Institutions 

How is divorce done in court? Restoration of marriage in the event of the appearance of a spouse declared dead or recognized as missing. Nuances of judicial dissolution of marriage with children

The termination of marriage in the encyclopedic literature is regarded as the termination of personal and property legal relations of spouses. In the theory of family law, the termination of a marriage is understood as "the termination of legal relations arising between spouses from a legally registered marriage, conditioned by the onset of certain legal facts." To the legal facts that terminate the marriage, according to Art. 16 SK include the following circumstances: a) death of a spouse; b) the declaration by the court of one of the spouses as deceased; c) divorce (divorce). The listed facts are the grounds for the termination of the marriage. In the event of the death of a spouse or the declaration by the court of one of the spouses as deceased, no special registration of the termination of the marriage is required. In such cases, the marriage is considered terminated from the moment of death of the spouse or from the moment of entry into force of the court decision declaring the spouse deceased. The only document confirming the termination of marriage due to the death of a spouse is a death certificate issued by the registry office (Article 68 of the Civil Status Act). The procedure and conditions for declaring a citizen dead are established by the Civil Code. According to Art. 45 of the Civil Code, a citizen can be declared dead by a court if there is no information about his place of residence for five years at his place of residence, and if he disappeared under circumstances that threatened death or giving reason to assume his death from a certain accident, - within six months. A serviceman or other citizen who has gone missing in connection with hostilities may be declared dead by a court not earlier than two years after the end of hostilities. The day of death of a citizen who is declared dead by a court is the day on which the court's decision to declare him dead comes into legal force. In the event that a citizen who has gone missing under circumstances that threatened death or gives grounds to assume his death from a certain accident is declared dead, the court may recognize the day of the death of this citizen as the day of his alleged death, which is indicated in the court decision. Proof of the termination of the marriage as a result of the declaration by the court of one of the spouses as deceased is the presentation of a final court decision announcing the spouse as deceased.

During the life of both spouses, the marriage can be terminated by dissolution (divorce). It should be borne in mind that only a marriage registered in accordance with the procedure established by law can be dissolved. As a result of the dissolution of marriage (divorce), marital relations are terminated for the future (with some exceptions) with corresponding legal consequences for both spouses.

The terms "divorce" and "divorce" are considered in the theory of family law and are used in the law enforcement practice of the registry office and courts as synonyms. These terms are used as synonyms in the law (Art. 24 UK). In pre-revolutionary family law, divorce was defined as "the termination of a legally existing marriage for the reasons specified in the law." In modern scientific literature, dissolution of marriage (divorce) means, as a rule, the termination of a marriage during the life of a spouse or a legal act that terminates legal relations between spouses for the future (with some exceptions provided for in the law).

It should be noted that over the past decade in the Russian Federation there has been a steady trend towards an increase in the number of divorced marriages. According to the State Committee of the Russian Federation on Statistics, the total divorce rate (that is, the number of divorces per thousand of the population) increased by 11% - from 4.0 in 1985 to 4.5 in 1995. In 1996, per thousand facts of state registration marriage, on average, in the Russian Federation, there were 642 divorces. This tendency began to subside somewhat in 1997, when the number of divorces decreased in comparison with 1996 by 24 thousand (4.3%), while the number of marriages increased by 50.7 thousand (5.9%).

In accordance with paragraph 2 of Art. 16 SK, a marriage can be terminated by dissolving it at the request of one or both spouses, as well as at the request of the guardian of the spouse, recognized by the court as legally incompetent, which is new compared to Art. 30 CoBS, which provided for the dissolution of a marriage only at the request of one or both spouses.

The Code endows each of the spouses with the right to dissolve the marriage, with the exception of the case provided for in Art. 17 SK. In Art. 17 SK reproduced the provision in the previous legislation on the inadmissibility of the husband's filing a demand for divorce without the consent of the wife during her pregnancy and within a year after the birth of the child (Article 31 of the KBS). This rule applies both when filing a statement of claim for divorce in court, and when divorcing a marriage in the registry office. It is aimed at protecting a woman during pregnancy and within a year after the birth of a child from unnecessary worries and worries associated with divorce, and therefore at protecting the health of the mother and child.

This rule, as follows from judicial practice, also applies to those cases when a child was born still or did not live to be one year old.

In addition, due to the fact that the enshrined art. 17 SK the norm is aimed primarily at protecting the interests of the mother and the child, the husband has no right to file a demand for divorce without the consent of his wife and in the event that he is not the father of the child. In the legal literature, an opinion has been expressed about the need to exclude the norm provided for in Art. 17 of the UK, as significantly restricting the rights of her husband, which, however, did not find support from the legislator.

Requirements of Art. 17 SK should be applied in any life situations, regardless of the place of residence of a child under the age of one year (with a mother, grandfather or grandmother, father or other persons). The wife's consent to initiate a divorce case is expressed in writing by submitting a joint application with the husband for divorce to the registry office or by means of a corresponding inscription on the husband's application. In the absence of the wife's consent, the registry office refuses the husband to accept the application for divorce, and if the application is accepted, the registry office returns it. When the husband submits a statement of claim for divorce to the court, the wife's consent to the consideration of the case can be confirmed by her written statement (independent or a corresponding inscription on the husband's statement). Otherwise, the judge refuses to accept the statement of claim, and if it was accepted, the court terminates the proceedings. However, this does not prevent the husband from subsequently re-applying to the court with a claim for divorce after the circumstances specified in Art. 17 SK. Introduced by Art. 17 SK the prohibition applies only to the actions of the husband. As for the wife, she has the right to initiate a divorce case at any time, including during her pregnancy and if the child does not reach the age of one year.

Divorce procedure established by Art. 18 SK. Divorce is placed under the control of the state and can only be carried out by the relevant state bodies: either by the registry office or by the court in cases directly provided for by the Code. One or another procedure for divorce is provided for in the IC, depending on certain circumstances and cannot be predetermined by the wishes of the parties. So, a marriage with a person recognized by the court as incompetent is terminated only at the registry office (clause 2 of article 19 of the UK). The other spouse cannot demand the dissolution of the marriage with the incapacitated spouse in court. The actual separation of the spouses, no matter how long it lasts, does not legally terminate the marriage.

As you know, the powers to dissolve a marriage were removed from the jurisdiction of the church and transferred to state bodies (registry offices and the court) by the Decree of the All-Russian Central Executive Committee and the Council of People's Commissars of the RSFSR dated December 19, 1917 "On the dissolution of marriage." This provision was in effect in the future, which follows from the need for state registration of marriage and state control over divorce.

From the content of Art. 18 SK it follows that the main procedure (procedure) for divorce is divorce in the registry office. The procedure for state registration of divorce in the registry office is regulated in detail by the Law on Acts of Civil Status (Articles 31-38). The registry office does not find out the reasons for the dissolution of the marriage, does not require proof of the impossibility of preserving the family, does not take measures to reconcile the spouses, that is, the divorce procedure is simplified and does not require a lot of effort and time for the spouses. Divorce is carried out in the registry office:with the mutual consent of the spouses who do not have common minor children(clause 1 of article 19 of the SK); at the request of one of the spouses in cases where the other spouse is recognized by the court as missing, incapacitated or sentenced for committing a crime to imprisonment for more than three years(clause 2 of article 19 of the SK).

The judicial order (procedure) for divorce is applied in the cases provided for in Art. 21-23 UK: if the spouses have common minor children; in the absence of the consent of one of the spouses to divorce;if one of the spouses, despite his lack of objections, evades the dissolution of the marriage in the registry office. However, it should be borne in mind that the court will refuse to accept the statement of claim for divorce if there are grounds to decide the issue of divorce in the registry office. The judicial procedure for divorce is subject to the requirements of civil procedural legislation on claim proceedings, where the rights and obligations of the parties involved in the case are defined in sufficient detail. It is designed to ensure not only state-legal regulation of relations related to the termination of marriage, but also to protect, if necessary, the interests of each of the spouses and their minor children.

In the event of a divorce in court, one of the spouses acts as a plaintiff, the other as a defendant. According to the general rule, a claim for divorce is brought by the spouse or his guardian to the court at the place of residence of the spouses, if they live together, and in case of separation - at the place of residence of the defendant's spouse (Art. 117 of the Code of Civil Procedure). A claim for divorce with a person whose place of residence is unknown may be brought at the option of the plaintiff, that is, at the last known place of residence of the defendant or at the location of his property, and in the case when the plaintiff is with minor children or travel to the place of residence of the defendant it is difficult for him for health reasons - at his place of residence (parts 1 and 10 of Art. 118 of the Code of Civil Procedure). By agreement between the spouses, a divorce case between them can be considered at the place of residence of any of them (Article 120 of the Code of Civil Procedure).

From the statement of claim for divorce, a state fee is levied in a one-time minimum wage (subparagraph 4 of paragraph 1 of article 4 of the Law on State Duty).

Directly the conditions and procedure for divorce on various grounds by the court are disclosed in Art. 21-24 SK.

The legislative regulation of divorce in foreign countries has its own specific features that differ from the requirements of the IC, however, in general, it indicates the existence of the practice of state control over divorce in all civilized countries. Taking into account the unconditional importance of this issue, the norms on the need for legislative regulation of divorce have been introduced even in the constitutions of some foreign states. For example, the Spanish Constitution (Art. 32) states that the causes and consequences of divorce must be regulated by law. In accordance with Art. 24 of the Japanese Constitution, divorce and other matters related to marriage and family should be regulated by law. According to Art. 36 of the Portuguese Constitution, the law must establish the conditions and procedure for the dissolution of a marriage (regardless of the form of the ceremony).

The need to regulate by law the grounds and procedure for divorce is provided for by the constitutions of a number of Eastern European states (Albania, Bulgaria, Romania, the Republic of Slovenia, the Republic of Croatia, the Republic of Moldova).

In the scientific literature on the legal regulation of divorce in foreign countries, it is noted that held in the 70s. the reforms of the legislation on divorce (England, France, Norway, Denmark, Finland, etc.) led to a serious transformation of this institution. The main and most pronounced trend of the reforms carried out is the rejection of the idea of ​​"divorce - a sanction or punishment for the guilty behavior of the spouse" and the transition to the concept of "divorce - a statement of failure, the collapse of a marriage." certain requirements of the law, since in justification of the breakdown of marriage, certain evidence must be provided. Separate grounds and procedure for divorce in some countries in comparison with the provisions of the family legislation of the Russian Federation will be considered in the subsequent paragraphs of this chapter.

Divorce in the registry office

As already noted, the main procedure (procedure) for divorce is divorce in the registry office. According to Art. 19 IC in the registry office, if there are appropriate grounds, marriages between spouses who have expressed mutual consent to divorce are dissolved, that is, at the request of both spouses, as well as at the request of only one of the spouses. Let's consider each of these cases in more detail.

Divorce in the registry office at the request of both spouses

Divorce in the registry office at the request of both spouses.According to item 1 cm. 19 SK, divorce in the registry office at the request of both spouses is carried out if there are two reasons: 1) the spouses have expressed mutual consent to divorce, 2) the spouses do not have common minor children.

The mutual consent of the spouses to divorce is expressed in their joint written application to the registry office (Articles 31, 33 of the Civil Status Act). The application form of the established form for divorce is available in the registry office. If one of the spouses is unable to appear at the registry office to submit a joint application for divorce (for example: due to a serious illness, military service, a long business trip, living in a remote area, etc.), then the will of the spouses drawn up in separate applications for divorce. The signature of the application of the absent spouse must be notarized in the manner prescribed by law (clause 3 of article 33 of the Civil Status Acts Law).

For divorce in the registry office, in addition to the mutual consent of the spouses, it is also necessary that they do not have common minor children. Otherwise, the marriage can only be dissolved in court. If one of the spouses has a minor child whose parent or adoptive parent is not the other spouse (for example, a child from a previous marriage or a child born out of wedlock), then there are no obstacles to divorce in the registry office. It should be borne in mind that children adopted by both spouses are equated to children by descent in legal relations (Article 137 of the UK), and therefore, if the spouses have a minor adopted child, they cannot dissolve the marriage at the registry office.

State registration of divorce is carried out by the registry office in the manner prescribed for the state registration of acts of civil status (clause 4 of article 19 of the SK). As follows from Art. 32 of the Civil Status Acts Act, state registration of divorce is carried out by the registry office at the place of residence of the spouses (one of them) or at the place of state registrationmarriage. State registration of divorce under the provisions of clause 1 of Art. 19 SK on the grounds (including the issuance of a divorce certificate) is possible only upon payment of the state duty in double the amount of the minimum wage (subparagraph 2 of paragraph 5 of article 4 and subparagraph 6 of paragraph 2 of article 6 of the Law on State Duty). The fee is paid by one or both spouses by agreement between them.

The registry office does not find out the reasons for the divorce, and reconciliation of the spouses is not its responsibility. However, in order to provide spouses with a time to consider the appropriateness of their decision, as well as in order to protect the interests of the spouse in the event of dishonest actions of the other spouse upon divorce, paragraph 3 of Art. 19 IC established that the very dissolution of marriage and the issuance of a divorce certificate to the spouses is carried out by the authority after a month from the date the spouses filed for divorce. The course of the specified period begins on the next day after the spouses submit an application for divorce to the registry office and expires on the corresponding day of the last month of the period. If this date falls on a non-working day, the next working day following it shall be considered the expiration date. The monthly period established by law for the registration of a divorce and the issuance of a divorce certificate can neither be reduced nor increased by the registry office. At the same time, if the spouses, for some reason, cannot appear at the registry office on the day appointed by them to formalize the divorce, then at their joint request the deadline for state registration of divorce can be postponed to another time.

At the state registration of divorce, at least one of the spouses must be present (clause 4 of article 33 of the Law on acts of civil status). Divorce through a representative is not allowed.

State registration of divorce consists in drawing up by the registry office a record of an act on divorce and issuing a divorce certificate to each of the persons who divorced (Articles 37-38 of the Civil Status Act). In passports or other documents proving the identity of those who have dissolved the marriage, a mark is made about the dissolution of the marriage. If the state registration of divorce was carried out in the absence of one of the spouses, then the mark on the dissolution of the marriage in his passport or other identity document is made by the registry office when issuing him a certificate of divorce.

The moment of termination of a marriage at its dissolution. Legal consequences of the termination of a marriage

Establishing the moment of termination of a marriage during its dissolution is of very important legal significance, since it is from this time that personal and property legal relations between spouses, arising from the date of state registration of marriage in the registry office, are terminated, with the exception of cases provided for by law. In Art. 25 SK the moment of termination of a marriage is determined taking into account the applicable procedure for dissolution of marriage (that is, in the registry office or in court).

If the marriage is dissolved in the registry office, then according to clause 1st. 25 SK it is considered terminated from the date of state registration of divorce in the civil registration book. The grounds for state registration of divorce in the registry office are: a joint statement by the spouses, a statement by one of the spouses, if the other spouse is recognized by the court as missing, incapacitated or sentenced to imprisonment for more than three years (Article 19 of the UK).

Upon dissolution of a marriage in court, it terminates with the day the court decision comes into legal force (clause 1 of article 25 of the SK). The decision of the court comes into legal force upon the expiration of the term for appeal and protest in cassation, if it has not been appealed and protested. A cassation appeal or protest can be filed within ten days after the court makes a final decision (Article 208 of the Code of Civil Procedure). In the event of a cassation appeal or appeal, the decision, if it has not been canceled, shall enter into legal force upon consideration of the case by a higher court.

The provisions of paragraph 1 of Art. 25 SK on the moment of termination of a marriage upon its dissolution in court are fundamentally new in family law, since earlier, in accordance with Art. 40 KBS marriage was considered terminated upon its dissolution both in the registry office and in court, only from the time (moment) of registration of the divorce in the civil registration book. Moreover, the KBS did not require divorced spouses to register a court decision on divorce within a certain period, they could apply to the registry office for this at any time, and until that moment the marriage was considered legally existing. The law also did not provide for the enforcement of court decisions on divorce. Established by Art. 345 Code of Civil Procedure, the three-year term for the enforcement of decisions in civil cases was not applied in cases of divorce. All this in practice introduced uncertainty in the relationship between spouses and gave rise to a number of problems. The establishment of clause 1 of Art. 25 of the SK of the new rule for determining the moment of termination of a marriage upon its dissolution in court has led to the elimination of uncertainty in the regulation of marriage and family relations.

In accordance with paragraph 3 of Art. 169 CK, clause 1 of Art. 25 SK, which establishes the moment of termination of a marriage upon its dissolution in court from the date of entry into force of the court decision, is applied upon dissolution of a marriage in court after May 1, 1996. In this regard, a marriage dissolved in court before May 1, 1996, is considered terminated from the date of state registration of divorce (that is, a court decision on divorce) in the civil registration book at the request of both spouses and one of them. State registration of divorce in this case can be carried out at any time, regardless of the period that has elapsed after the court made a decision on divorce, due to the fact that, as previously Art. 40 MOSC, and now the Law on Acts of Civil Status (Art. 35) does not establish the obligation of divorced spouses to register a divorce with the registry office within a strictly defined period.

In case of divorce in court after May 1, 1996, new rules for state registration of divorce are in force. According to paragraph 2 of Art. 25 SK, the court is obliged to send an extract from the decision on divorce to the registry office at the place of state registration of marriage. Moreover, this extract must be sent within three days from the date of entry into force of the court decision. It must contain the information necessary for registering a divorce in the registry office in the civil registration book (time of marriage registration, registration number, name of the body that registered the marriage, the number of common children under 18). State registration of divorce is carried out by the registry office at the place of state registration of marriage on the basis of an extract from the court decision on divorce or at the place of residence of the former spouses (any of them) on the basis of an extract from the court decision and statements of both and one of the spouses , or statements by the guardian of the incapacitated spouse. An application for state registration of divorce can be made both orally and in writing. The former spouses (each of them) or the guardian of the incapacitated spouse have the right in writing to authorize other persons to make an application for state registration of divorce (Article 35 of the Civil Status Act). It should be borne in mind that the state registration of divorce in in this case is only of a certifying nature and the law no longer links the moment of termination of the marriage with it.

Despite the fact that a marriage dissolved in court terminates from the date the court decision enters into legal force, the spouses (already former) are not entitled to enter into a "new marriage until they receive a divorce certificate from the registry office at the place of residence of any of them. For obtaining a certificate of divorce, it is necessary to submit an extract from the court decision and a receipt for payment of the amount of the state fee established by the court.The amount of the state fee for registering divorce by court decision and issuing a certificate is one-time the minimum wage for each of the spouses (subparagraph 2, p. 5 article 4 of the Law on State Duty).

The legal consequences of divorce consist in the termination for the future of personal and property legal relations that existed between the spouses during the marriage. In this case, some legal relations terminate immediately after the divorce, others can be preserved either at the request of the spouse (for example, preservation of the marital surname - Art. 32 CK; payment of compensation to the spouse for divorce on the initiative of the other spouse in accordance with the marriage contract - Art. 42 CK) or in the force of the direct establishment of the law. So, by virtue of the law (Article 90 of the SK), a needy disabled spouse retains the right to receive maintenance from his ex-spouse if he became disabled before the dissolution of the marriage or within a year from the date of the dissolution of the marriage. The preservation of the marital surname depends on the discretion of the spouse who adopted the surname of the other spouse at the time of marriage (Article 32 of the UK).

With the termination of the marriage, the legal regime of the spouses' property ceases to operate, that is, the regime of their common joint property, but on the condition that the spouses divided the property jointly acquired in marriage. If the spouses did not share common property, then after the divorce, it continues to remain in common with the relevant legal regime, since it was acquired during the marriage. Divorce by itself without division of property cannot transform the common joint property of the spouses into shared or separate property. A three-year limitation period applies to the requirements of divorced spouses for the division of common property (clause 7 of article 38 of the SK). The course of the three-year limitation period for these requirements begins from the day when the divorced spouse found out or should have found out about the violation of his right to common property (for example, the other spouse sells common property without his consent) (Article 9 of the SK; Article 200 of the Civil Code) ... In connection with the dissolution of marriage, the established Art. 35 SK presumption of the spouse's consent to the transaction for the disposal of the common property by the other spouse. For one of the divorced spouses to conclude a transaction for the disposal of common property, the explicit consent of the other owner of the property, that is, the divorced spouse, is required.

It is possible that after the dissolution of the marriage, the spouses live together and acquire some property. In this case, the property they acquire becomes the object of personal (private) property of each of the divorced spouses or their common shared property.

With the dissolution of marriage, the spouses also lose other rights provided for by other branches of law: the right to inherit by law after the death of the former spouse; the right to retirement benefits in connection with the loss of a spouse on the grounds established by law, etc.

The legal consequences of divorce should be distinguished from the legal consequences of invalidating a marriage. A marriage entered into in violation of the conditions established in the law, as well as a fictitious marriage (Article 27 of the SK) is recognized as invalid. Such a marriage does not give rise to legal consequences from the moment of its conclusion, with the exception of cases provided for in the law (all these exceptions apply to a bona fide spouse - Article 30 of the UK). Only a valid marriage is dissolved. Legal relations generated by a valid marriage are terminated for the future, and some of them continue to exist after the dissolution of the marriage.

There are differences in the procedure for invalidating a marriage and dissolving a marriage. A marriage can only be declared invalid in a judicial proceeding (Art. 27 of the UK). Dissolution of a marriage is carried out both in the registry office, if there are appropriate grounds, and in court (Article 18 of the SK). The circle of persons who have the right to go to court with a claim for divorce and invalidation does not coincide. The marriage is dissolved in court at the suit of one of the spouses, as well as at the request of the guardian of the incapacitated spouse (Article 16 of the SK). The circle of persons who can bring a claim to declare a marriage invalid is established by Art. 28 SK and depends on the grounds for filing such a requirement. These can be persons who have both a personal interest (spouse, parents of a minor spouse, persons whose rights have been violated by marriage), and a state interest (prosecutor, guardianship and trusteeship body).

A marriage is dissolved by the court both in the presence of mutual consent of the spouses with common minor children to dissolve the marriage (Article 23 of the SK), and in the absence of the consent of one of the spouses to the dissolution of the marriage, if it is established that it is impossible to keep the family (Article 24 of the SK) ... A marriage can be invalidated only on grounds expressly provided for by law (Article 27 of the UK), and even in the case when there are normal relations between the spouses in the family. In case of divorce in court, it is considered terminated from the date of entry into force of the court decision (Article 25 of the SK). And when a marriage is declared invalid, a court decision is given retroactive force and the marriage is considered invalid from the moment of its conclusion (clause 4 of article 27 of the SK). When entering into a new marriage, a person who was previously in an invalid marriage is not obliged to inform anyone about this, since the recognition of the marriage as invalid means its annulment. And the person who divorced the marriage, upon concluding a new marriage, informs the registry office whether he was previously married or not (Article 26 of the Law on Civil Status Acts).

Restoration of marriage in the event of the appearance of a spouse declared dead or recognized as missing

As noted earlier, one of the grounds for the termination of a marriage is the announcement in court of one of the spouses as deceased (Article 16 of the UK). Moreover, the termination of a marriage does not require any special registration. Recognition of one of the spouses in court as missing, in contrast to declaring him dead, does not entail the termination of the marriage. Recognition by the court of a spouse as missing can only serve as a basis for divorce in a simplified manner, that is, at the request of the other spouse in the registry office (Article 19 of the UK).

The declaration by the court of the spouse as deceased or recognition of him as missing is based, respectively, on the presumption (assumption) of the death of the spouse or on the statement of the fact that it is impossible to resolve the issue of his life or death. Therefore, the possibility of the appearance or finding of the place of stay of the spouse is not excluded. As you know, in the case of the appearance or discovery of the place of stay of a citizen recognized as missing or declared dead, the court cancels the decision on recognizing him as missing or declaring him dead (Articles 44, 46 of the Civil Code). Accordingly, the court's decision is the basis for canceling the record of the death of a citizen declared deceased in the register of civil status acts (Article 75 of the Civil Status Acts Law). In such cases, the question arises about the legal fate of the terminated marriage. It is decided according to the rules established in Art. 26 SK. According to this article, in the event of the appearance of the spouse, declared by the court as deceased or recognized by the court as missing, and the cancellation of the relevant court decisions marriage can be restored by the registry office only upon a joint application from the spouses. It follows that marriage is not restored automatically, but only if there is a mutual desire of the spouses to restore the family. However, based on the requirement of paragraph 2 of Art. 26 SK, a marriage cannot be restored even if the spouses' desire to restore it coincides, if the other spouse has entered into a new marriage. According to the previous legislation (Art. 42 of the Code of Border Protection), in the event of the appearance of a spouse who was declared dead by the court, the marriage was considered restored if the other spouse did not remarry, that is, in fact, automatically, regardless of the wishes of the spouses.

It should be borne in mind that the restoration of a marriage with a spouse recognized by the court as missing is possible if it was terminated in accordance with the procedure established by law, which must be confirmed by the relevant documents. Therefore, when canceling a court decision on recognizing one of the spouses as missing, the registry office, at the request of this spouse, must issue him a divorce certificate, if the marriage was terminated under paragraph 2 of Art. 19 SK on the grounds, that is, at the request of the other spouse.

To restore a marriage, therefore, the following grounds are necessary:

a ) the appearance of a spouse declared dead by the court or recognized as missing;
b) cancellation of the relevant court decisions (that is, recognizing the spouse as missing or declaring him dead);
v) joint application of the spouses on the restoration of marriage to the registry office;
G ) the other spouse did not remarry.

The restoration of marriage by the registry office has a retroactive effect. Therefore, a marriage is considered restored from the moment of its conclusion, and not from the moment of restoration, as a result of which the spouses are recognized as married from the moment of state registration of the marriage.

So we come to the most interesting in the matter of divorce. I mean, a divorce at the registry office may be preferable only for the spouses. In what respect. Let's say they have a chance to save their time and money, as well as keep communication with each other to a minimum. I, as a lawyer, do not take any part in this procedure, therefore it is not interesting to me.

But what I'm really interested in is the divorce in court. I am already directly involved in this procedure. This is what we are going to talk about today.

First of all, I would like to note that all those who could not fit into the narrow framework of the requirements set for divorce in the registry office file for divorce in court. But here, too, there are some nuances. It turns out, and perhaps now you will find out about this for the first time, there are cases in which the husband cannot file for divorce first.

See, the spouse has the right to apply to the court for divorce at any time. It is not limited by anything. It is a fact. But the spouse, who is also the husband, does not have the right to apply to the court for divorce without the consent of the wife in two cases:

  1. If, at the time of application, his spouse is pregnant, and
  2. If a child was born in the family, and he, at the time of filing an application to the court, is under 1 year old.

And that, everything is correct. The law does not allow the "villain" to abandon his wife, who is in a "difficult" situation. By the way, I knowingly put the villain in quotes. Situations in families are very different, and sometimes it is very difficult to determine which of the spouses is the “scoundrel”.

And, I think, it is clear that if the spouse agrees to the dissolution of the marriage, these restrictions do not apply to the husband, and the judge considers the case according to the general rules of civil proceedings.

Now let's summarize the grounds for filing a divorce petition in court.

  • The court shall dissolve the marriage in the case when the spouses have common minor children.
  • The court dissolves the marriage if one of the spouses objects to its dissolution.
  • If one of the spouses does not seem to refuse to dissolve the marriage, but at the same time, in every possible way prevents its dissolution in the registry office (for example, does not appear there or does not sign the application).

I will tell you about the procedure for filing an application in court, what documents you need to attach to it and the procedure for divorce in court itself in a separate article. I do not want to create a mess in your heads from the excess of new information. For now, I propose to continue the study of no less important issues, such as:

Can the court dissolve the marriage if one of the spouses objects?

The answer is maybe. There are several important points to be understood here. The court dissolves the marriage in the event that it is established that further joint life of the spouses is impossible, and the preservation of such a family is not advisable. Do not worry, even if the other spouse objected, the court will not oblige you to live with this person forcibly further.

However, the court has the right to take measures for the possible reconciliation of the spouses. For these purposes, he has the right to postpone the consideration of the divorce case, and provide the spouses with an additional period for reconciliation, up to 3 months. Yes, such a turn of events can drastically stretch the divorce proceedings. But there is also a positive side to this. In the event that, after the expiry of the conciliation period, one of the spouses continues to insist on divorce, the court is obliged to satisfy this requirement.

What does the court do if both spouses agree to divorce?

This is the most preferable situation for the court. If both spouses do not object to the dissolution of the marriage, the court will not even find out the circumstances that prompted them to file for divorce. The main thing is that these spouses do not have other disputes, for example, about the place of residence of their common children.

If no disputes arise between the spouses in the course of the court's consideration of the case, the court has the right to satisfy the demand for divorce already after 1 month from the date of filing the application for divorce.

By the way, about the disputes. I did not tell you what disputes can arise in the process of divorce proceedings, and what questions the court must find out before it makes its decision.

And there are actually several such questions, and all of them, from a certain angle, seem not so simple. I will list them with a few comments.

When considering a divorce case, the duties of the court include:

  • finding out with which parent their joint children will live after the divorce. Naturally, we are talking exclusively about underage children. The need to clarify this circumstance is associated, first of all, with the protection of the interests of children, who must be provided with adequate living space.
  • determination of which of the parents will pay child support, as well as the amount of these alimony. If the child remains to live with the mother, she has the right to collect alimony from her husband for her maintenance. This issue is also subject to clarification by the court. I will dwell on this point in more detail, but in one of the following articles. Don't miss out and subscribe to the newsletter of article releases on my blog.
  • find out whether there is a dispute between the spouses on the division of joint property, and if there is such a dispute, the court must divide it. As a rule, if there is a dispute about the division of property, such requirements are initially indicated in the statement of claim. Therefore, this will not come as a surprise to the court. Again, the division of property is too complex a topic not to single out a separate article for it. Wait soon.

Here, here, about all these circumstances, there is one important point. The spouses can avoid all these disputes, as well as facilitate the work of the court, if in advance, before the first court session, they prepare and sign among themselves:

  • an agreement on who of them the minor children will live with,
  • alimony agreement
  • agreement on the division of the spouses' common property.

I will also talk about these agreements in upcoming articles.

When a marriage dissolved by a court is considered terminated

The moment of termination of the marriage is not difficult to determine - this is the date of entry into force of the court decision. If you remember, the court decision comes into force after 30 days from the date of its issuance in its final form. But getting a court decision is not all. The fact is that the registration of marriages, divorces, and so on, is handled by the registry office. I have already spoken about this. So, a divorce recorded in court must also be registered with the registry office.

For this, both spouses must go to court after the entry into force of the decision, and receive extracts from the decision. Each of the spouses must submit these extracts to the registry office that registered the marriage, and in return receive a Divorce Certificate. Each spouse receives his own testimony.

Of course, the duties of the court include sending extracts from decisions to the registry office. But, in order to save your time, and to be guaranteed to receive your divorce certificate, I still recommend that you carry out this procedure yourself.

Otherwise, until you receive a certificate of dissolution of the old marriage, you will not be able to register a new one. I understand that for many couples this circumstance will not be decisive. But what if you are the one who divorces with the aim of creating a new seven? Who knows.

This is where I end. In the following articles, you will learn many interesting details about divorce in court. So don't miss out and subscribe to our email updates. The subscription link is just below the article.



We often hear that life resembles the notorious "zebra", or the transition from a dark stripe to a light one, and, unfortunately, vice versa. Even optimists, believing that everything is done for the better, agree that many trials await us in life. One of them, which firmly occupies the first places in terms of the strength of the stress effect on the body and occurs so often that it is constantly talked about at meetings of graduates, and at anniversaries, among toasts and congratulations, and even at gatherings of grandmothers at the entrance, and will go speech.

We will talk about divorce, we will focus in particular on the case when the dissolution of a marriage occurs in court.

First of all, we recall that, as in any situation, there are disadvantages in divorce, and, oddly enough, there are advantages, even if at the beginning, amid the feeling of the world crumbling nearby, it is not so easy to see them. A lot of advice and recommendations on the relevant topic is devoted to this, but we will tell you how, under the influence of emotions, not to miss any of the important moments and not give yourself the opportunity to regret for many years later: "If only I would ...".

When is it possible to get a divorce through the registry office?

Property disputes. The presence of mutual consent to divorce and the desire to jointly come to the registry office to dissolve the marriage. In other cases, the dissolution of marriage is carried out in court.

So, we take a deep breath, make ourselves comfortable (a cup of aromatic coffee with airy foam will be very useful), and proceed to analyze the situation. Suppose that keeping your marriage going will cause more negative consequences than dissolving it, and the best way out for you is to start a divorce proceedings. Do not be intimidated by the loud name, from the very beginning you will be presented with two options for resolving the issue. The first of them, the simplest and fastest in time and implementation of a divorce through the registry office. You and your spouse only need to pay the fee, submit an application and pick up the documents in a month. Everything is very simple. To check whether this is possible in your case, it is easy enough to answer "yes" to all the questions below:

  • you do not have common minor children;
  • You and your spouse agree to a divorce;
  • Both of you agree to come to the registry office to divorce (alas, situations of evasion are also not uncommon);
  • you have no property disputes.

Unfortunately, in case of disagreement between the spouses, the interests of each will have to be taken into account through the courts; Your spouse is not legally incompetent. If you answered “no” to at least one of the above questions, then we have no choice but to proceed with a divorce through the courts. The most important thing in this case is not to "break the wood" under the influence of emotions, but more or less calmly, as far as possible in such a situation, to prepare for divorce in court.

We go to court

The very first thing that needs to be done is to get the "judicial machine" to spin, that is, to submit an application.

Be sure to pay attention to whether it has been assigned a registration number. If this did not happen, then we are looking for reasons, among which the following are most common:

  • the court considered that the marriage could be dissolved at the registry office;
  • insufficient or incomplete package of documents,
  • inaccuracies in documents.
Draw up a claim in accordance with the list and samples of documents presented in court, contact the assistant judge for any unclear point or consult our specialists.

What to do after submitting documents?

So, we continue to filed, the registration number has been assigned, the divorce in court has begun. Of course, no one wants to "rummage through the dirty laundry," however, in some cases, the court may need grounds for admitting that the marriage can no longer exist. This can be a medical certificate of recognition of addiction (drug or alcohol) or evidence of the incapacity of a spouse. You may have to attach testimony from neighbors. Also do not forget that the respondent can (and will certainly do) the same thing.

If there are children?

Separately, we will consider a situation that has many nuances, the case when you have minor children whose relationship has been established (forgive the legal wording, but sometimes, if in doubt, the spouse files a claim to challenge paternity and a genetic examination is carried out on the basis of it). What are its features?

Firstly, if the former spouses do not have consent about the son or daughter on any issues, the divorce case in this case will be considered not by the magistrate court, but by the district one, since the rights of the child are affected;

Secondly, it is imperative to indicate with which of the parents the child will live after the divorce, as well as (if any) the wishes of one party on alimony payments and (or) disagreement with them of the other;

Thirdly, after the dissolution of the marriage in court, it will be impossible to raise a child together, despite the fact that the rights and obligations of the former spouses in relation to him remain.

Within the framework of a short article, we do not have the opportunity to consider all the features and nuances of divorce in court in the case of minor children and, especially, if the former spouses do not agree on related issues. In this case, the court has the right to request additional documents and (or) witness testimony, which it deems necessary. Since the issue is extremely serious, we recommend that you seek advice in advance from specialists who will draw your attention to the "pitfalls" of your case and help, for example, in preparing arguments in favor of why the child should stay with you. Again, be prepared for the fact that the former spouses (especially under the influence of grandparents) cannot come to an agreement with each other, and the court appoints repeated court hearings.

There is joint property

A separate issue that is the subject of long and not always censorship discussions between the parties, accusations of each other (which our lawyers will not hear in the courts!), Loud quarrels and painful clarifications of relations with the whole family, is the issue of dividing jointly acquired property. The main thing that in the GENERAL CASE should be remembered during the judicial division of property:

All property acquired in an officially registered marriage, except for personal property, is the subject of division in the event of divorce in court.

In a divorce, not only property is divided between the former spouses, but also obligations, that is, for example, a loan for a car purchased during marriage will be equally divided between the spouses, even if one of them did not actually use it;

There are various options for dealing with a mortgage-backed apartment. For example, you can renew the contract for one of the spouses with compensation for the second already paid amount, you can pay off the mortgage, sell the apartment and divide the amount, and, of course, you can just continue to make payments in accordance with the established shares.

Please be aware that there are many nuances and exceptions. For example, most are aware that property inherited while married is considered personal and cannot be shared. But there are also legislatively established standards that the results of intellectual property also belong to personal property, that is, for example, the court is unlikely to divide the royalties from a book or film that your spouse has published. What can be done here? We strongly recommend BEFORE making a list of the property for which you are ready to claim (by the way, it will probably have to be assessed as well).

If you fear that your former “half” is selling jointly acquired property in order to avoid its division, then you have the right to seize it until the execution of the court decision.

Conclusion

In any case, remember that undocumented emotions, no matter how righteous anger they may be triggered, are not evidence for the court. And constantly heard by the judges stories of the form: "I told him ... and he, so and so ... !!!" maybe they will be listened to, but they were definitely not taken into account in your favor. If possible, it is preferable to entrust the bringing of the arguments before the court to a lawyer.

As a summary, we note that, as a rule, divorce in court refers to such things that it is extremely undesirable to "let it go" and on which it is better not to save money. Of course, the law provides for a deadline for challenging a court decision, but it is much easier, more efficient and reliable to consult with a knowledgeable specialist in advance to prepare all the potentially necessary documents than to do it in a “firefighting” order. Alas, hopes for the "decency" of the opposite side often remain only hopes, and a decision made by the court that is not in your favor will be sure to be executed, regardless of whether we agree with it or not.

Grounds and procedure for dissolution of marriage

Dissolution of marriage - the onset of legal moments provided for by law, the termination of family legal relations. The Family Code of the Russian Federation is the legal act governing family relations.

The RF IC provides for two procedures for divorce: judicial and administrative.

In accordance with article 16 of the Family Code of the Russian Federation, there are grounds for divorce:

  • the death of one of the spouses or the declaration by the court of one of the spouses as deceased;
  • a statement of one of the spouses, a statement of the spouse's guardian, whom the court declared legally incompetent.

The administrative procedure for registering a divorce is carried out in the registry office. In the registry office, a marriage is dissolved in cases of mutual consent of the spouses, the absence of common minor children, at the request of one of the spouses, if the other spouse is recognized by the court as missing, incompetent, or sentenced to more than 3 years.

Divorce cases are considered in court in the following cases: the presence of common minor children, refusal to divorce one of the parties. Considering the case when one of the spouses does not agree to divorce, the court has the right to make a decision, refuse to satisfy the claim, and postpone the proceedings for up to 3 months. In court proceedings on divorce of spouses with common children, the court makes a decision without clarifying the motives.

Mutual consent of the spouses to divorce in the civil registry offices is made in writing. You can draw up one joint statement or 2 separate statements. A spouse who did not appear at the registry office to submit an application must notarize his signature on the application.

Legislatively established a period of 1 month, after which the state registration of divorce is made and a certificate is issued. During this month, the application can be withdrawn. If the application is not withdrawn, it is necessary to appear at the registry office with a passport, in which they will mark the divorce and issue a certificate.

The basis for divorce is also the desire of one of the spouses, if the court has declared the other missing, incapacitated, convicted. Recognition of a spouse as missing or incompetent occurs exclusively in court. If there is a court verdict on imprisonment for more than 3 years of one of the spouses, the other is given the right to dissolve the marriage under a simplified procedure.

Article 20 of the RF IC provides that all disputes related to the division of property, the maintenance of the children of a disabled spouse are considered in court.

Grounds for divorce in court:

  • the presence of common minor children;
  • refusal to divorce one of the spouses;
  • evading divorce

The court dissolves the union if it is established that living together is impossible. A statement of claim is submitted to the court. The applicant is the claimant. The husband does not have the right to file a claim in court without the consent of his wife during pregnancy and within a year after the birth of the child.

Divorce suit, drafting procedure. The claim must contain:

  • the name of the court or district of the magistrate to which the claim is filed;
  • name of the plaintiff, place of residence or representative;
  • name of the defendant, place of residence;
  • grounds for divorce;
  • requirements, circumstances, confirmation of circumstances;
  • reasons for the impossibility of divorce through the registry office;
  • list of attached documents.

Also, the application must indicate the following data: the place and date of marriage registration, the presence of children and their age, whether there are agreements on the maintenance of children, motives, information related to the case.

Documents required for the court:

  • marriage certificate (original);
  • birth certificates of children;
  • receipt of payment of state duty;
  • statement of claim;
  • residence certificate;
  • petitions, applications to the plaintiff, inventory of property.

The court must take measures to protect the rights and interests of minor children. There are responsibilities of parents to minor children. The agreements between the parents on the upbringing and maintenance of joint children are recorded in the court record. The protocol must be signed by the parties.

A characteristic feature of divorce cases is the reconciliation of spouses, the preservation of families with minor children.

If an agreement is not reached between the parents, the case from the magistrate is referred to a court of general jurisdiction. The court considers two main aspects: material and psychological.

Material determines the place of residence of children, the amount and procedure for the payment of alimony. Psychologically, it decides the question with whom the child should remain after the divorce - with the father or with the mother. Very often, children become the object of parents' speculation in order to gain advantages in the distribution of material wealth.

Stages of divorce proceedings

Article 39 of the Family Code provides for the right by which a court may derogate from the rule of equality of shares in the interests of dependents. At the stage of preparing the case for trial, the judge determines the circle of persons participating in the case; clarifies claims, objections; establishes facts relevant to the case; requires the necessary documents.

Divorce cases are carried out by the court no earlier than 1 month from the date of filing the application. Divorce proceedings are considered in open sessions. The Civil Code provides for the possibility of examining a case behind closed doors in order to preserve information of an intimate nature.

Children who have reached the age of 10 have the right to express their opinion regarding their interests, it can be heard during the trial. The child's opinion must be taken into account if it does not contradict his interests.

When dividing property, the main thing is to determine which property is to be divided. It is important to define the legal regime for the property of the spouses. There are two modes: legal and contractual. Under the contractual regime, the spouses entered into a marriage contract, in which the property is divided into separate and shared parts.

In a marriage contract, the right to maintain an incapacitated spouse, wife during pregnancy, maternity leave, a needy spouse cannot be limited if he is caring for a child with a disabled person from childhood of group 1. A marriage contract cannot provide for conditions that contradict family law and infringe on the rights of one of the parties.

If the contract was not concluded, the property is divided according to the general rule jointly acquired during the union. Jointly acquired property can be divided into personal and common. Joint property includes movable and immovable property; income of husband and wife from labor, business, intellectual activity; pensions, benefits, payments that have no special purpose. Personal belongings are not shared. Luxury items, if not donated, will need to be shared.

If an item or thing cannot be divided, consider the following options:

  • transfer the object to one of the spouses, and the other pays compensation;
  • sell property, divide the funds received;
  • allocate shares, allow everyone to use their part.

In case of divorce, when making out questions on the division of property, the statute of limitations should be taken into account. The law establishes a period of 3 years from the date of the official divorce.

State registration of divorce

Article 25 of the RF IC provides that a marriage is considered dissolved from the moment of registration in the civil registration book. Divorced marriages are terminated from the moment the court decision enters into legal force. The court is obliged to send an extract from the court decision to the registry office at the place of registration of the marriage within 3 days. Spouses cannot enter into another marriage prior to receiving.

Divorce is a legal act that terminates the rights and obligations between spouses. The Family Code does not address the reasons for divorce, but provides for the grounds and procedure for terminating the marriage when one of the parties has objections.

Your decision to divorce is final and irrevocable? Be prepared for a difficult and sometimes lengthy divorce process. Especially if there are circumstances in your family, in the presence of which divorce is carried out in court.

In what cases are divorced in court?

The law provides for several conditions:

1. The presence of common minor children

Even if both spouses want to divorce, the court is obliged to protect the rights of their minor children. In court, the following issues are resolved:

  • with whom of the spouses the children will live after the divorce;
  • who and how will bring up children;
  • who will pay child support.

Did the parents themselves come to a consensus on this score? Then they can submit their agreement to the court. If the children's rights are not violated, the court will approve the parents' agreement by its decision.

2. Lack of consent to divorce one of the spouses

It is not always possible for spouses to achieve solidarity if family relations are on the verge of divorce. If, in the process of considering the case and clarifying the motives and reasons for the divorce, the court comes to the conclusion that the preservation of the marriage is impossible, it makes a decision on the divorce. That is, it satisfies the desire of the initiator of the divorce despite the disagreement of the opposite side.

If, in the process of divorce, it becomes obvious that the family can be saved due to the categorical disagreement with the divorce of one of the parties, the court may set a time limit for reconciliation of the spouses. After the end of this period, a final decision is made. ...

3. Avoidance of divorce proceedings

Often a situation arises when the spouse does not express categorical disagreement with the divorce, but does not allow to bring the matter to its logical conclusion. He avoids visiting the registry office, filing an application and carrying out the procedure for divorce, does not submit a petition to consider the case in his absence, etc. In this case, the second spouse has no choice but to file a divorce through the court. This provision is provided for in Art. 21 of the RF IC.

Divorce through the courts. Worldwide or regional?

In the process, a logical question arises: in which case is the divorce carried out in the magistrate court, and in which case - in the district?

As a rule, the divorce is carried out by the magistrate. And only in the event of disputes between the spouses about the division of joint property, about the determination of the place of residence of the children, about the conditions of keeping and raising children, the divorce proceedings are carried out in the district court.

As is clear from the above, it is much easier and more efficient to file a divorce in the magistrates' court. Divorce in a district court is more difficult, lengthy and costly - both procedurally and emotionally. Indeed, in court, you will have to resolve important property and personal disputes, disclose the intimate aspects of the relationship between spouses. Therefore, it is worth resorting to divorce through a district court only in exceptional cases - if it is impossible to resolve a conflict between spouses about children or property.

How to get a divorce through the magistrates' court?

First of all, it is necessary to resolve all controversial issues before going to court. The mutual consent of the spouses to divorce and the absence of disputes about children or property is the basis for divorce in the magistrates' court.

For example, in order to file a divorce through the magistrate's court with children, it is necessary to draw up an agreement that will define the essential provisions:

  • with whom of the spouses the minor children (or each of the children) will live after the divorce;
  • who of the spouses will be entrusted with alimony obligations, in what amounts alimony will be collected for children, and in some cases for the spouse who has the right to maintenance;
  • the procedure for the exercise of parental rights by the spouse who will live separately from the children.

Such an agreement is one of the mandatory documents for a divorce through a magistrate's court with children.

Divorce procedure through the court. Stages. Rules. Instruction.

Let us briefly describe how the divorce proceeds in the magistrates' court. The process takes place strictly in accordance with procedural legislation and consists of several main stages:

  1. The plaintiff submits;
  2. The court accepts the application and sets the date for the hearing;
  3. Further, the consideration takes the form of a court session;
  4. The court makes a decision;
  5. The judgment comes into force;
  6. The parties receive a copy of the court decision;
  7. The parties are turning.

Let's consider each of these stages in more detail.

Preparation of a statement of claim and documents for divorce

The well-known concept of "file for divorce" means the preparation and submission to the court of a correctly drawn up statement of claim for divorce and a complete package of necessary documents.

A divorce application must comply with the established form and contain all the necessary information:

  • the name of the magistrate or district court;
  • information about the plaintiff and the defendant: full name, place of registration and actual residence;
  • date and place of marriage registration;
  • information about the presence of common minor children;

Learn more about the requirements to the content of the statement of claim, the list of required documents, you can familiarize yourself with the sample and download the form in the article ““.

How do I file an application for divorce?

An application for divorce must be filed with the court at the place of residence of the defendant, except in cases where it is allowed to file an application at the place of residence of the plaintiff (if there are minor children or due to health conditions).

Acceptance of the statement of claim by the court

If the statement of claim and documents are accepted, the court sets a date preliminary meeting(at which the court will determine the readiness of the case materials for consideration, as well as make attempts to reconcile the parties and invite them to conclude an amicable agreement) and main meeting(which will consider the circumstances of the case and make a decision). The date of the first court session is set no earlier than one month after the submission of the application, about which the parties are notified by summons.

Consideration of a case at a court session

During the formal part of the court session, the attendance of the parties is checked, the rights and obligations are explained, and the petitions declared by the parties are considered. Further, the court gives the floor to the parties: it hears the claims of the plaintiff, consent or disagreement with these requirements of the defendant, considers the evidence of the parties. The last part of the court session is the debate - alternate statements of the parties regarding the claims and appeals to the court for their satisfaction.

What questions does the judge ask?

The upcoming court hearings may cause concern and anxiety, especially for those who have never participated in them. But it is important to understand that the divorce process is a formal procedure that does not imply "bringing to light" deeply personal details of married life, and is not at all like themed scenes from TV programs and feature films.

Nevertheless, the court will ask the spouses questions, since the data contained in the documents are not enough to comprehensively study the case.

What questions can be asked at the hearing?

  1. What are the reasons for divorce?

Perhaps this is the very first and predictable question. Depending on what circumstances induce the spouses to dissolve the marriage, the court will draw conclusions about the possibility or impossibility of maintaining the family.

If the intention to divorce is not sufficiently substantiated (quarrels, disagreements, fading of feelings, burden of responsibility), the court may appoint a 1-3-month period for the spouses (clause 2 of article 22 of the RF IC). If the court finds that the reasons for the divorce are sufficiently justified (separation, betrayal, domestic violence), and reconciliation is impossible, the marriage will be terminated immediately, without setting a conciliatory period (clause 1 of article 22 of the RF IC).

  1. Does the second spouse agree or disagree with the dissolution of the marriage?

The fact that one of the spouses had to go to court is already indirect evidence that he did not receive the consent of the second spouse to divorce. But not always. It happens that spouses cannot divorce in a simplified manner (through the registry office) due to the presence of children, although both want it.

One way or another, the court will find out to what extent the intention to dissolve the marriage is agreed. If so, the marriage will be terminated without delay. , the court may postpone the final decision and give the couple a chance to make up.

  1. Where will the children live?

It is advisable for the spouses to decide before this issue is raised at the hearing. In this case, the decision should be based on the interests of the children, and not on parental personal desires and motives. Otherwise, the court will have to decide this issue (clause 2 of article 24 of the RF IC), and then additional questions will be raised:

  • To which parent is the child more attached?
  • Which parent has a better home for living with children?
  • Which parent has more free time and opportunities to raise children?
  • Whose income is higher?
  • What kind of life do father and mother lead?
  • What is the desire of the child himself (if he is already 10 years old)?

As practice shows, the father takes an equal part in the upbringing of children and pays alimony for their maintenance on a monthly basis.

  1. What will be the amount and procedure for paying child support?

The issue of the payment of alimony logically follows from the issue of the place of residence of children (clause 2 of article 24 of the RF IC). Since children live with one of the parents, the other parent must take an equal part in their life - in the form of monthly alimony payments.

Parents can agree on the amount and method of paying alimony themselves (in cash on receipt, postal, bank transfer). It is good if the agreements are set out in writing (in the form of an alimony agreement) and certified by a notary. If there is no agreement and a dispute arises, the issue of supporting the children is referred to the court.

  1. How will the spouses' joint property be divided?

It is not necessary to raise the issue of the division of jointly acquired property in the divorce proceedings - this can be done after the divorce. The limitation period is three years from the moment one of the spouses violates the property rights of the second spouse.

If the spouses do not intend to divide the property at the same time as the divorce, the question asked can be answered as follows: there are no disputes or mutual claims regarding the division of material assets.

If there are disputes, a fair division will have to be carried out in court. You will need documents confirming the ownership of all property acquired in marriage: contracts, checks, receipts, bank statements. The court will make a decision based on the results of the section.

With the help of a lawyer, prepare simple, competent answers to these and, possibly, related questions. Do not start talking until you are given the floor, do not interrupt the court and other participants in the process. Be polite and restrained, exclude emotionally colored, expressive, abusive expressions from your speech. Remain calm, be confident in your chosen position.

Need legal advice on an upcoming court hearing? Get it for free - write to the chat or call the hotline.

Divorce judgment

Having considered the materials of the case and having listened to the demands of the parties, the court retires to the conference room to make a decision. The operative part of the court decision on divorce is announced to the parties, and the document with the full text (with an introductory, descriptive, motivated and operative part) is handed over five days after the operative part is announced.

If there was no agreement between the spouses on children or property, a court decision may determine the conditions for the further place of residence of the children, alimony obligations in relation to children and obligations to support the spouse, the conditions for the division of joint property.

Entry of a court decision into legal force

The judgment comes into legal force 30 days after its adoption, if no appeal is received from the parties.

If one of the parties submits an appeal against the court decision, it comes into force after the consideration of the complaint, if it has not been canceled. If in the appellate instance the court decision is canceled, changed or a new decision is made, it enters into legal force immediately.

The moment of termination of the marriage relationship is the moment of entry into force of the corresponding court decision.

Obtaining a court decision by the parties

After the end of the 30-day appeal period, each of the parties is issued a copy of the court decision with a note of entry into force. In some cases, the court issues only an extract from the court decision, valid only for submission to the registry office.

Divorce registration at the registry office

The fact of divorce by the court is subject to state registration with the registry office.

A copy of the court decision on divorce or an extract from it is presented by the parties to the registry office to register the divorce and obtain a divorce certificate. It can take about a month from the moment the court's decision is filed until the receipt of the divorce certificate.

Failure to appear in court

Receiving a subpoena, many give vent to emotions and decide not to appear at the hearing.

The reasons for not appearing in court in case of divorce may be disagreement with the divorce, unwillingness to meet with the spouse, argue and sort things out, reveal the intimate aspects of family life, as well as deliberately delaying and complicating the trial.

What is fraught with failure to appear in court for divorce?

According to the law, the court is obliged to notify the parties about the place and time of the court session, and the parties are obliged to notify the court of the reasons for failure to appear, providing evidence that the reasons are valid. Based on this, if one of the parties fails to appear at the hearing, the court finds out:

  • whether the preliminary notification of the party about the place and time of the court session was carried out;
  • in case of proper notification of the court about his failure to appear - is the reason for the absence of the party valid.

Depending on these circumstances, the court makes a decision on the possibility or impossibility of holding a court session in the absence of one of the parties.

So, if one of the parties, duly notified of the time and place of the consideration of the case, did not appear in court for a good reason (illness, work trip, family circumstances), the consideration of the case is postponed. A good reason for failure to appear must be notified to the court with the submission of supporting documents.

Three times failure to appear at the hearing is the basis for considering the case in the absence of a party (defendant) and making a court decision - satisfying the claims of the other party (plaintiff). The absence of a valid reason or failure to report it will be the reason for the prohibition on appealing the court decision adopted at the hearing in the absence of the defendant (Article 167 of the Code of Civil Procedure of the Russian Federation).

In the event that none of the parties appeared at the hearing, the divorce case is closed.

If you do not want to personally participate in the divorce proceedings and attend unpleasant court hearings, there are more reasonable options for solving the problem than failure to appear in court. For example, you can assign the responsibility to act on your behalf in court to a representative - a trustee or a lawyer. Or submit a petition to the court to consider the case without your participation.

How long does a divorce last?

The duration of the divorce procedure is on average from 2 to 6 months and depends on factors such as mutual consent or disagreement of the parties, the presence of common children and disputes about them, the presence of joint property and the need to share it. There are other factors that affect the time frame for the trial.

How much does a divorce through court cost in 2019?

The financial side of divorce, or rather the cost of state fees and additional legal and notary services, is undoubtedly important. You just need to know how much it costs to get a divorce through the courts and be prepared to bear certain monetary costs.

The total cost of a divorce through a court consists of:

  1. state fee for filing a statement of claim for divorce... In accordance with article 333.19. Tax Code of the Russian Federation, in 2019 the size of the state duty is 600 rubles;
  2. state duty for filing a statement of claim of a property nature. This amount is calculated using a special formula based on the cost of the claim - claims of the plaintiff collected from the defendant (for example, the value of a share of property or the amount of alimony);
  3. notary services. Payment is due for notarization of the written agreement of the spouses (for example, on the division of property or determination of the place of residence of the children), as well as the notary's service for the preparation of these documents;
  4. legal support of the divorce proceedings. Drawing up a statement of claim in accordance with the law and the specifics of a particular situation, preparing a package of documents, filing a claim in court, participating in court hearings, preparing and submitting applications and petitions, appealing a court decision, etc. The cost of legal services depends on the level of qualifications of the lawyer, the volume and duration of his work, and the prices for services. Among law firms, the “turnkey divorce” service is widespread, which implies a comprehensive management of a divorce case with payment for a full range of services.