively worded petition greatly increases the chances of a quick resolution. An illiterate and poorly drafted one, on the other hand, can further delay the case.
• In addition to the application, documents are submitted to the court to prove the validity of the plaintiff’s position. The more convincing evidence that the marriage should be dissolved you gather, the more the chances of a desirable outcome of the case for you. Then you should pay the state duty, go to the court hearing in person and get a decree of divorce
• The court decision serves as the basis for the dissolution of the marriage in the bodies of the registry office, its state registration. It is necessary to apply there.
• After the expiry of the legal term after this, you receive a certificate of divorce in the Registry Office and you will be stamped in your passport.

Statement of claim

Let’s talk about it in more detail, because, as mentioned above, properly drafted application to the court, this is if not half, then at least a significant part of success.

Strict form or application form the law does not provide. However, there are a number of requirements, provided for in article 131 of the Civil Procedural Code of the RF. The application must be submitted in writing. The information must be set out in a business official style, clearly, consistently and concisely. Without spelling mistakes, expressive and profanity, blots and corrections.

The application must contain a formal, descriptive and substantive part. Each of them must contain the following information:

The formal part

• The full name of the judicial body to which you are appealing. In some cases the name of the judge
• The names of the spouses and where they each live

Descriptive part

• When, by whom and where the marriage was registered
• Information about joint children (child)
• Information about property acquired during the marriage
• Details of agreements reached regarding division of property and child support after divorce (if any)
• The reasons for your divorce. If you are confident that you will not change your mind, it is advisable to specify “reconciliation is not possible. This may have a positive effect on the timing of the decision, since it will exclude the application of Article 22 (p. 2) of the UK RF, which allows the court to postpone a decision for 1-3 months to reconcile the parties.

The operative part

• The request to dissolve the marriage.
• Additional requirements (to resolve the housing dispute, divide property, calculate alimony, etc.)

Next, write a list of the attached documents, put the date of submission of the application and the personal signature of the plaintiff with a deciphering.

The statement, drawn up with violations of the requirements may be left without movement, or returned to the plaintiff for revision.

Example

Citizen A has written the following statement to the court. She fully complied with the requirements of the formal part of the document, but then went straight to the operative part, demanding the dissolution of the marriage and the residence of the child with her. She then stated the date of the marriage and the date of the child’s birth. Then demanded that the ex-husband pay alimony after the divorce. Then she put her signature on it.

The court dismissed the lawsuit and returned it for revision on the grounds that:

• The reason for the divorce was not stated.
• The document violated the sequence of presentation required by Article No. 131 of the Code of Civil Procedure of the Russian Federation.
• The application was filed without specifying the date

It follows that, despite the fact that there is not strictly mandatory form of a statement of claim, it is important to comply with the legally established order and completeness of the information. You can find on the Internet examples of competent samples of statements of claim and adapt them for yourself.

Or seek a free consultation with a lawyer, who will advise you how to properly make a statement.

State fees

If you file for divorce without the consent of the other party, you must pay the fee. The fee is 600 rubles. Details for payment should be clarified in the office of the court, where the claim is filed.

You must pay the fee prior to filing a lawsuit – a receipt of payment is attached to the package of lawsuit documents. The paid fee is valid for one year.

Procedure

According to the law the claim is filed at the place of registration of the defendant. But it will take and place of residence of the plaintiff, if there are valid reasons. These include:

• Circumstances that make it difficult for the plaintiff to appeal to another territorial court (health status, living together with minor children)
• Not knowing the place of residence of the defendant

After the suit is accepted, the first court session is scheduled in a month. Both parties are notified about the place and time of the meeting, in addition to the defendant is sent for review a package of copies of the lawsuit documents

Effectively boycott the divorce process by a failure to appear at meetings of the “dissenting” spouse will not be able, though he will be able to delay. After three unexcused absences, the decision on the divorce will be made without him.

However, if the reason was valid, just the defendant failed to notify the court about it in time, he has the right (under Article #236-237 of the Civil Procedure Code) to file a petition requesting that the decision taken in his absence be reversed.

If both spouses appear in court, the judge hears both parties, considers the documents they submitted, and makes a decision.

There are three options for making a court decision:

• The judge dissolves the marriage.
• The judge gives a certain amount of time for reconciliation, according to Article No. 22(2) of the Family Code
• The judge denies the claim, the marriage is not dissolved

The court decision goes into effect 30 days after it is rendered. Then the court sends an extract to the registry office (within three days). The spouses may then appear at the registry office and execute the divorce certificate after the appropriate entry is made in the registry books

Timing of the divorce

Formally, the maximum period of time for a judicial dissolution of marriage should not exceed two months after filing a lawsuit. In fact, the process may take considerably longer. Reasons for delaying the case can be:

• Technical reasons for postponing meetings, delay in forwarding documents
• The request of the defendant to allow time for reconciliation (from 1 to 3 months)
• Defendant’s failure to appear in court without a valid excuse (the first two sessions may be postponed and only the third session will be decided in his absence)
• The presence of additional claims (in complex disputed cases, the parties may require inviting witnesses, which again means a postponement of the session).
• Filing of an appeal within 30 days after the decision of the judge

What documents are needed for divorce without the consent of the spouse

A basic package of “divorce” documents is specified in article №132 of the Civil Procedural Code. In addition to this may require additional documents, depending on individual circumstances. For example, documents of title to the property to be divided.

CAUTION! Sometimes it is advisable to begin collecting and preparing documents before the “dissenting” spouse will be brought to the fact of filing a lawsuit. In an attempt to avoid this, or to make an unwanted divorce more difficult for him, he may destroy or hide the documents. He may also prevent them from being collected. If this still happened, the fact of concealment or destruction of documents of title should be stated in the statement of claim, asking the court to request the necessary documents, or copies of them.

So, let’s consider a complete set of “divorce” documents.

Without children

• The lawsuit itself (write three original copies: one remains with the plaintiff after registration and acceptance for consideration, the second court takes to work, the third will be sent to the second spouse for review)
• The document confirming payment of state duty
• Copies of passports of both spouses
• Copies of marriage certificates
• Copies of the marriage contract (if any)
• Copies of the agreement on division of property (if there was one)
• Copies of documents of title to property subject to division (if such a requirement is made)

Children

All of the above, plus:

• Copies of birth or adoption certificates for joint children
• Copies of family composition certificates (issued by the housing authority)
• Copy of certificate from child welfare authorities about living conditions of children
• Copies of earnings certificates of the parents (if among the claims is a claim for alimony)
• Copies of the parental agreement for maintenance of children and communication with them after divorce (if any)
• Copies or originals of each parent’s employment references

Case law

Marriages that one spouse seeks to dissolve are dissolved regardless of whether the other spouse agrees or not. According to the fundamentals of Russian family law, no one can be forced into a marriage against their will.

With the exception of the case described earlier, when a woman is pregnant or has recently given birth (up to a year). But this is a temporary restriction.

Court practice shows that the failure of a “dissenting” spouse to appear in court leads to nothing good, in this way the defendant will never achieve his goal of preserving the marriage.

More productive will be to ask the court to grant a conciliatory deferment (1-3 months), and use this time to actually reconcile with the spouse, to persuade him to continue trying to save the family.

If this is impossible, and the spouse has made an irrevocable decision to divorce, it is worth at least trying to resolve all disputed issues peacefully. Agree on a consensual division of property, peaceful settlement of all “children’s” issues.

You will get a divorce anyway – whether you want to or not. So it makes sense to take all necessary steps to maintain a “human” relationship at least for the sake of the children, for whom you are still a father and a mother, regardless of whether you live together or apart.