Law on divorce – detailed description

10 questions about divorce

Divorce is certainly one of the hardest trials in human life and requires, in addition to the enormous moral strength, the solution of a large number of legal issues. The main issues to be resolved in a couple’s divorce are usually the following: 1) divorce procedure (judicial, extrajudicial), 2) division of property (including debts); 3) determination of the place of residence of children and the order of communication with them by the parent living separately; 4) alimony. These are the most common issues. Less common are also the deprivation (restriction) of parental rights, disputes over marriage contracts, and the recovery of alimony from former spouses.

This article will discuss in detail the divorce procedure itself and provide answers to the most common questions that arise.

Where does divorce take place – in the Registry Office or in court?

As a General rule, the dissolution of marriage is performed in the civil registry office. Dissolution of marriage by mutual consent of the spouses who do not have common minor children, by virtue of clause 1 of article 19 of the Family Code is performed in the civil registry office, regardless of the presence or absence of a dispute between the spouses on the division of property, which is their common joint property, on payment of funds for maintenance of a disabled spouse in need.

In the judicial order is made in the following cases:

  • if the spouses have common minor children, except in cases where the other spouse: recognized by the court as missing, declared by the court legally incapable, convicted for the commission of a crime to imprisonment for a term exceeding three years (in these three cases, regardless of the presence of minor children, divorce is carried out in the bodies of civil registry).
  • In the absence of consent of one of the spouses to divorce;
  • if one of the spouses, in spite of the absence of objections from him, evades the dissolution of the marriage in the body of the civil registry office, including refusing to submit an application.

How to dissolve the marriage of an incapacitated / limited capacity?

If a spouse is declared legally incapable by a court, the marriage is dissolved at the request of the other spouse in the civil registry office. This procedure does not apply to cases of dissolution of marriage with persons limited in capacity due to alcohol or drug abuse. Dissolution of marriage on claims brought against these persons, as well as the claims of these persons are made in the General order.

How do I dissolve a marriage with a convicted person?

If the spouse is convicted of a crime to imprisonment for a term exceeding three years, the marriage is dissolved at the request of the second spouse in the registry office. In other cases, that is, if the case of dissolution of marriage with persons convicted to imprisonment, subject to the jurisdiction of the court, the claim for dissolution of marriage is filed in compliance with the general rules of jurisdiction. If a claim for dissolution of marriage with a person sentenced to imprisonment is accepted by the court in accordance with Article 28 of the Code of Civil Procedure of the Russian Federation, it must be based on the last place of residence of the said person before his conviction.

How to dissolve a marriage with a person whose place of residence is unknown or recognized as missing?

An action for dissolution of marriage with a person whose place of residence is unknown may be brought at the choice of the plaintiff, that is, at the last known place of residence of the defendant or at the location of his property, and in case the plaintiff has minor children with him or it is difficult for him to travel to the place of residence for health reasons – at his place of residence (parts 1 and 4 of article 29 of the Civil Procedure Code).

Taking into account that by virtue of clause 2 of art. 19 of the Family Code of the Russian Federation the dissolution of marriage with persons declared missing, regardless of the presence of the spouses common minor children, is made in the civil registry office, when addressing with such a claim to the person in respect of whom there is no information about the place of his residence for a year, the judge explains to the plaintiff the procedure for declaring citizens missing (art. 42 of the Civil Code).

However, if the spouse does not wish to apply to court to declare the other spouse missing, the judge is not entitled to refuse to accept the claim for dissolution of marriage, and must consider the claim on general grounds.

What must be specified in the claim?

The claim for dissolution of marriage must meet the requirements of art. 131, 132 OF THE CIVIL CODE OF THE RF. In particular, it indicates, when and where the marriage was registered, whether there are common children, their age, whether the spouses have reached an agreement on their maintenance and education, in the absence of a mutual consent to the dissolution of the marriage – the motives for dissolution of marriage, whether there are other requirements, which may be considered at the same time with the claim for dissolution of marriage. To the application shall be attached: the certificate of marriage, copies of birth certificates of children, documents about earnings and other sources of income of the spouses (if the claim for recovery of alimony) and other necessary documents.

What is a period for reconciliation?

When considering the case about the dissolution of the marriage in the absence of consent of one of the spouses to divorce, the court may take measures to reconcile the spouses and may postpone the proceedings, assigning the spouses a period of reconciliation within three months. This period is called conditionally “the period for reconciliation”. Depending on the circumstances of the case, the court may, at the request of the spouse or on its own initiative, postpone the proceedings several times, but so that the total period allowed the spouses to be reconciled does not exceed the period prescribed by law of three months.

The period granted for conciliation may be shortened if the parties so request and if the reasons indicated by them are recognized by the court as valid. In such cases, a reasoned ruling must be issued.

The court order to postpone the proceedings of the case for the reconciliation of the spouses may not be appealed against in the appeal and cassation, as it does not preclude the further movement of the case (clause 2 of part 1 of art. 371 of the Civil Procedural Code).

After this period of time, the dissolution of the marriage is carried out, if measures on reconciliation of the spouses were unsuccessful and the spouses (one of them) insist on the dissolution of the marriage.

When cannot I file for divorce?

According to Article 17 of the Family Code, the husband has no right to initiate dissolution of marriage proceedings without the wife’s consent during the wife’s pregnancy and within one year after the birth of the child. This provision also applies to cases where the child is stillborn or dies before the age of one year. In the absence of the consent of the wife to the consideration of the case on dissolution of marriage, the judge refused to accept the claim, and if it was accepted, the court shall stop production on the case (clause 1 of part 1 of article 134, paragraph 2 of article 220 of the Civil Procedural code of the Russian Federation). These determinations are not an obstacle to the re-appeal to the court with a claim for dissolution of marriage, if the circumstances referred to in art. 17 of the Family Code of the Russian Federation.

What issues the court resolves at the same time with the claim for dissolution of marriage?

First of all, issues related to children. So, when postponing the proceedings of the case on the dissolution of marriage and the recovery of alimony for children in connection with the appointment of a period for the reconciliation of the spouses, it should be found out whether the defendant participates in the maintenance of children. If the court finds that the defendant does not fulfill this obligation, it is entitled, in accordance with Article 108 of the Family Code, to issue an order for the temporary recovery of alimony from the defendant until the final consideration of the case on the dissolution of marriage and the recovery of alimony.

In the case when the dissolution of marriage in court, it will be established that the spouses have not reached an agreement on which of them will live minor children, on the procedure and amount of the funds to be paid for the maintenance of children and (or) a disabled spouse in need, as well as the division of the common property of the spouses or will be found that such an agreement was reached, but it violates the interests of children or one of the spouses, the court settles these issues on the merits simultaneously with the claim for dissolution of marriage.

At the same time with a claim for dissolution of marriage may be considered and the claim for recognition of the marriage contract as invalid in whole or in part, as these requirements are linked (art. 151 of the Civil Procedural Code). The court may in the same proceedings and consider a counterclaim of the defendant on recognition of the marriage null and void (art. 138 of the Civil Procedural Code).

If at the same time with the claim for dissolution of marriage claimed for recovery of alimony for the children, but the other side disputes the record of the father or mother of the child in the register of births, the court should discuss the issue of separation of these requirements of the case of dissolution of marriage for their joint consideration in a separate proceedings (Article 151 of the Civil Procedural Code).

When is the marriage considered dissolved?

In accordance with clause 1 of Art. 25 of the Family Code, a marriage dissolved in court is considered dissolved from the day the court decision enters into legal force. Mentioned provision by virtue of paragraph 3 of Article 169 of the Family Code does not apply to cases where the marriage was dissolved in court before May 1, 1996, that is, before the day of enactment of Article 25 of the Family Code. Marriage dissolved in the civil registry office is considered terminated from the date of state registration of the dissolution of the marriage in the civil registry book, regardless of when the marriage was dissolved – before May 1, 1996 or after that date.

Can a marriage be declared null and void?

Family law stipulates certain grounds when it is possible to demand that a marriage be declared null and void.

The list of grounds for declaring a marriage invalid, contained in clause 1 of article 27 of the Family Code, is exhaustive and is not subject to expansive interpretation. Such grounds include: a violation of statutory conditions for entering into marriage (Articles 12, 13 of the Family Code); the presence at the time of the marriage of the circumstances that prevent its conclusion (art. 14 of the Family Code); concealment by one of the persons entering into marriage, the other person of the existence of a venereal disease or HIV-infection (clause 3 of Article 15 of the Family Code); fictitious marriage (clause 1 of Article 27 of the Family Code).

Taking this into account, the violation of the statutory requirements of the procedure for the marriage (for example, the registration of the marriage before the expiration of a month from the date of filing an application to the civil registry office, if this period was not reduced in accordance with the procedure stipulated by clause. Article 11 (1) of the Family Code of the Russian Federation) cannot be a basis for the recognition of the marriage as invalid.

In accordance with clause 4 of Article 29 of the Family Code of the Russian Federation spouses after the dissolution of the marriage (both in court and in the civil registry office) does not have the right to raise the issue of recognition of the marriage as invalid, except in cases where the validity of the marriage is challenged on grounds of presence between the spouses prohibited by law degree of kinship or the status of one of them at the time of registration of the marriage in another unbreakable marriage.

If, in the above cases, the marriage was dissolved in court, the claim for recognition of the marriage as invalid may be considered by the court on condition of cancellation of the decision on the dissolution of the marriage, since, when making such a decision, the court proceeded from the fact of the validity of the marriage. According to part 2 of article 209 of the Civil Procedural Code of the Russian Federation, the facts and legal relations established by such a decision, can not be disputed by the same parties in other proceedings.

Article 22 of the Family Code of the Russian Federation. Dissolution of marriage in court in the absence of the consent of one of the spouses to divorce (the current version)

1. Dissolution of marriage in court shall be carried out if the court finds that further cohabitation of the spouses and preservation of the family is impossible.

2. In considering the case on dissolution of marriage in the absence of consent of one of the spouses to divorce, the court has the right to take measures to reconcile the spouses and has the right to postpone the proceedings by giving the spouses a period for reconciliation within three months.

Dissolution of marriage is carried out, if measures on reconciliation of the spouses were unsuccessful and the spouses (one of them) insist on the dissolution of the marriage.

Comment to Article 22 of the Family Code

1. The court may dissolve the marriage without finding out the reasons for the divorce, although usually the reasons for dissolution of marriage are examined in a court session. It also does not examine the question of which spouse is at fault for the dissolution of the marriage. The only conclusion the court should reach is that it is not possible for the spouses to continue living together and for the family to remain together. The court is not precluded from dismissing a divorce action if it concludes that the family can be preserved and that the separation is temporary in nature. Denial of the lawsuit may follow even if measures to reconcile the spouses were unsuccessful and one of the spouses continues to insist on the dissolution of the marriage.

The statement of claim for dissolution of marriage must meet the requirements of Art. 131, 132 OF THE RF CIVIL CODE. In particular, it indicates when and where the marriage was registered, whether there are common children, their age, whether the spouses have reached an agreement on their maintenance and upbringing, in the absence of a mutual consent to the dissolution of the marriage – the motives for termination of marriage, whether there are other requirements that may be considered simultaneously with the suit for dissolution of marriage. To the application shall be attached: the marriage certificate, copies of birth certificates of children, documents on earnings and other sources of income of the spouses (if the claim for recovery of alimony) and other necessary documents.

The consent of the Respondent to the dissolution of marriage can be expressed both in written response to the statement of claim, and in the form of his handwritten signature on the statement of claim. It seems that in the latter case, in order to avoid fraud it is desirable to certify the signature in the prescribed manner. Consent to the dissolution of marriage may be obtained at any stage of the proceedings. In this case, it is either recorded in the protocol and the corresponding entry is signed by the defendant, or a separate document is drawn up, also, of course, signed by the defendant.

Having accepted the application for dissolution of marriage, the judge in each case must carry out preparation for the trial in the manner prescribed by Chapter 14 of the Civil Procedural Code (clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 N 15). Thus, the judge explains to the parties their procedural rights and duties, what claims can be considered simultaneously with the claim for dissolution of marriage, etc. In the statement of claim, among other information, the plaintiff-spouse must indicate the motives, which prompted the dissolution of the marriage (clause 7 of the Resolution of the Plenum of the Supreme court of the Russian Federation dated November 5, 1998 N 15).

It should be noted that dissolution of marriage under the laws of other countries may have significant differences. In particular, the legislation may contain such a condition as the expiry of a certain period of time after divorce or the death of the husband for a woman to enter into a new marriage. Either the separation itself (regardless of the reasons for it) for a certain period of time, or simply the categorical demand of one of the spouses to dissolve the marriage, even if the other spouse has not consented to the divorce and has not violated any rules of family life, are considered sufficient grounds for divorce. However, in most cases, the court will examine the reasons for the divorce. This is necessary to determine the amount of alimony.

2. A different way to dissolve a marriage is if one of the spouses does not consent to the dissolution of the marriage. The lack of consent of one spouse to the dissolution of the marriage is legally irrelevant. If a spouse opposes the divorce, it should not be referring to the desire to save the marriage at all costs, but on such facts from which the court could conclude that the personal relations between the spouses are not irrevocably broken and the family can be preserved. In such cases, the court is entitled to set aside the case by giving the spouses a period of three months to reconcile.

In this case, the ground for the dissolution of the marriage is the irreparable breakdown of the family. Court practice has developed a list of reasons for the dissolution of the marriage (drunkenness of one of the spouses, adultery, etc.).

Thus, for the court decision on the dissolution of the marriage need the following grounds: it is established that the further cohabitation of the spouses and the preservation of the family is impossible, measures to reconcile the spouses were fruitless (if any); spouses (one of them) insist on the dissolution of the marriage.

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