Can one spouse file for divorce – getting the gist

Can one spouse file for divorce at the Registry Office

Dissolution of marriage through the registry office – the fastest way to officially end the relationship. Not wishing to arrange a divorce through the courts, considering this process tedious and long, the spouses together or unilaterally apply to the registry office, but the application may be rejected. This is due to the peculiarities of the dissolution of marriage in the registration authorities, stipulated by art. 19 OF THE FAMILY CODE OF THE RUSSIAN FEDERATION.

The law does not allow to formalize the rupture of relations unilaterally through the registry office, except in exceptional cases, which require more detailed consideration.

Can one person file for divorce

If the decision to end the marital union is made by only one party to the relationship, it is possible to file for divorce. The application for divorce is accepted in several state agencies:

  • Justice of the peace,
  • City or district court,
  • Registry Office.

The choice of place of treatment depends on the surrounding circumstances of the case.

In what cases, the features

A magistrate’s court considers claims for dissolution of marriage, if the husband or wife does not give divorce, and the age of their common children have not reached 18 years. In parallel, it is possible to solve the issue of division of jointly acquired assets, but their value should not exceed 50 thousand rubles.

District court decides cases on the dissolution of the marriage when the parties disagree, the presence of children and the dispute about the place of their residence and participation in the upbringing, if necessary division of property, the value of which exceeds 50 thousand rubles.

Justice of the peace and the district court consider cases of divorce, if the applicant is one of the spouses. The main criteria for distinguishing the place of application is the existence of a dispute about the children and the value of the common property.

Dissolution of marriage in the Registry Office may be one spouse only with the consent of the other half, the absence of birth (adopted) minor children or in exceptional cases (Article 19 of the Family Code).

If both spouses are in good health, are free and their location is known, one of them may apply to the Registry Office for a divorce. The second spouse, not being able to arrive at the appointed day, must submit a completed form of application for divorce, pre-tested by a notary.

Divorce in the Registry Office without the consent of the second spouse

Application by one spouse without consent of the other spouse and in the presence of common children is possible in three special cases stipulated by Article 19 of the Family Code. Learn more about each of them:

If the second spouse is missing

The party applying to the Registry Office must have a court decision proving that the second spouse is missing. To obtain it, it is necessary to notify law enforcement authorities that the location of the husband or wife is unknown, and searches do not give results, then apply to the court, attaching information about the results of search works.

In case of a favorable decision on the claim in defense of the interests of the absent party will appear guardianship and custody agencies and appoint a trustee of the property, authorized to act on controversial issues in court.

The spouse present at the Registry Office will get a divorce, but if the wanted spouse shows up, he or she can resolve issues about the children (where they live, security) and property division through agreements or in a separate court proceeding.

If the spouse is incapacitated

The second spouse, one of the relatives, a medical institution, or the guardianship and custody agencies may apply to the court for proof of the incapacity of the husband (wife) due to his mental disorder. If the forensic psychiatric examination will show significant deviations from the norm, the judge will issue a positive decision on the claim to declare a person legally incapable. Providing the court decision to the Registry Office will allow the second spouse to initiate divorce proceedings unilaterally.

The person in charge (guardian) is notified of the intention to dissolve the marriage. He can act on behalf of the ward by filing a lawsuit and defending his interests in court.

If the husband (wife) has been sentenced for more than 3 years for committing a crime

If the spouse is in prison and sentenced for a long term (3 years or more), the wife has the right to apply to the Registry Office without his consent. The presence of children does not limit the actions of the other half. The reluctance of the convicted spouse to divorce will not affect the course of the case.

Example. The wife has applied to the registry office to cancel the relations unilaterally and submitted the court decision according to which the husband was sentenced to 2 years and 6 months. They rejected the application on the grounds that according to Article 19 of the Family Code the divorce under the simplified procedure is executed if the husband has been sentenced for 3 years and more. The woman asked her husband to consent to the divorce process. The husband agreed, filled out a statement on form No. 9, certified it by the warden, who serves as a notary in this case, and gave it to the wife. By providing statements from her husband and herself, the woman was able to obtain a divorce.

If there are children

Couples with children may file for divorce separately without each other’s consent only if the other half is absent for a valid reason stipulated by the Family Code (incapacity, unknown absence or imprisonment from 3 years). Otherwise, the marriage is dissolved by the courts, where the issues of the place of residence of children, their subsequent financial support by the second spouse.

How to file for divorce of one spouse in the Registry Office

If the circumstances involve obtaining a divorce in the Registry Office by one spouse, you should act in accordance with the law.

Procedure

To process the dissolution of marriage, it is necessary to:

  1. Determine the place of application. In accordance with Article 32 of the law “On acts of civil status” you can submit an application in the Registry Office at the place of registration of one of the spouses or the state body, where the marriage was formalized earlier.
  2. Prepare a statement. The form can be taken in the registration body in advance.
  3. Pay the state duty.
  4. Collect the documents.
  5. Go to the registration authority.
  6. On the expiry of 1 month come to the registrar to receive a certificate of dissolution of marriage.

Some of the stages cause difficulties for the applicants. The first questions arise at the stage of selecting and filling out an application.

Application and documents

The form to fill out is chosen according to the reason for single application. If the spouse was unable to come to the registry office, the other spouse fills out form #8, and if the absence of one of the couple is due to special circumstances, the other spouse fills out form #9.

Form No. 8 is to be completed either by both spouses at the same time, or by each spouse separately. It states:

  • The name of the state body at the place of application;
  • Passport information: name, date of birth, citizenship, number and series, date and place of issue;
  • details of the marriage certificate;
  • Surname, which the applicant wishes to keep after the dissolution of the union.

Attention! Fill out the application in any convenient way: by hand; by typewriter, computer. The use of abbreviations is not allowed.

If the application is filed by one spouse, he/she must fill in only his/her half of the form “he/she” or “she”. The second half must be filled in by the absent spouse at his/her place of residence, certified by a notary or other authorized person and given to the spouse planning to apply to the Registry Office (Article 33 of Law № 147-FZ of 15.11.1997).

Submission of form No. 8 requires mutual consent for dissolution of marriage and absence of children up to 18 years.

If the husband or wife apply alone for the reason of reasonable absence (clause 2 of art. 19 of the SKR RF), the application under the form No. 9:

It is filled on the basis of the documents: identity card, certificate of dissolution of marriage, the decision of the court. In the application a separate line for the reason for the absence of the second spouse.

When submitting the application the documents must be presented:

  • passport;
  • marriage certificate;
  • proof of payment of state duty;
  • Birth certificate, if the surname is to be changed to the maiden name;
  • Court decision (if the procedure is carried out in the simplified order).

Terms

Term of the dissolution of marriage in the case of filing an application by one of the spouses is 1 month. This period is necessary for final reflection by the spouses on the decision to end the marriage relationship. The date of filing the petition is considered to be the starting point.

The registration of the divorce requires the presence of at least one of the spouses, otherwise the marriage will not be dissolved.

On the date appointed by the registry clerk, the applicant must arrive to collect the certificate of dissolution of marriage.

The cost of

The price of a divorce depends on the circumstances in which the applicant applied to the registry office.

If both agree to divorce, the husband and wife, wherever they are, must pay the state duty in the amount of 650 rubles . (Article 333.26 of the RF Tax Code).

If divorce is issued in a simplified form due to incapacity, absence or imprisonment of the second spouse under Article 19 of the Family Code, the applicant must pay 350 rubles .

If your last name has been changed there is an additional fee of 1600 rubles.

The reference information for payment should be obtained from the Registry Office.

Questions to the lawyer

  • My wife is pregnant but I have doubts about paternity. I want a divorce through the registry office. My wife says that I can not file for divorce without her consent. Is this true? Answer: Yes, indeed, a man is limited in the right to file for divorce if his spouse is expecting a child, is raising an infant up to 1 year, has suffered the loss of a child at the time of birth or in the following year. However, you may divorce your husband without your wife’s consent after one year from the date of delivery by filing a petition with the court. Dissolution of relations with a pregnant wife through the registry office is possible only with her consent, the manifestation of initiative on her part. If the child is born within 300 days from the date of dissolution of the marriage, the former husband formally will be the father of the child and assume the obligations to pay alimony, maintenance of a spouse during the maternity period. It is possible to challenge paternity through court, providing the results of a DNA test as evidence.

Despite the apparent simplicity of divorce through the registry office, the process has a number of nuances. For example, if the spouse has not made a statement for a long time, he or she cannot be found, it is possible to obtain a divorce with the missing person under the simplified system, but the procedure requires careful preparation. Often an obstacle to the registration of divorce is the residence of the second half in another city or country. The lawyers of the site ros-nasledstvo.ru will prompt the right course of action for the dissolution of marriage most quickly and painlessly.

FREE CONSULTATIONS are working for you! If you want to solve your particular problem, then :

Does it make a difference whether the husband or wife files for divorce

Divorce can be initiated by either husband or wife, and the law does not provide any special procedure for each spouse. Existing family law and established practice of its application establishes only certain nuances of consideration of cases of divorce on the initiative of a husband or wife, sometimes setting restrictions or additional obligations for the spouses. Is there a difference, who files for divorce – husband or wife, we will examine in this publication.

Divorce at the Registry Office: is there a difference, who files the application?

In the dissolution of marriage through the registry office there is absolutely no difference, who is the initiator of the divorce – the application to this body must be filed by both. Registry officials do not care who actually came forward first to end the marriage.

Also, do not forget about the grounds for divorce through the registry office, which are mandatory:

  • The mutual consent of the spouses;
  • Willingness to submit a joint statement and appear in the registry office;
  • the absence of minor children from the marriage.

There are also exceptional circumstances, which can be used by both husband and wife, if their partner in the marital union:

  • Missing, which is established by a court decision;
  • Deprived of legal capacity by a court of law;
  • Has been sentenced by a court to a term of imprisonment of 3 years or more.

Under the exceptional circumstances listed, both husband and wife may file an application without regard to the appearance or position of the other spouse and divorce in the registry office without the husband or wife and even with the children. Upon filing, the marriage will be dissolved within one month.

At the same time:

  • The position of the missing spouse, for obvious reasons, no one will find out;
  • the incapacitated person is not informed about the results of the divorce;
  • The spouse who is serving a sentence is notified by the Registry Office, but his/her position on the issue is of no importance.

Divorce in court: is there a difference whether the husband or wife sues?

In the bulk of cases, there is no determinative value in a divorce at the initiative of both the wife and the husband.

But still, under certain circumstances, the procedure for consideration of the case at the initiative of the husband or wife will have its own characteristics. You should also not forget about the domestic nuances involved in ending the relationship and beginning the legal procedure of divorce.

Particular attention should be paid to problems related to divorce:

    ; ;
  • Determining the order of communication with the children; .

If the wife is filing for divorce

Before filing for divorce, it is important to make sure that no new cases involving alimony or property division will have to be initiated afterwards.

However, lawyers advise to consult beforehand with experts who will advise – whether it is necessary to burden the divorce lawsuit with additional problems or not. Whether it will be convenient to consider all issues at once or to postpone – depends on the severity of the conflict, the subject matter of the dispute and many other factors.

What questions should a wife decide before filing a lawsuit?

Who will the child be with?

Since children often stay with their mother in life, the wife should inform her husband about this.

Remember, the jurisdiction of the dispute directly depends on the existence of an agreement about the children:

  • If the spouses have resolved the problem, they will be divorced by the world court;
  • If a dispute about children – you need to apply to the district court.

When filing a lawsuit, you need to confirm the fact of residence of the child together with his mother.

Alimony

Having children from a common marriage automatically entails responsibilities for their education and maintenance for both parents. No one, including the children’s father, can just walk away from the family.

Filing a lawsuit for divorce, the wife must understand – whether she needs to recover alimony now, or it is better to postpone the issue until later.

No. n/a Situation Commentary
1 With the husband normal relations He does not shirk his duties and helps with money – alimony in a lawsuit is better not to lay down.
2 Negative relations. In the lawsuit, it is better to immediately put the issue of recovery of alimony, including consideration of the prospects for their recovery for the past period.

You can find a list of documents for the recovery of alimony here.

Property

The presence of joint property between spouses invariably leads to disputes about its division.

Practice shows that most of the property is often registered in the name of the husband. By the way, previously owned by the spouses expensive property (real estate, business) may have been significantly upgraded and improved, which makes it the subject of the lawsuit.

Lawyers do not recommend combining divorce cases with a property division claim. Nothing prevents you from dividing it later (unless, of course, the husband takes steps to sell or destroy the property), and the divorce itself in this case will go much faster.

If the divorce is filed by the husband

For a man on the initiative of divorce are relevant almost all the same points as for the wife, but with an error in established practice.

For example, men are more likely to be the spouse who leaves the child to the mother, and for this reason, men are more likely to pay child support than mothers.

There is another important difference between the husband’s divorce initiative and the wife’s rights – divorce when the wife is pregnant or has a young child under 1 year old.

If the wife is pregnant

Article 17 of the Family Code prohibits a husband from initiating divorce proceedings if his wife is pregnant.

At the same time, such a restriction applies at the wife’s initiative and not just because she is pregnant.

Example. Ivanov, knowing that his wife is pregnant, filed for divorce, because his wife also insisted on ending the relationship. In court, they had a disagreement. The wife began to ask to postpone the divorce and try to solve their problems, but Ivanov insisted on the dissolution of the marriage. Then his wife presented the court a certificate of pregnancy and the court refused to dissolve the marriage.

If the pregnancy became known in the course of the trial, the disclosure of this fact by his wife to the court and the message of disagreement with the divorce is an absolute basis for refusing her husband in the lawsuit.

If there are children under 1 year.

By analogy with the pregnancy of the wife, Article 17 of the Family Code also prohibits the husband to ask for a divorce without the consent of his wife within one year from the birth of the child.

The review of case law of the Supreme Court of the Russian Federation specifically notes that this period applies not only when the child is born safely. But also when the child died in childbirth or before the age of one year.

The only way to divorce your wife without her consent and with a child under 1 year old is to challenge paternity, but it will take a lot of time and your wife’s consent will not be needed in the future.

Paternity and child support

Men often begin to insist on disputing their paternity when alimony claims are filed against them.

Since wives often counterclaim for alimony in a divorce initiated by their husbands, disputing paternity will preclude a counterclaim from being filed – the court will explain that such a claim must be considered separately.

Property division

As with the wife’s initiative, lawyers do not recommend combining the lawsuit for divorce and division of property.

But if part of the property is in the actual possession of the wife and this property can be sold, hidden or destroyed – it is better to decide this issue at once, at the same time when filing a lawsuit, imposing seizure and other security measures.

If there is a marriage contract

If there is a marriage contract between the spouses, any of them, in the dissolution of the bargain, have the right to demand through a court to change it or to dissolve it, if there are conditions that violate their rights.

In this case lawyers, on the contrary, advise to combine these claims in one lawsuit. After all, many of the terms of the marriage contract after the divorce is not valid, and some – just come into force. And delay may not end well.

So what’s the difference in filing a husband or wife lawsuit?

The only legal difference is Article 17 of the Family Code, which prohibits the husband from demanding a divorce while pregnant or with a joint child under the age of 1 year. In all other cases, the differences are only formal and are caused by the peculiarities of the separation of most families.

Our experts can advise you in more detail about the possible nuances of divorce from both the husband and the wife. Proper advice will simplify the divorce and eliminate the most common mistakes.

Both sides in a divorce must first do everything possible to resolve as many disagreements as possible in peace, whether it is the determination of the place of residence of children or division of property. The more issues you can reach consensus on, the easier and cheaper your divorce will be!

Consultation of an experienced lawyer is required in 8 cases out of 10 in the dissolution of marriage. The reason for this is the individuality of each family dispute and the many related problems that divorcing spouses have to solve.

Our lawyers are ready to advise you on any issues related to family disputes and divorce, and for those who apply through the website or hotline, this consultation will be completely free!

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

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

Leave a Comment