Divorce when the wife is pregnant: the nuances of the process
Sometimes waiting for a child turns out to be not only a joy, but also a test for the couple. For various reasons, it is during this period that the desire to end the relationship arises. However, divorce when pregnant has its own nuances.
If both agree
When the desire to dissolve the marriage is mutual, difficulties usually do not arise. At any time, while the child is not born, the couple can go to the registry office, pay the state duty and write an application for divorce. In addition you will need the passports of the parties and the marriage certificate. If a woman cannot go to the registry office, but agrees to a divorce, she can confirm this in writing. The document will need to be certified by a notary.
Although the employees of the registry office at their initiative may try to dissuade the spouses from this step, they may not refuse to accept the application.
Traditionally, a month passes between the filing of the petition and the official divorce. If during this time the spouses have not changed their decision, you must go to the registry office, get a certificate of divorce and put a stamp in your passport. If they change their mind – you will need to withdraw the application.
When the consent is not necessary
In some situations, a pregnant woman may divorce her spouse through the registry office without his consent. This right is enshrined in article 19 of the Family Code in cases of
- a sentence that has entered into force, convicting the man of 3 years or more of imprisonment;
- a valid court decision declaring the husband legally incompetent and missing.
It is clear that in this situation, pregnancy often comes from another man. For the law it does not matter. But by formalizing the divorce, a woman gets a chance to marry the father of her child.
If the initiator is a wife
The law does not limit a woman’s desire to separate from her man. She can do this at any time, including during pregnancy. When a spouse objects to this, the issue will have to be resolved in court. It is not necessary, but desirable, to justify their decision. For example, asocial or aggressive behavior of the spouse, lack of financial support, etc. If there are no objective reasons for divorce, the court will not refuse to accept the application and divorce on the initiative of the wife, but the judge at its discretion may assign a maximum time for reconciliation – 3 months.
If the initiator – the husband
If a man decides to leave his pregnant wife, the law has no right to stop him. But here prevent the registration of a divorce may legally. From the moment when it became known about the pregnancy and until after the birth of the child has passed a year, the spouse has no right to demand a divorce unilaterally (Art. 17 of the Family Code).
Article 17 of the Family Code – Restrictions on the right of the husband to file a claim for dissolution of marriage
The husband has no right without the consent of the wife to initiate proceedings for the dissolution of the marriage during the wife’s pregnancy and within a year after the birth of the child.
The law does not provide exceptions to this rule. Even if the process has already begun and during it the woman became aware that she is expecting a child, she may present a certificate of pregnancy at any time before a decision is made. The case will be dismissed even if the man continues to insist on the divorce.
Also, it is not possible to file for divorce on the husband’s initiative until one year has passed since the birth of the child. It does not matter if the baby lived to his first birthday. Even if he dies in childbirth, this will not give you the right to separate from his mother. Only after 12 months has passed will a man be able to file for divorce.
Sometimes men doubt that the child was conceived by him and ask for a divorce on that basis. If the wife does not confirm these suspicions, the only way is with a DNA test. Technically, it can be done even during pregnancy, but it requires the consent of the expectant mother. They rarely give it, so the man has to wait until the baby is born and challenge paternity through the courts.
Even if you manage to prove that the child from another man, the law does not provide for this fact as a reason to dissolve the marriage without the consent of the spouse until the child is one year old. But in this case, the man is spared the need to pay child support.
When to go to court
A woman who has decided to separate from her husband during pregnancy must file a claim with the court in the following cases (Article 19 of the Family Code)
- the spouse is against divorce with a pregnant wife and insists on the preservation of the marriage;
- the couple already have common children;
- there are disputes about the division of jointly acquired property.
In what court to submit documents depends on several circumstances:
- whether the spouses live together or are separated;
- Whether they have other children;
- The amount of disputed property.
If, in addition to the future child of other common children the spouses do not have and there are no property disagreements, the claim shall be filed in a justice of the peace at the place of residence of the defendant. If it is necessary to determine the fate of children born earlier, or to divide a joint property worth more than 50 thousand rubles, the case should be considered by the district court. When the time of pregnancy the spouses are separated, and the woman has other children from the marriage, she may apply to the court in her own place of residence.
Statement of claim for divorce
Statement with a request to dissolve the marriage is made in free form in accordance with the general requirements for business documents.
First indicate the full name of the court. You can learn it on the spot or look on the Internet. Then go information about the plaintiff and the defendant – full name and address of residence. It is also desirable to specify a contact phone number for more operational communication.
The substantive part contains information about the marriage: when it was concluded, whether there are children. Next, the plaintiff substantiates the impossibility of further family life and sets out a request to the court to dissolve the marriage. Also, a woman may have other requirements – to determine the place of residence of children, to appoint the alimony, to divide the common property.
Package of documents, which is attached to the statement of claim, depends on the specific situation. In any case, you will need:
- A copy of the woman’s passport;
- A copy of the certificate of marriage;
- Receipt of payment of the fee.
The rest of the documents depend on the circumstances of the particular case. For example, birth certificates of other children, list and estimated value of joint property, pregnancy certificate, alimony agreement (if both spouses agree to divorce, but they have children and the law requires filing a lawsuit in court), etc. There is no limit to the list of attachments, the only requirement is that they must relate to the merits of the case.
At the end, the applicant puts a date and signature. Total need three copies of the application – one the court will send the defendant, the other will be attached to the case, the third with a stamp of acceptance takes the plaintiff.
If there is no possibility of submitting documents in person, they can be sent by registered mail with notification of receipt. Sessions are scheduled one month after filing.
During the hearing, the judge’s task is to make sure that the continuation of family life is impossible. He hears the arguments of the parties and on this basis sets a period of time for reconciliation. The maximum period is three months.
Also, the court will have to determine other issues: who will stay with other children after the divorce (if any), to appoint child support, determine the fate of jointly acquired property. In this case, one meeting may not be enough and the process will drag on.
Once all issues are resolved, the parties will receive a court order. Another month is given to appeal it. After that, the document enters into force. The clerk of the court within three days will independently send an extract to the registry office where the marriage was registered. After that, the spouses are officially considered to be free.
Rights of a pregnant woman after divorce
The law protects pregnant women not only during the marriage, but also after it is dissolved. Since during pregnancy and in the first years after birth it is difficult for her to support herself, the law gives her the right to demand alimony not only for the baby, but also for herself. This rule applies from the time of the divorce until the baby is 3 years old. If the child is born with disabilities, or became them after some time, the right to support remains until his majority. But only if the woman proves her need for additional financial support.
Alimony for maintenance of a pregnant woman and a mother raising a child shall be awarded in a fixed amount of money. Specific amounts are not specified in the law. Spouses can agree on them independently and record them in an alimony agreement. If the court decides the issue, payments are usually assigned in multiples of a regional subsistence minimum to facilitate calculations and indexation.
The final amount depends on the financial situation of the parties. If the husband has no official income or other dependents, he can ask for the payments to be reduced or fully exempted. He can also show that his wife does not need extra help. For example, she has a rental income or a high salary, and she is entitled to good maternity benefits. But practice shows that the court usually sides with the woman.
The woman does not have to prove her need for the money, the mere fact that she is pregnant is enough. But she can present evidence of the costs – the conduct of the pregnancy in a paid clinic, buying vitamins, “dowry” for the future child, etc. – to get larger alimony payments. She also has the right to apply for it at any time until the child reaches the age of 3.
If the man disputes paternity and his suspicions are confirmed, the ex-wife will lose her right to alimony. Likewise, she cannot rely on her ex-husband’s financial support after remarriage. Further responsibilities for her maintenance are deemed to pass to the new spouse, and the previous spouse only has obligations to the children.
Divorce during pregnancy through the registry office and through the court.
Divorce during pregnancy is a rather complicated legal procedure.
According to the Family Code (FC RF), the dissolution of a marriage is possible through the registry office and the court. Through the Registry Office procedure is faster and easier in the case of mutual consent of both spouses in the absence of children and a dispute on the division of jointly acquired property.
In other cases, the dissolution of the marital union occurs through the courts in accordance with the requirements stipulated by the Civil procedural legislation
Go through a divorce during pregnancy can be difficult for the future mother, and her worries will affect the baby. The legislator has provided for this. Therefore, limited the right of the husband to dissolve the marriage with the spouse who is pregnant, as well as in the first year after his birth.
The possibility of divorce.
Family law provides various options for resolving the issue of divorce at the time of pregnancy. Divorce is permitted only with the consent of the future mother. This applies both to the registry office, and the court.
At the initiative of the wife.
Divorce at the initiative of a pregnant wife is allowed regardless of the fact of pregnancy or the age of the baby. If the husband refuses to divorce, the consideration of a disputed case will be carried out in accordance with the standards stipulated by the family and civil procedural legislation
At the initiative of the husband.
Divorce on the initiative of the husband is possible only if there are no basic conditions stipulated by Article 17 of the Family code: Pregnant woman is not against the divorce. The child is 1 year old. In other cases, the Registry Office will refuse to accept the application for divorce. The statement of claim will return or deny the plaintiff’s claims, if the spouse will confirm the fact of the pregnancy with the documents.
If the wife agreed, and then changed her mind?
If a pregnant woman is against the dissolution of the marriage, she has the right to declare this at any time before the official confirmation of the termination of the marital union or before the entry into force of the court decision and the registration of the certificate of dissolution of marriage.
If the husband has tried to conceal the fact of his wife’s pregnancy.
Such a development is likely only in the courts. The very attempt to conceal this fact shows that the woman is against the destruction of the marital union. If she learns about the process, it is enough for her to come to the court hearing and provide documents confirming the pregnancy. The claim will be dismissed on the same day. If the husband managed to conduct the process unnoticed by the wife (intercepted and destroyed summons), restoration of justice is possible in the revision of the case under newly discovered circumstances. Not to mention the likely criminal prosecution for attempting to mislead the judiciary and filing knowingly false information.
If the husband is sure that the child is not his.
The Family Code does not give the right to initiate divorce proceedings at the spouse’s initiative. It does not depend on anything. Even if he is sure that his wife is not faithful to him. In this case there is only one option, which is allowed by the normative base of Russia. Divorce before childbirth is not allowed, but after the birth of a baby and receiving a birth certificate, the new father can initiate legal proceedings to challenge paternity. However, in order to get a basis for a lawsuit, an out-of-court initial genetic examination is required. If it shows that the husband is the father, then during the first year of the baby’s life, divorce is still impossible.
Divorce during pregnancy through the registry office.
If the husband and pregnant wife do not want to lead a life and household together in the future, it is possible to dissolve the marriage by mutual consent. It is not necessary to go to court, it is enough to come to the registry office.
Legal regulation of this issue refers to Article 19 of the UK. Through the Registry Office can be divorced if the woman is pregnant for the first time. In this case, the child has not yet been born. In the case of a baby, the state body will not accept the application, or will draw up a reasoned refusal.
Algorithm of actions.
- It is necessary to come to the registry office together and draw up an application on the form approved by the Ministry of Justice.
- Application must be submitted in one for two.
- Obligatory to put a signature.
- Employee of the state body you need to give copies of documents and the original receipt about the payment of state duty.
Duty Each spouse shall pay 650 rubles of the state duty to the registry office (paragraph 1 of Article 333.26 of the Tax Code).
For a divorce through the Registry Office the documents of a pregnant woman and her spouse will be needed:
-Certificate of the conclusion of the marriage union.
-Receipts of payment of state duty.
After filing an application for divorce is processed within 30 days. After this time, the spouses appear to obtain a certificate of dissolution of marriage. At the moment it is possible to submit such an application and pay the state duty through “Gosusluzhba”. In this case the state duty is paid with a discount of 30%.
Divorce through the courts.
The judiciary considers divorce proceedings when the wife is pregnant, if she initiated such a process.
To start a dispute requires a statement of claim, drafted and prepared in accordance with the rules of the Code of Civil Procedure (Articles 131 and 132). The application itself must be submitted to a justice of the peace court at the place of residence or to a court of general jurisdiction.
The magistrate’s court considers the claim for dissolution of marriage in the case if:
there is no dispute about children;
there is no dispute about the division of jointly acquired property, which exceeds in the total amount of the requirements of 50 thousand rubles.
In other cases, the consideration of the case shall be the jurisdiction of the district court of general jurisdiction.
Algorithm of actions
- It is necessary to make a statement of claim.
- Specify the basic requirements.
- Determine which specific judicial body should consider this dispute, according to the territoriality of residence of the parties. If the husband and wife reside in different territorial boundaries, the territorial location of the defendant is selected.
If the other spouse admits the claim in the hearing and agrees to the divorce, the court will not inquire into the reasons for that decision. If the spouse opposes the divorce of the pregnant wife, they will be granted a period of reconciliation (not more than three months). If, after that time, the wife continues to insist on the divorce, the marriage will be dissolved.