How to file for divorce if the husband is against it?

Divorce without the consent of one spouse

If you ask someone who complains about an unhappy family 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)
• Court-based (through a Justice of the Peace or Normal, City or District Court)

The administrative one is available only to childless couples (or to those who have children who are already adults), and by mutual consent. In all other cases, recourse to a court is inevitable, except in three cases directly regulated by Article 19 (clause 2) of the Family Code.

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

• The spouse is missing. This fact must be confirmed by the court. He decides to declare a citizen missing or (after a certain period of time) to declare him 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, at the same time 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 consent of the spouse 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, 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, correctly drafted application to the court, this is if not half, at least, a significant part of success.

The law does not provide for a strict form or application form. However, there are a number of requirements stipulated by Article 131 of the Code of Civil Procedure of the Russian Federation. 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 part should contain the following information:

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 the place of residence of each

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)
• Unknown place of residence of the defendant

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

Effectively boycott the divorce process by non-appearance at meetings of the “dissenting” spouse will not be able, although it 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 was not able to notify the court about it in time, he has the right (under Article 236-237 of the Code of Civil Procedure) to file a petition requesting the annulment of the decision taken in his absence.

If both spouses appear in court, the judge hears both parties, considers the documents submitted by them, and renders 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 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 of joint children
• Copies of the certificate of family composition (issued by the housing authority)
• Copy of the certificate from the custody agency about living conditions of the children
• Copies of earnings certificates of the parents (if the claim includes 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 to appear “dissenting” spouse to court proceedings leads to nothing good, this way the defendant will never achieve their goal – to save 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 an amicable 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.

Divorce without the consent of one of the spouses (husband or wife)

Breakup of a Marriage

When it comes to divorce in a family relationship, it is rare that the initiative comes from both spouses. Typically, the initiator of the divorce is one partner, and the other accepts the inevitability and agrees, or categorically does not consent to the dissolution of the marriage. Is it possible to end the marital relationship if the partner resists the divorce by all means?

Divorce without the consent of the other spouse

Termination of marital relations without mutual consent is only possible through the courts. But there are exceptions in which a unilateral divorce with a non-consenting partner takes place in the registry office:

• A spouse who does not consent to the divorce is officially considered incompetent;
• The spouse who opposes the dissolution of the marriage is imprisoned for a long period of time (more than three years).

When unilaterally dissolving the marriage, its initiator applies to an employee of the Registry Office with a statement of divorce, filled on form number 9, where he indicates the personal data of both partners, as well as the reason for the dissolution of marriage. The petition must be accompanied by a copy of the court decision that the spouse is incompetent or a court verdict that the spouse is imprisoned, as well as the petitioner’s passport, a receipt for the state duty and a marriage certificate. After 30 days, the applicant must go to the Registry Office to obtain a divorce certificate.

In all other cases, a divorce without the consent of one of the spouses will take place in court. The court is obliged to divorce the couple if in the time allocated by the judge to reconcile the parties, the partner has not changed his/her mind and continues to insist on ending the marital relationship.

The only exception is the refusal to divorce a woman who has recently given birth or is pregnant.

The initiator of the dissolution of marriage must competently prepare a claim for divorce. It must contain the following information: full name of each spouse, the address of their residence, a description of the reason for the divorce, the data of the marriage certificate, the names that the spouses will wear after the dissolution of the marriage, a list of property claims and a wish about the future place of residence of children. In the header of the application for divorce is written full name of the Department of the court, where the statement is filed.

You must attach the following documents to the complaint:

1. A copy of the statement of claim;
2. Certificate of marriage, a copy and the original;
3. A receipt about paid state duty;
4. Extract from the house book;
5. Copy of applicant’s passport;
6. Children’s birth certificates;
7. Information about joint property;
8. Other documents that may affect the court decision.

All of the collected papers must be filed at the defendant’s place of residence. But, if the initiator of the divorce has health problems, or a young child lives with him, documents can be filed with the court at the applicant’s address.

How do I get a divorce without my husband’s consent?

Divorce without the consent of the husband unilaterally occurs according to a standard scheme: the wife makes a lawsuit for divorce and prepares the necessary package of documents, which then goes to court. In court, the correctness of the statement of claim is checked, as well as the availability of documents attached to it. Proceedings for dissolution of marriage, the date of the hearing spouses will be notified by summons. At the court hearing, the arguments of both partners are heard and the details of the case are reviewed.

If the husband expresses categorical opposition to divorce at the hearing, the court at its discretion sets a period of time for reconciliation of the parties, from 1 to 3 months. After this period, the judge decides on the divorce, unless the spouses change their minds. In order to finalize the divorce, the couple will need to appear with the court order at the Registry Office and collect the divorce certificates.

In order to expedite the divorce without the consent of her husband, the wife may indicate in the statement of claim the reasons why the court appointed a period for reconciliation of the parties is not relevant: bad habits of her husband, his offensive or immoral behavior, the use of violence against his spouse or children. It is desirable to support these words with evidence. Suitable document confirmations, witness statements, photos, pictures of injuries, medical certificates from the doctor.

Divorce without the consent of his wife

If the wife does not give the divorce, it is also possible to divorce her without her consent unilaterally. She will not be able to interfere with the dissolution of marriage, even if she ignores the court proceedings. After her third unexcused absence, the divorce will still take place.

The only exception is the refusal to divorce a woman who has recently given birth or is pregnant. In this case, the marriage will not be dissolved until the baby is one year old. This rule only applies when the divorce is initiated by a man. If a pregnant or recently confined woman wants a divorce on her own, the court will grant her request.

How long does the court process last and then what?

After a divorce lawsuit is filed with the court, it should take more than a month before a decision is made to dissolve the marriage. The judge may extend this period at his discretion to three months to allow the spouses to reconcile. The party who does not want a divorce may also ask the judge to allow time for the marriage to be restored.

At the end of the period given by the judge, the marriage is dissolved, and an excerpt from the court decision is handed over within three days to the Registry Office where the marriage was concluded. The parties to the divorce proceedings will have to appear at the Registry Office, present the decision of the court and obtain a divorce certificate.

The parties to the divorce proceedings may not start a new family until they have received the divorce papers.

The initiator of the divorce should keep in mind that divorce without the consent of the other partner is always a lengthy process, so you should be patient and not count on a quick dissolution of marriage.