How to file a divorce through a court without the presence of a spouse: the necessary documents and court practice for such a dissolution of marriage. Divorce without the consent of the spouse

05.09.2019

The concept of divorce is used if the family relationship has come to an end and the spouses have decided to terminate it. With a mutually accepted decision, the divorce goes without any problems. The situation is more complicated if one of the spouses files for divorce, and the other actively prevents him. According to statistics, in most cases, it is men who initiate the dissolution of marriage. The question arises, how to divorce without the consent of the wife, and how is this process regulated at the legislative level?

Legal regulation

Marriage relations are subject to termination if a divorce petition is filed by both spouses or one of them.

Very often, with the sole decision to divorce one spouse, the other may object to the divorce. However, even without reaching an agreement, the spouses can be divorced. Exceptional cases include situations where the spouse decides to file for divorce without the consent of the wife.

The law provides for restrictions when a spouse cannot dissolve a marriage without first obtaining the spouse's consent.

These restrictions include:

spouse's pregnancy.
If the family has a child who has not reached the age of one year (the restriction also applies if a still child was born in the family).

These restrictions are explained quite simply from a life point of view: during the pregnancy of a spouse or after the birth of a child, most married couples have quarrels from scratch related to the lifestyle of the spouses. After a certain time, life enters into a rut, and the spouses forget about the divorce. By establishing these restrictions, the legislator tries to preserve family ties.

An exception is divorce without the consent of the wife in the first year of the child's life, if the question arises of deprivation of her parental rights.

Divorce procedure

According to general rules, divorce is possible by contacting the registry office or the court.
When divorcing through the registry office, one condition must be met: the desire to terminate the marriage should be mutual, i.e. the consent of the spouse is required.

Exceptional cases include:

Disability of the spouse.
The wife is missing.
The spouse has a criminal record of more than three years.

In other cases, divorce through the registry office will not work without the consent of the spouse. In this case, you must use the second option and apply to the court.

We act through the court

Dissolution of a marriage in court has certain complicating circumstances besides the disagreement of the spouse. Such circumstances include, for example:

The presence of children under the age of majority.
Dispute over the determination of the residence of children after divorce.
There is a need to resolve the dispute regarding the division of property (movable or immovable).

Divorce documents in court:

Statement of claim. Served in duplicate. There are no special requirements for filing a divorce, so any sample of a claim of this nature will do. The main thing is to concisely and in detail state the essence of the application, indicating the exact details of the defendant and the plaintiff.
Attachments to the claim. These applications include a certificate of marriage, birth of children, income statement, job description, etc. The number of applications and their significance will depend on the circumstances of the case.
Check for payment of the duty.
Power of attorney. Required if the interests of the plaintiff are represented by a trustee.

The application is usually filed at the location of the defendant. The dispute is considered either by the magistrate's court, or, in the cases specified in the law, the divorce proceedings are considered in the district court.
You need to be prepared for the fact that if the spouse does not agree with the divorce, then she may begin to "drag out" the process. For example, not to appear at the court session, to look for reasons for its postponement. If the court considers that the delay in the process is deliberate, the decision will be made in her absence. It is possible that the spouse wants to appeal the decision. Then the divorce process may drag on even more.

When the divorce process comes to its logical conclusion, the parties are issued a decision. The spouse who has received this document in his hands will only have to contact the registry office, which will issue a divorce certificate.

How to file for divorce if one of the spouses is absent or does not agree with the divorce proceedings? The answer to this question can be found in the presented material.

Important! If you yourself are examining your divorce case, then you should remember that:

Each case is unique and individual.
Understanding the basics of the law is helpful, but does not guarantee the achievement of the result
The possibility of a positive outcome depends on many factors.

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Conditions for unilateral dissolution of marriage

The unconditional right to decide on the termination of family relations belongs to each of the spouses. The procedure and terms for the implementation of this right will depend on various circumstances, including the opinion of the second partner about the divorce, the presence of children in the family, and other legally significant factors.

Termination of marital relations unilaterally is characterized by the following features:

to initiate this divorce procedure, the opinion and consent of the second spouse does not have legal significance, although it may affect the term and procedure for action;
only one citizen draws up an application to the registry office or to the judicial authority;
unilateral options for terminating a marriage through a registry office are directly indicated in the law, expanding this list at the will of the parties is not allowed.

It should be understood that the second partner will be notified of the start of the divorce procedure, unless such notification is impossible for objective reasons (for example, the second spouse is declared dead).

Divorce procedure

The legislation allows the termination of a marriage unilaterally both through the registry office and in the judiciary. If the second spouse does not object to the decision to divorce, but for valid reasons cannot ensure his presence, he can draw up an application to the registry office and certify his signature in a notary office.

To file a claim with the court, the presence of a second partner is not required, documents are accepted from only one party. At the same time, at the stage of the trial, the defendant will be able to express his attitude to the claim by filing an objection, or ignore participation in the process.

Let us consider the features of the procedure for terminating marriage relations with a one-sided option for filing documents with the registry office and the court.

How to get a divorce through the registry office?

The legislation provides for the possibility of divorce through the registry office only in cases where both partners agree to this option of the divorce process, while they do not have common minor children. If these conditions are met, but one of the parties for some reason cannot be present at the appointed time, the process of divorce unilaterally will be carried out in the presence of the second spouse at his request.

The absent partner must provide a certified written statement from a notary public expressing their consent to the divorce. It is also allowed to issue a power of attorney for your representative to submit the required documents.

How to File a Divorce Lawsuit?

The termination of a marriage is considered unilaterally in a judicial authority if:

spouses have children under the age of 18;
one of the parties is against divorce;
one spouse applies for the termination of marriage without informing the other.

How to get a divorce if one of the spouses actively objects to such a decision? Divorce proceedings begin after filing a divorce claim. It has no legal significance what reason for the divorce is indicated in the application - according to the law, a sufficient reason is the decision of one spouse to terminate the marriage relationship.

Note! You can file a divorce if there are no children, and the husband does not agree and is registered in another city, by filing a statement of claim at the place of residence of the defendant (if you have no good reason for filing a claim at your place of location - living with minor children and a serious illness ).

How to file for and get divorced unilaterally through the court? After accepting all the necessary documents in the case, within a month, the court is obliged to complete the consideration of the case. The defendant will receive notifications from the judicial authorities about the time and date of the scheduled hearing.

Often there are situations when it is not possible to inform the defendant about the hearing due to the absence of the latter at the place of registration or address of residence. Then the judge can consider the statement of claim without his presence in the process. Upon completion of the consideration of the case, a copy of the decision is sent to the defendant within five days.

The defendant has the right to challenge this decision, if it provides the court with evidence that the reasons for failure to appear, in this case, the consideration of the divorce case may continue according to the general rules of court proceedings.

The vast majority of divorce claims pending before the courts are satisfied if at least one of the spouses insists on the divorce. If necessary, the judge can give the parties time for reconciliation, the duration of such a procedure is from one to three months. If this did not change the decision of the spouses, then the judicial procedure for divorce will be brought to its logical conclusion.

Divorce without the consent of one of the spouses - when the divorce proceedings cannot be carried out

The prohibition on unilateral divorce initiated by the spouse, in the absence of an agreement with the wife, applies in cases where:

a certificate from the antenatal clinic confirms the spouse's pregnancy;
have a newborn baby under one year old.

Such restrictions will be valid even if it is established that the husband is not the biological father of the child. If, under these circumstances, an application for divorce is received from the spouse, it is subject to consideration according to the general rules of family law.

How to get a divorce without your husband's consent?

If the spouse cannot be present, but agrees to dissolve the marriage, his representative is enough - the process will take place in the registry office according to general rules within a month. How to divorce and file for divorce not only without the presence of the husband, but also without his consent?

The registry office can be divorced unilaterally at the request of the wife in the following exceptional cases:

if the husband is declared legally incompetent in court;
the spouse is missing;
the husband was sentenced to more than 3 years for a crime.

In the presence of at least one of the above circumstances, the marriage relationship is terminated after the second party has submitted a written application to the registry office. In such situations, divorce is possible, even if you have common minor children. When submitting an application, you must attach a court decision confirming the specified exceptional circumstance.

Note! The registry office also registers the termination of a marriage due to the death of a spouse or the recognition by the court of one of the parties as deceased.

Can a wife divorce without her husband's consent unless there are exceptional circumstances? In this case, it will not work to annul the marriage in the registry office, you must contact the judicial authority.

The absence of the defendant at the hearings may delay the process, however, even in this case, the plaintiff will receive a judicial act in his hands after the court notifies the second spouse of the date and time of the hearing.

The defendant may not come to court, since he will not be notified of this process due to the fact that his place of residence is unknown. This may affect the timing of the consideration of the case, but the court has the right to issue a decision in absentia.

Is it possible to divorce without the consent of the wife?

Situations where divorce is allowed without the consent of the wife coincide with the above circumstances:

the spouse is officially recognized as missing;
the wife was declared legally incompetent;
the spouse was convicted of a crime for a term of at least 3 years.

If the above conditions are absent, if the wife refuses, the termination of the marriage relationship is made through the judicial authorities forcibly. Additional nuances may arise in situations where there are minor children in the family, there are disagreements over the division of property, a dispute over a child, etc.

Divorce documents in court

The main package of documents that must be collected for divorce in court unilaterally is determined in accordance with the rules of Art. 132 of the Code of Civil Procedure of the Russian Federation and includes:

statement of claim (original document and a copy to be sent to the defendant);
receipt of payment of state duty;
power of attorney or other document confirming the powers of the plaintiff's representative (in the case when the application is submitted by a representative, for example, a lawyer);
an extract from the house register, which confirms the place of registration of the defendant (this is necessary to determine the jurisdiction of the dispute);
marriage certificate (original);
a copy of the child's birth certificate.

If in the divorce proceedings, issues of alimony payment are resolved, the plaintiff must submit a certificate of the spouse's income in the form of 2-NDFL, including the amount of wages. In the event of a division of property, appropriate documents on the ownership of the subject of the dispute may be required (certificate of title, extract of the USRN, sales and purchase agreements, etc.). If the question is being decided with whom the minor children will live in the future, it is necessary to provide an act on the examination of the spouse's housing conditions or a description from the place of work.

Divorce petition unilaterally

The unilateral divorce application form in the registry office will be provided upon contacting this authority. The sample will allow you to establish in advance the amount of necessary information to be filled out.

The statement of claim, which will be sent to the court, must contain the following points:

the name of the judicial authority;
personal data of the parties and their contact information;
information about the concluded marriage, whether citizens have children;
grounds for going to court;
claims, including the establishment of alimony obligations, the determination of the child's place of residence or the division of common property.

Where should the documents be submitted

In case of termination of marriage without notifying the spouse, the application is submitted to the registry office at the place of residence of the applicant. The second spouse will be notified of the claim, but his objection will not have legal effect.

Documents for the judicial procedure are sent to the court at the location of the defendant, except for cases when the plaintiff is raising a minor child or a medical certificate confirms the serious nature of the disease.

How much does it cost to dissolve a marriage

In case of divorce unilaterally, the applicant will have to pay the state fee:

when contacting a registry office - 650 rubles;
when applying to the judicial authority - 600 rubles.

The payment document confirming the payment of the state duty must be attached as an original to the application.

When preparing documents for divorce unilaterally, it is extremely important to comply with all legal requirements. We recommend that you seek help from our qualified lawyers who will advise on any issues of interest. To do this, call the numbers indicated on our website or leave a request in the feedback form.

ATTENTION! Due to the latest changes in legislation, the information in the article could be out of date! Our lawyer will advise you free of charge - write in the form below.

Questions to lawyers

How to divorce unilaterally and what documents are needed for this?

Is it possible to apply for divorce unilaterally? What documents are needed for this? There are minor children.

Lawyers' answers

Gudkova Galina

You can apply to the magistrate's court at your place of residence. It is necessary to write a statement of claim, pay a state duty of 600 rubles. It is necessary to authenticate the marriage certificate.

Denis Kuznetsov

You need to write a claim, pay a state fee, make copies of certificates of the conclusion of a fight and the birth of children and file a lawsuit. In the world, if there is no dispute about children, or in the district, if there is a dispute or divide up property worth more than 50,000 rubles.

RF IC Article 22.

Dissolution of marriage in court in the absence of the consent of one of the spouses to divorce

Bykov Dmitry

In addition to what my colleague said, I would suggest taking into account the norms of the Family Code of the Russian Federation.

Article 21 of the RF IC. Divorce in court

1. Dissolution of a marriage shall be carried out in a judicial proceeding if the spouses have common minor children, except for the cases provided for by paragraph 2 of Article 19 of this Code, or in the absence of the consent of one of the spouses to dissolve the marriage.

2. Dissolution of a marriage is carried out in a judicial proceeding also in cases where one of the spouses, despite having no objections, evades the dissolution of the marriage in the civil registry office, including refusing to submit an application. (as amended by Federal Law of 30.12.2015 N 457-FZ)

Article 22. Dissolution of marriage in court in the absence of consent of one of the spouses to divorce

1. Dissolution of a marriage in court shall be carried out if the court has established that the further life of the spouses and the preservation of the family are impossible.

2. When considering a divorce case in the absence of the consent of one of the spouses to divorce, the court has the right to take measures to reconcile the spouses and has the right to postpone the proceedings, setting the spouses a period for reconciliation within three months. Dissolution of a marriage is carried out if measures to reconcile the spouses proved to be ineffective and the spouses (one of them) insist on the dissolution of the marriage.

Mikhailov Valery Vladimirovich

Graduated from the Faculty of Law of St. Petersburg State University in 1998 with a degree in Jurisprudence. Professional legal experience for 20 years, including in leadership positions. He specializes in issues in the field of housing, civil, contractual, corporate law.

It is possible to obtain a divorce without the presence or consent of the wife. The husband's task is to correctly determine where exactly the termination of the relationship will take place. The form of the submitted document and the procedure for its further consideration depend on this.

Where to file for divorce: registry office or court?

The official dissolution of marriage is carried out in the registry office or in court. To understand where to go, you should consider the possible circumstances under which the termination of the relationship occurs.

Circumstances	REGISTRY OFFICE	Magistrate's Court	District, city court
Spouse disagrees	-	-	Yes
	-	-	-
The spouse is absent, since she was declared legally incompetent, missing or was sentenced to more than 3 years	Yes, even if there are common children under the age of 18	-	-
The spouse agrees, while: There are no children, the property is not divided	Yes	-	-
There are minor children over 1 year old, the issue of their place of residence has been resolved	-	Yes, subject to the provision of a children's agreement certified by a notary	-
There are minor children over 1 year old, there is a dispute about the place of residence of the children	-	-	Yes
The couple have children under 1 year old, the spouse is pregnant	-	Yes, if the price of the claim in a property dispute is less than 50 thousand rubles. and all questions about children are resolved	Yes, if the price of the claim in a property dispute is more than 50 thousand rubles. or the issue of the place of residence of the children has not been resolved
The cost of jointly acquired property is not more than 50 thousand rubles.	-	Yes, if the issue of the children's place of residence is resolved	-
The cost of jointly acquired property is over 50 thousand rubles.	-	-	Yes

: Form No. 8 or No. 9, and to obtain a certificate after the trial - Form No. 10.

The court accepts statements of claim, which indicate the reasons for the breakdown. At the same time, a number of related issues can be considered: about the place of residence of children, the procedure for communicating with them, the payment of alimony, the division of property.

How to apply for divorce at the registry office without a wife

Contacting the registry office is possible under a combination of circumstances:

the spouse agrees to a divorce;
the couple does not have common minor children;
there is no need for division of property.

The reason for the absence of a wife may be illness, a long long trip and other factors for which a woman wants, but cannot contact the registry office.

Which registry office should I apply to?

The husband should apply at the place of residence or at the place of marriage registration (Federal Law "On acts of civil status" of 11/15/1997). It is advisable to immediately find out the details of the state institution for making the state duty.

Payment of state duty when applying

If both spouses agree to divorce, they need to pay 650 rubles. (Article 333.26 of the Tax Code of the Russian Federation). The receipts (checks) should be kept and pinned to the completed application.

When registering unilaterally, the husband must pay a state fee of 350 rubles.

Filling out an application

If the spouse agrees to divorce, the husband needs to fill out an application in form No. 8. The form is divided into 2 halves, each of which is filled by each person independently.

Download a sample application

The spouse is not allowed to complete the application completely independently. The wife remotely enters the data into her copy in the "she" column and applies to a notary to certify the document.

The application must contain the following information:

full name of the civil registration authority;
passport data: full name, place of registration; citizenship and nationality can be omitted;
details of the existing marriage certificate;
date, time of divorce, agreed with both parties;
series, passport number of each of the spouses:
an expression of desire to change the surname;
date of filling out the document, signatures of both parties.

Having received a copy of the wife, the spouse goes to the registry office.

Unilateral divorce

Art. 19 of the RF IC provides for the registration of a divorce in the registry office, even if there are minor children. The husband has the right to apply to the state agency on his own if:

the spouse is recognized as missing;
the wife is incapacitated by the court's recognition;
the wife committed a crime, and a court decision came into force on the deprivation of her liberty for more than 3 years.

The application will take a different form:

The essential difference between Form No. 8 and Form 9 is that it is filled out only by the spouse alone.

Additionally, data is entered if the wife:

was sentenced to a term of more than 3 years - the name of the court, the date of the sentence and its content;
missing - details of the decision to recognize her as missing in court;
incapacitated - these decisions are made to declare her incapacitated.

The documents specified in the application must be confirmed by originals or notarized copies of an extract of a court decision, a guilty verdict.

Since a spouse who is absent for these reasons cannot appear in court, her interests are cleared by guardians or property managers in case of absence.

After the application is accepted, the registry office notifies about the dissolution of the marriage:

an incapacitated guardian for up to 30 days;
a spouse who is in prison for up to 3 days, after which she is given a month to decide on a change of surname.

After compliance with all the formalities, a month after the filing of the application, the marriage will be terminated. The corresponding entry is made in the civil registry book, and the marriage divorce certificates are issued to the spouses. A spouse serving time in a colony will receive a document upon release.

Documents for divorce in the registry office without the knowledge of the wife

No matter how much the spouse wants to avoid a showdown, it is impossible to divorce in the registry office without the knowledge of the spouse, if she is in good health. The spouse does not have the right to independently file an application for divorce at the registry office and hide the fact of divorce from his wife.

An exceptional case is a divorce from a missing wife. It is physically impossible to notify her. In this case, you will need documents:

divorce statement;
identity card for verification at the registry office;
Marriage certificate;
a court decision on recognizing the spouse as missing;
check for payment of state duty.

If the spouse is at large, her place of residence is known, she must send her copy of the application through an official representative or by registered mail.

How to file a divorce petition in court without a wife

A husband files a lawsuit for divorce if the wife lives away from her spouse, does not want to meet her husband face to face due to personal hostility, is seriously ill, and her movement is difficult, and for other weighty reasons.

The claim is filed at the place of residence of the defendant. The plaintiff has the right to apply at his own place of residence if he is seriously ill or forced to look after a minor child (his own or someone else's).

State duty

On the eve of filing a statement of claim, you must pay the state fee. It will be 600 rubles. After receiving the court decision, the plaintiff and the defendant must pay another 650 rubles. when contacting the registry office for and entering the relevant information into the civil registration book.

Claim form

The statement of claim is submitted exclusively in writing. The claim reflects the information (Article 31 of the Code of Civil Procedure of the Russian Federation):

the name of the judicial authority;
information about the plaintiff and the defendant: full name, registration address and actual place of residence; information about the authorized representative of the plaintiff;
when the marriage was concluded, at what time the relationship was actually terminated;
why divorce occurs, what became the main reason and why reconciliation is impossible;
a petition for divorce;
a list of annexes to the claim;
date and signature.

Sample statement of claim for divorce with wife:

Download a sample application

If the spouse does not agree to file a divorce, the document should indicate: “The wife does not consent to the dissolution of the marriage for a reason (indicate what is the reason for the spouse's refusal). I do not want to save my family, because (betrayal, not coming home at night, alcohol abuse or other reasons) are significant for me, and I do not allow the possibility of reconciliation and preservation of the family. "

After accepting the claim, the court will set a hearing date. The defendant will be sent a summons on a certain date, but not earlier than one month from the date of submission of the document. Information will come by post, telegram or telephone message.

The absence of the spouse is regarded by the judge as ignoring the process, lack of interest in what is happening.

In the absence of the wife, the judge makes one of the possible decisions:

set a different date for the meeting;
immediately decide on the dissolution of the marriage.

In practice, 3 times failure to appear in court becomes the reason for divorce automatically.

How to avoid postponing the hearing?

Her consent to divorce will help speed up the process of divorce without a wife.

The document indicates the data of the parties to the process, provides information about the absence of claims against her husband. The consent is certified by a notary, subject to the presence of the applicant and the presence of an identity card.

Consent sample: