How to dissolve a marriage?
Dissolution of marriage is performed in the registry office, and in some cases – in court (Article 18 of the Family Code).
Dissolution of marriage through the Registry Office is possible in the following cases (Article 19 of the Family Code)
– at the mutual consent of the spouses, if both spouses agree to dissolve the marriage and do not have common minor children;
– at the initiative of one of the spouses, if the other spouse has been recognized by a court as missing, legally incapable or convicted for committing a crime to imprisonment for a term exceeding three years. In this case does not matter, whether the spouses have common minor children.
The dissolution of a marriage is carried out only in court if:
– one of the spouses does not agree to the dissolution of the marriage;
– the spouses have common minor children (except in the case when one of the spouses has been recognized by a court as missing, legally incapable or convicted for the commission of a crime to imprisonment for a term exceeding three years)
– one of the spouses, in spite of the absence of his objections, evades the dissolution of the marriage in the Registry Office (for example, refuses to submit an application or not wishing to appear for the state registration of the dissolution of the marriage) (Article 21 of the Family Code).
It should be borne in mind that the husband has no right without the consent of the wife to initiate proceedings for dissolution of marriage during her pregnancy and within a year after the birth of the child (including if the child was born dead or died before he reached the age of one year) (Article 17 of the Family Code; clause. 1 Decision of the Plenum of the Supreme Court of the Russian Federation of 05.11.1998 N 15).
I. Dissolution of marriage by Registry Office (Articles 32, 33, 34 of the Law of 15.11.1997 N 143-FZ)
Step 1. make a written application for dissolution of marriage.
If the marriage is dissolved by mutual consent of the spouses, they make a joint statement on dissolution of marriage. If one of the spouses will not be able to personally appear in the registry office to file an application, it is possible to draw up two applications for dissolution of marriage. The signature of the spouse who will not be able to submit the application in person, must be certified by a notary.
If the marriage is dissolved on the initiative of one of the spouses, the application is made by one spouse.
Step 2. pay the state duty for the state registration of the dissolution of marriage, including the issuance of certificates of dissolution of marriage.
If dissolving the marriage by mutual consent of the spouses you need to pay a duty of 650 rubles from each spouse.
If the marriage is dissolved at the request of one of the spouses, the duty rate is 350 rubles (clause 2 clause 1 of Article 333.26 of the Tax Code).
Step 3. apply to the Registry Office at the place of registration of marriage or at the place of residence of the spouses (one of the spouses) with an application and other documents.
If the marriage is dissolved by mutual consent the application can be submitted to the Registry Office personally or sent to the Registry Office in the form of an electronic document through the Single portal of state and municipal services (functions). Also the application can be submitted through the multifunctional center.
When dissolving a marriage at the request of one of the spouses application is submitted to the Registry Office personally. It is necessary to submit:
– documents, which confirm the right of a spouse to apply unilaterally: duly certified copy of the court decision, which came into legal force, about the recognition of the other spouse as incapacitated or missing; a court sentence on conviction of the other spouse of a crime to imprisonment for a term exceeding three years;
– Marriage certificate.
Pay attention! In case of loss of the marriage certificate, if the state registration of the marriage was carried out by the Registry Office, which filed an application for divorce, the presentation of a second certificate of marriage is not required (Clause 4 of Article 33 of the Law N 143-FZ).
You should also bring a receipt (receipts) on payment of state duty for the state registration of marriage dissolution, including the issuance of certificates of dissolution of marriage (clause 25 of the Administrative Regulations, approved by Decree of the Ministry of Justice of Russia from 29.11.2011 N 412).
Step 4. Appear for the registration of the dissolution of marriage and receive a certificate of dissolution of marriage.
Registration is carried out after one month from the date of filing an application for dissolution of marriage.
If a marriage is dissolved by mutual consent, it is sufficient that at least one spouse is present.
Registration of the dissolution of the marriage on the application of one of the spouses is made in his presence. In this case, the applicants shall return the certificate of marriage with a mark of state registration of dissolution of marriage (clause 4 of Article 33 of the Law N 143-FZ).
Marriage is considered dissolved from the date of state registration of its dissolution (clause 1 of Article 25 of the Family Code).
A certificate of dissolution of marriage is issued on the day of registration of marriage dissolution for each spouse (Article 38 of the Law N 143-FZ).
II. Dissolution of marriage in court
Step 1. determine, in what court you should apply.
Apply to a justice of the peace is necessary, if between the spouses is no dispute about the children or if the claim is made about the section between the spouses of the jointly acquired property at the claim price, which does not exceed fifty thousand rubles.
In other cases, you need to go to the district court.
The claim should be filed at the place of residence of the second spouse. However, you can bring it at their place of residence, if you have a minor child or for health reasons it is difficult to travel to the place of residence of the second spouse, and also if simultaneously with the claim for dissolution of marriage filed a claim for recovery of alimony (art. 23, 24, 28, p. 3, 4, art. 29GPK RF).
Step 2. prepare and submit the documents to the justice of the peace or court office
– Statement of claim. 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 mutual consent to the dissolution of the marriage – the motives for dissolution of marriage, whether there are other requirements that can be considered simultaneously with the claim for dissolution of marriage
– marriage certificate (original)
– birth certificates of children;
– A receipt for the payment of the state duty in the amount of 600 rubles (subparagraph 5 of paragraph 1 of Article 333.19 of the Tax Code)
– Power of attorney (if interests in court will be represented by the representative);
– documents confirming the circumstances, on the basis of which the claim is filed at the plaintiff’s place of residence;
– Other documents confirming the circumstances on which you base your claim.
Additionally need to submit an agreement on the procedure for exercising parental rights, on the payment of alimony, on the division of jointly acquired property and other documents associated with the dissolution of the marriage, if they were made (art. 131, 132 of the Civil Procedural Code; paragraph 7 of Resolution of the Plenum of the Supreme Soviet of the Russian Federation of 05.11.1998 N 15).
These documents are submitted in the form of the original or duly certified copies (clause 2 of art. 71 of the Civil Procedural Code of the Russian Federation).
You must also attach copies of the statement of claim and documents for the defendant and third parties, depending on their number.
The statement of claim may be submitted directly to the court or by mail to the plaintiff or his representative, who has the power to submit the application, expressed in the power of attorney.
Step 3. Attend court hearings and receive a court decision on dissolution of marriage.
The General term of consideration of the case and decision of the justice of the peace must not exceed one month from the date of receipt of the application, and the district court – two months from the date of filing the application to the court. the Question of the adoption of the court shall be considered within five days from the date of its filing in court. At the same time the dissolution of the marriage is made by the court not earlier than one month from the date of filing by the spouses of the application for dissolution of marriage. In addition, when considering the case about the dissolution of the marriage in the absence of the consent of one of the spouses to divorce, the court may take measures to reconcile the spouses, and is entitled to delay the proceedings, assigning the spouses a period of reconciliation within three months (art. 133, part 1 of article 154 of the Civil Procedural code of the Russian Federation; clause 2 of article 22, clause 2 of article 23 of the Family Code).
The marriage is considered dissolved from the date of entry into force of the court decision.
The court within three days from the day the court decision enters into legal force should send an extract from it to the Registry Office at the place of the registration of the marriage (Article 25 of the Family Code).
Step 4: Apply to the Registry Office at the place of registration of marriage or at the place of residence of any of the former spouses with an application (if made) and the following documents:
– Passports of the former spouses (one of the spouses);
– an extract from the court decision on the dissolution of the marriage, which came into force;
– Receipts on payment of the state duty of each spouse in the amount of 650 rubles (Article 333.26, paragraph 1, item 2 of the Tax Code).
The application (if prepared) and the documents may be submitted in person or through a representative authorized by the ex-spouses or any of them. In this case the representative’s passport and power of attorney must also be submitted. The application can also be sent to the Registry Office in the form of an electronic document via the single portal of state and municipal services (functions).
Apply to the Registry Office the former spouses may not only together, but also separately.
Registration of marriage dissolution is performed on the day of treatment upon presentation of all duly executed necessary documents (clause 1 of Article 35 of the Law N 143-FZ; clauses 8, 16, 25 of the Administrative Regulations).
If one of the former spouses registered the dissolution of marriage in the body of RACs, and the other former spouse applies to the same body of RACs later, information about this former spouse entered in the previously made record of the dissolution of the marriage. Extract from the court decision on dissolution of marriage in this case may not be submitted (clause 1 of Article 35 of the Law N 143-FZ).
Step 5. Get a certificate of dissolution of marriage.
The certificate is issued to each spouse (Article 38 of Law N 143-FZ).
To resolve a court dispute you may need qualified legal assistance of a specialist, the cost of which may be substantial depending on the complexity of the case, the amount of the claim and other factors. In case of representation of your interests in court you may need a notarial power of attorney for the representative (art. 185, 185.1 of the Civil code of the Russian Federation; part 2 of art. 53 of the Civil code of the Russian Federation).
Remember, at any stage of a family dispute Legal center for family Affairs of the lawyer Anatoly Antonov is ready to provide You with legal support. Call us by phone in Samara + 7 (846) 212-99-71 right now and sign up for a consultation at a convenient time for you.
The original article was taken here
Date of update: 04.01.2016
Total comments: 2
We are divorcing there is a minor child. The defendant said that he would register me and my son in our apartment, which was bought during the marriage, after the divorce. How will this affect our rights to stay in this property? What to write in the claim if I do not agree with the defendant.
Good day! By virtue of article 37 of the Family code of the Russian Federation, as a general rule, the apartment is subject to division in equal shares. However, the father of the child can voluntarily renounce his share in the apartment already in court. The mere fact of registration does not by itself give rise to the right of ownership of the apartment.
Divorce through Court
When is the divorce through the court? These cases are specified in Article 21 of the Russian Federation Family Code:
- there are minor children (common, native or adopted);
- The husband or wife refuses to divorce;
- One of the spouses refuses to submit an application or fails to appear at the registry office.
How does divorce through the court
After filing an application for divorce, the court will be appointed not earlier than one month. The summons about the date and place of the divorce process will come to both spouses.
Options for the further outcome of the court proceedings are three:
- Both spouses fail to appear in the courtroom.
Then the court decides to close the case on the grounds that the plaintiff and defendant have changed their minds about divorce.
- One of the spouses or their representative fails to show up for the divorce proceedings.
Then the judge finds out the reasons for the party’s absence. With either result explaining whether or not there are reasons for not showing up, the first hearing will be postponed for a period of time to be determined by the judge. If the non-appearing spouse provides important reasons for his or her absence, then the time frame will be set with those circumstances in mind.
The court will set a reconciliation period of one to three months, if the absent party did not appear because he or she did not agree to the divorce and the rights of the children are not violated.
If there is no reason for non-appearance, then the court may rule in absentia.
If there is an agreement between the spouses, the judge may decide in one sitting. This is possible if there are no property disputes, the decision about the children’s place of residence is mutual and it does not violate the rights of any child. Then the court decides to grant the divorce.
If there is no agreement between the spouses, then the court finds out the reasons for the divorce and grants a period of up to three months (Article 22 Clause 2) for reconciliation.
If reconciliation did not occur, then the court clarifies all the issues in the case: who the children remain with, the division of property and the amount of child support, if alimony has been applied for. After which it decides whether to divorce.
Court hearings may be postponed for reasons of gathering any evidence, documents and at the request of the parties.
After the petition for divorce is granted, the spouses are considered divorced. The decision of the court will be submitted to the Registry Office and after 10 days, the divorce certificate will be issued. It is created in duplicate and the spouses themselves take it from the authorized person, providing a copy of the decision.
If one of the participants in the case does not agree with the results of the divorce, then during this period he has the right to file a new claim.
Filing of a Statement of Claim
Articles 22, 23 and 24 of the Code of civil procedure of the Russian Federation stipulate the rights of the parties and obligations when filing a suit.
The claim is filed at the place of registration of the defendant, if the spouses live apart (art. 28 of the Civil Procedural Code) or at the common actual place of residence of the spouses.
If it is not known where the defendant resides, the plaintiff files a claim at his discretion:
- at the defendant’s last known place of residence to the plaintiff;
- The location of the defendant’s property;
- If the plaintiff is ill or has minor children, he has the right to file a claim at his place of residence.
Read more about the statement of claim here.
You may also be interested in this article about the other documents for divorce through the court.
Who has the right to a court divorce
- Either spouse.
- The guardian of the spouse, if the court found the spouse incompetent.
- The prosecutor. He may file a lawsuit when required in the interests of the incapacitated or missing person.
According to the Law on Prosecutor’s Office of the Russian Federation, the prosecutor can be a plaintiff in a civil case because he protects people’s rights.
A husband cannot sue without his wife’s consent if she is pregnant or if it has not been a year since she gave birth, even if the child was stillborn or died before one year of age (Article 17 of the Family Code).
Such exceptions are made in order to preserve the health and nerves of the mother and child, as judicial burdens have a negative impact on their well-being.
What judge to apply to
There are magistrate and federal judges. Each category is competent to conduct the process only under certain conditions. The categories differ in form and status. Federal judges are held to a higher degree of professionalism and are considered to be more competent in their cases.
If both spouses agree to divorce, they have no disputes about children, you must go to a justice of the peace. If the spouses are arguing about the children or property, then with a claim they need to go to the district court, the cases are heard by federal judges (Article 23-24 of the Civil Procedure Code).
Reasons for divorce in court
A court divorce is considered possible when the court establishes clearly that the family has split up and further life together between the spouses is not possible (Article 22 of the Family Code).
The Family Code does not enshrine the motives for dissolution of marriage.
Most often among the reasons are: infidelity of spouses, gambling addiction, alcoholism, drug addiction, sexual dissatisfaction, the mismatch of vital interests, disagreements on financial issues, non-compliance with the terms of the marriage contract.
Spouse against divorce
If the couple agrees to divorce through the court, the court will dissolve the marriage without finding out the reasons for the divorce (this is stipulated by Article 23 of the Family Code).
If the plaintiff does not tell the court the reasons for the breakdown of the marital relationship, the court may temporarily stop the lawsuit. But not to refuse, but only to offer a reconciliation, and give this three months (Article 22 of the UK). If the spouses have settled the conflict, the proceedings are stopped. At the same time, any of the spouses can make a claim again, then the court returns to the case and makes a decision.
If one of the couple is against it, the plaintiff must describe in detail the reasons for the divorce, why the marriage fell apart, and what is preventing it from being restored. The court, having studied the materials, decides whether joint life is possible for the couple in the future.
Evidence in such a case can be offenses committed by the parties (abuse, violence, insults):
- Witnesses (the plaintiff must request that witnesses be called);
- Written evidence (certificates from the emergency room about the beatings, police records) – they are attached to the case.
Divorce in any case will end in a favorable decision. The only difference will be the timing. If there is consent from both parties, the divorce will be obtained at the first hearing, if there is no consent – there will be several hearings.
How to divide children and property
Such issues are handled in parallel with the divorce proceedings. During the process, one or both parties may request the court to divide property and (or) designate who the parents should stay with later, how and to whom child support will be paid.
If there is agreement on such issues, or if the spouses want to resolve these issues later, they may choose to state in the lawsuit that they have no disputes or to describe the nature of the agreements to which they have referred in detail to the court.
Read more about the peculiarities of divorce with children in this article.
Reconciliation and waiver of divorce
The defendant has the right to petition to postpone the case for a while to give the husband and wife an opportunity to save the family. The court is accommodating and usually allows up to three months for the conflict to be resolved.
When the judge himself decides to resort to this procedure (the plaintiff, for example, is not very confident at the hearing), it is only possible to shorten this period if both the plaintiff and the defendant ask the court to do so.
Naturally, the conciliation period delays the case. Even if the plaintiff considers this procedure unnecessary, there is a positive point for him: it will be more difficult to challenge the decision on the case in the court of higher instance.
The plaintiff has the right to refuse to dissolve the marriage. It is valid until the court has retired to the deliberation room. The case ends with a settlement agreement, which can include terms about children and property.
A waiver of suit does not mean that the marriage cannot be dissolved later. If the couple’s relationship deteriorates, you can sue again. The divorce case is terminated (and the marriage is therefore saved) if, at the end of the period of time the judge allocated for reconciliation, the plaintiff does not come to the hearing.
Timing of divorce proceedings
On average, two to four court sessions are required for the divorce process (if any party is opposed to the divorce). If the parties are in agreement, a decision is usually made at the first hearing.
The minimum time to process a divorce is one month and 11 days. If the decision is issued before that time, it will not be valid.
Average time for filing when spouses agree to divorce is a month and a half, and 1.5-3 months if someone disagrees, sometimes more than 3 months.
Circumstances that affect the processing time:
- the norms of the Family Law (the divorce is conducted no earlier than one month from the filing of the lawsuit);
- The norms of the Civil Procedural Code of the Russian Federation (provide the period for appeal against a court decision before it enters into force);
- The workload of the court and the degree of efficiency of the post office, which notifies the parties;
- complaints about unlawfulness of judicial actions (may increase the term for registration for another 2 months);
- correction of mistakes and lapses (may add another 1-3 weeks to the term);
- Inaction of any party.
The price of divorce through the court
The Tax Code of the Russian Federation (art. 333.19, p. 5) specifies the amount of the state duty. At the beginning of 2021 it makes 650 rub.