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Divorce in the presence of minor children. Legal advice: when the court refuses to divorce




During the life of the spouses, the marriage may be terminated by dissolution of the marriage (divorce).

The exercise of the right to divorce does not require the expiration of a certain period from the date of marriage, nor the consent of the other spouse. But there is an exception to this rule. Article 17 of the Criminal Code of the Russian Federation establishes that during the wife's pregnancy and within a year after the birth of the child, the husband, without the consent of the wife, does not have the right to initiate a divorce case. This provision also applies to cases where the child was stillborn or died before reaching the age of one year. Of course, such a moratorium cannot save a family, but it is possible to protect a pregnant woman and a nursing mother from the unrest associated with divorce.

In the absence of the consent of the wife to consider the case on divorce, the judge refuses to accept the statement of claim, and if it was accepted, the court terminates the proceedings (clause 1, article 129, clause 1, article 219 of the Code of Civil Procedure of the RSFSR). The refusal of the court, however, is not an obstacle to re-applying to the court with a claim for divorce, if the circumstances listed in Art. 17 RF IC.

A marriage can be dissolved by the spouses in the registry office or in court. However, the form of divorce does not depend on the will of the spouses, but is determined by law. The law establishes under what circumstances a marriage can be dissolved in the registry office or in court. The main criterion is whether or not the spouses have common minor children.

1. Divorce in the registry office.

If the spouses do not have common minor children and there is mutual consent to divorce, the dissolution of the marriage is carried out in the registry office, regardless of the presence or absence of property disputes between the spouses (clause 1, article 19, article 20 of the RF IC): on the division of their common property and on payment of maintenance (alimony) to a disabled needy spouse. An exception to this rule is when one of the spouses, despite the absence of objections, evades the dissolution of the marriage in the registry office. For example, refuses to file a joint application for divorce. In these cases, the dissolution of the marriage is carried out by the court at the request of the other spouse (clause 2, article 21 of the RF IC).

With a joint application for divorce, spouses have the right to apply to the registry office at the place of residence of both of them (or one of the spouses) or at the place of state registration of marriage. In the application, spouses must confirm mutual agreement for divorce and the absence of common minor children (Article 33 of the Federal Law “On acts of civil status”).

Divorce is made after a month from the date of filing an application with the registry office in the presence of at least one of the spouses dissolving the marriage.

On the dissolution of marriage, the registry office draws up an appropriate act record. On the basis of this record, a certificate of divorce is issued, which is issued to each of former spouses.

Directly in the registry office, a marriage can also be dissolved in cases (regardless of the presence of common minor children) when one of the spouses is recognized by the court as missing or incompetent, and also sentenced for committing a crime to imprisonment for a term of more than three years (paragraph 2 of Art. 19 RF IC). In these cases, only the spouse who is not in one of those listed in paragraph 2 of Art. 19 RF IC states. State registration of the dissolution of marriage is carried out upon his unilateral application after a month after the filing of the application. Simultaneously with the application for divorce, he must present a court decision on recognizing the other spouse as missing or incapacitated, or a court sentence on condemning the other spouse to imprisonment for more than three years.

The consent of the other spouse to the dissolution of the marriage has no legal significance and is not requested, but in order to ensure his rights and resolve issues arising from the termination of the marriage in the future (about children, about property, etc.), he or his guardian, or the administrator of the property is unknown absent spouse (if any) are notified by the registry office of the application received and the date set for state registration of divorce (Article 34 of the Federal Law on Civil Status Acts).

If there are common minor children, divorce is possible only in judicial order(with the exception of cases of dissolution of marriage with persons declared by the court to be missing, incompetent and sentenced to imprisonment for a term of more than three years), regardless of whether both spouses agree or not to the dissolution of their marriage. The latter circumstance affects only the judicial procedure for dissolution of marriage.

A marriage is terminated by a court if the breakup of the family is obvious, the preservation of such a marriage is not in the interests of either the spouses themselves, or their children, or society.

The consideration by the court of cases on the dissolution of marriage is carried out in the manner of action proceedings established by the Code of Civil Procedure of the RSFSR. An action for divorce is filed with the district court at the place of residence of the spouses, if they live together, or the respondent spouse, if they live separately. An action for the dissolution of a marriage with a person whose place of residence is unknown may be brought at the choice of the plaintiff or at the last known place of residence of the defendant, or at the location of his property. In the event that minor children are with the plaintiff or when, for health reasons, it is difficult for the plaintiff to travel to the defendant's place of residence, a claim for divorce can be filed at the plaintiff's place of residence (Articles 117 and 118 of the Code of Civil Procedure of the RSFSR).

2. Dissolution of marriage in court.

RF IC establishes two different judicial procedures dealing with divorce cases. The application of one or another procedure depends on the presence or absence of the consent of the spouses to divorce.

Divorce in the absence of the consent of one of the spouses to divorce(Art. 22 RF IC). In these cases, the court must establish that the further joint life of the spouses and the preservation of the family have become impossible, i.e. establish the fact of the breakup of the family, examining the reasons that led to this.

Various sociological studies show that the motives for initiating a divorce case are constant quarrels and conflicts in the family, the immoral behavior of one of the spouses, drunkenness, adultery, etc. Most divorce suits contain a standard motive - dissimilarity of characters. The RF IC does not contain any list of circumstances under which a marriage can be dissolved. In accordance with Art. 22 of the Family Code of the Russian Federation, a marriage is dissolved if the court finds that the above and other circumstances have led to the fact that the further life of the spouses and the preservation of the family have become impossible.

If the court comes to the conclusion that the claim for divorce is not sufficiently thought out and it is possible to save the family, it may postpone the proceedings and set a period for reconciliation of the spouses within three months. The reconciliation of the spouses leads to the termination of the divorce case.

If the conciliation procedure has not yielded results and at least one of the spouses insists on the dissolution of the marriage, the marriage is dissolved. The court in these cases is not entitled to make a different decision (refusing to dissolve the marriage), even if it is convinced that this family can still be saved. Of course, it is important to keep the family together, but at the same time it is impossible either by law or by a court decision to force the spouses to live together if they (or one of them) do not want it themselves. The preservation of such a marriage is incompatible with the interests of both the spouses themselves and their children. It is this position that received its legislative consolidation in the RF IC (Article 22).

In cases where the marriage is dissolved, the court, at the request of the spouses (one of them), simultaneously resolves issues arising from the termination life together spouses: about children, about separation common property, property funds for the maintenance of the spouse. Issues related to the fate of children: about their place of residence (with their mother or father), about the payment of funds for their maintenance, the court is obliged to decide even in the absence of the relevant requirements of the divorcing spouses, if they have not reached an agreement on these issues or an agreement reached by them, according to in the opinion of the court, is contrary to the interests of the child (Article 24 of the RF IC).

Divorce with mutual consent of the spouses to dissolve the marriage(Art. 23 RF IC). The presence of the mutual consent of the spouses to divorce is a confirmation of the breakup of the family, therefore, in these cases, the court establishes not the breakup of the family, but the presence of the voluntary and informed consent of the spouses to the dissolution of the marriage. The motives for the divorce are not clarified and the conciliation procedure is not applied, but the interests of minor children in the event of a divorce of their parents must be protected by the court. It is this last circumstance that is the basis for classifying cases of divorce (with the consent of both spouses to divorce) to the competence of the court.

In order to ensure the interests of children, spouses can agree even before the trial how they will solve the issues of upbringing and maintenance of their minor children after a divorce. If the spouses have not reached an agreement on which of them the children will live with after the divorce and on the procedure for paying funds for their maintenance, or if the agreement reached, in the opinion of the court, violates the interests of the children, the court is obliged (at the request of one or both spouses or on its own initiative) to resolve these issues and make a decision on them. Thus, ensuring the interests of children is placed under the control of the court. The court is also obliged, at the request of the spouses (or one of them), to divide their common property and collect funds for the maintenance of the spouse, who, by law, has the right to receive them (see § 3 Chapter 8).

Important for ensuring the rights and legitimate interests of former spouses is the definition the moment of termination of the marriage. This moment is defined in Art. 25 RF IC.

A marriage dissolved in the registry office is terminated from the date of state registration of the dissolution of marriage, i.e. from the date of drawing up the act record on the dissolution of the marriage.

A marriage dissolved in a court shall be considered terminated from the day the court decision on the dissolution of the marriage enters into legal force. At the same time, the law contains a very significant clause: former spouses are not entitled to remarry until they receive a certificate of dissolution of the previous marriage from the registry office, i.e. prior to its state registration.

Legal Consequences of Divorce apply only to the future.

The result of a divorce is the termination of the personal and property legal relations of the spouses, with the exception of certain rights and obligations specified in the law. So, the former spouse (former spouses) has the right to keep the surname assigned to him at the time of marriage (clause 3, article 32 of the RF IC). The consent of the other spouse is not required. The former spouse has the right, under certain conditions, to receive funds for his maintenance (alimony) from the other spouse (Article 90 of the RF IC).

Termination of marriage does not entail the termination of legal relations between parents and children (see § 3 chapter 7).

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The term for divorce depends on the presence of other requirements considered together with the request for divorce: on the division of jointly acquired property, on the recovery of alimony, on determining the place of residence of the child, on the exercise of parental rights and other disputes, as well as on the availability of a notarized consent of the other spouse to divorce.

In connection with the change in legislation from January 1, 2012, the minimum period from the moment of filing an application for divorce until the entry into force of a court decision is 2 - 2.5 months. Such a term for the dissolution of a marriage is possible if there are no disputes between the spouses and if the consent of the second spouse is provided for.

You will need the following documents: a power of attorney in the name of a lawyer (you can request a power of attorney in advance by e-mail); marriage registration certificate; a copy of the completed pages of the passport; original or notarized copy of the children's birth certificate.

If the marriage registration certificate or birth certificates of children are lost or are with the other spouse, then the lawyer can obtain duplicates of these documents from the registry office.

No, in the absence of other disputes, the reason for the dissolution of the marriage is not important and is not examined by the court. In such cases, the reason for the dissolution of the marriage may not be indicated at all, or "dissimilarity of characters" may be indicated as the reason.

Yes, in statement of claim it is desirable to indicate the date from which you live separately. It can be indicated approximately, for example, "since January 2005", "since mid-2002". Even if now there is no relationship between the spouses, it must be taken into account that the property acquired by each of the spouses during the period of their separation upon termination family relations, can be recognized as the property of each of them.

You will need to come to the lawyer's office once to conclude an agreement with the lawyer, make payment and hand over Required documents, incl. notarized power of attorney. The second time you will need to come to pick up the court decision that has entered into force (an extract from the court decision).

From the moment the court decision enters into force, the marriage is considered dissolved.

On the basis of a court decision, you can at any convenient time obtain a certificate of divorce from the registry office or entrust the receipt of such a certificate to a lawyer.

In this case, the courts consider the case in one court session. Thus, the period from the moment of filing the application to the entry into force of the court decision will be minimal and will be about 2 - 2.5 months. The consent of the other spouse to the dissolution of the marriage must be notarized. The text of such consent will be sent to you by e-mail.

Yes, you can't come. If we are talking only about the dissolution of the marriage and if you have a power of attorney to conduct the case in court, there is no need for your personal appearance in court. The case will be considered by the court and the marriage will be dissolved without your presence.

Yes, we can help dissolve a marriage in court without the presence of both spouses. To do this, one of you needs to sign an agreement with a lawyer and issue him a power of attorney. The second spouse will have to provide the lawyer with a notarized consent to the dissolution of the marriage.

As a rule, no additional payments are required. If you have all the documents in your hands, then you simply pay the specified amount. The amount of the state fee for and the costs of sending one telegram to the defendant (if required) are already included.

An additional payment is made if you do not have the necessary documents and you want the lawyer to receive their duplicates for you, as well as if you instruct the lawyer to obtain a divorce certificate from the registry office on the basis of a court decision.

Yes, sure. We can represent you in such proceedings and ensure that the legal process proceeds in accordance with the law and without violating your rights.

With an extract from the court decision and a passport, you must appear at the registry office at your place of residence or at the place of marriage registration. You will be issued a certificate of, and an appropriate stamp will be affixed to your passport.

This is not difficult to do on your own, but if you want to save time, you can entrust these actions to a lawyer. In this case, you do not have to waste time visiting the registry office, queues, filling out an application and paying a state fee.

No, he can not. Either spouse may terminate the marriage at any time. Only during the wife's pregnancy and within a year after the birth of the child, the husband does not have the right to initiate a divorce case without her consent.

However, the court may not dissolve the marriage immediately, but provide time (usually one month) for the reconciliation of the spouses.

The date of registration of the decision in the registry office and affixing the appropriate stamp in the passport does not matter for determining the moment.

You can, but only during your pregnancy and within a year after the birth of the child. At other times, your objections will not be taken into account.

However, the court may allow time for reconciliation of the spouses.

No in unilaterally You cannot dissolve a marriage at the registry office. In case of disagreement or evasion of the other spouse from the dissolution of the marriage in the registry office, the marriage is dissolved by the court. Unilaterally, in the bodies of the registry office, marriage can be only in the following cases: when the other spouse is incapacitated, he is recognized as missing, or when he is sentenced to imprisonment for a period of more than three years.

We operate exclusively within the law. And within this framework, earlier when providing the certified consent of the other spouse. In the absence of such consent, we, understanding the client's interest in gaining freedom, always take measures established by law and established law enforcement practice to resolve the case as soon as possible.

We do not take other actions that are outside the law or professional ethics and warn those who decide to use them - such schemes are fraught, first of all, for the client himself.

The current Family Code of the Russian Federation contains a provision that in some cases limits the right of a husband when he can be denied a divorce. According to article 17, a husband must not file for divorce while his wife is pregnant and after the birth of a child for a year without the consent of his wife.

Can the court refuse a divorce and in what cases

When a divorce is denied

This rule was adopted to protect the interests of the mother and child, so no exceptions to the rule are provided here. Also, a husband cannot file for divorce when a child who has not reached one year of age and lives with his grandparents, separate from his parents.

This rule will also apply in the case when it is established that the husband is not the father of the child. In this case, the law does not make an exception, since it is known that the experiences associated with divorce and the divorce itself can adversely affect the health of the child and mother. It is hard to imagine that there will be a calm atmosphere in the house if the husband, according to the requirements of the law, must be married to his wife, who has not kept marital fidelity. One can only hope that the wife, hiding behind the law, will act prudently and will not keep her husband in marriage. Then the likelihood that the child will grow up in a calm environment will increase significantly.

The husband must not file for divorce if the child is dead, under one year of age, or stillborn. Because the woman who lost her child is in serious trouble. psychological state and needs protection from stressful situations.

In order for a husband to be able to initiate divorce proceedings after the birth of a child during the first year of his life or during pregnancy, the wife must give her consent to the divorce, which she must express in writing.

If it is planned to make a divorce in the registry office, it is necessary that the wife and her husband file an application for divorce. On the husband's statement, the wife should simply make an inscription that the wife does not mind the divorce. If there is no joint statement of the spouses or the corresponding inscription is not made on the application, the employees of the registry office refuse to accept such a statement for the man.

When the husband applies to the court for divorce, the wife makes an inscription on the husband's statement of claim or attaches to the case a statement that the spouse does not object to the divorce. All that Russians need for a divorce is to get the consent of the spouse to divorce. There are situations when, for one reason or another, the wife refuses to consent to a divorce. Someone hopes that it is possible to save the family, that everything is not lost yet and at first tries to keep her husband with the help of a child. Someone does not want to let her husband regain happiness with another woman and goes on principle. Someone is afraid to be alone without material support. Every woman has different motivations for rejection. It is necessary to reach out and explain to women the futility of further relationships, but hostility makes wives deaf to various arguments of their husbands.

In such a situation, some men resign themselves, while others turn to a family lawyer to influence the decision of their wife. A lawyer can understand this situation and show the benefits that a divorce brings to a woman, dispel all her fears, answer questions about what is due to the child and wife material content. Help her see that a man is not going to support her further relations. And it would be better to leave, and not to keep him by force. Although her husband had spoken about this before, he was not heard by her. But a correct and polite lawyer is more likely to convey reasonable arguments to the mind of a woman and will be able to overcome her hostility.

Stelmakhova Olga Ivanovna

One of the most unpleasant events for former spouses is the process of legal termination of this union. It is especially difficult if the family has Small child. How is the dissolution of marriage in the presence of minor children - not everyone knows. Therefore, it is worth looking into this issue.

Where are couples with minor children bred and for what reasons?

This procedure is most often carried out in the registry office, as prescribed in Art. 19 SC. The reason for this may be:

  • incapacity of one of the partners;
  • parent is missing
  • imprisonment of one of the spouses.

If they are officially confirmed, the marriage is dissolved. For this, an application is made to the registry office. This is also possible if the baby is not common, but native only to one of the spouses. Other situations are considered exclusively in court.

Reasons for applying to magistrates

For dissolution of marriage, the magistrates should be contacted only at the mutual request after an agreement is reached on the division of property worth up to 50 thousand rubles. But when one spouse does not want to divorce, the case is also considered in court. But in such a situation, a positive decision is unlikely to be made, unless there are good reasons.

The court decides who will get the baby and who will pay child support. In such proceedings, it is not the interests of the parents that are initially taken into account, but their son or daughter.

Reasons for applying to the district court

The district court is contacted if the parents could not reach a mutual agreement. Especially if the son or daughter is not relatives, but adopted. The division of property and other topics are legally discussed. When a woman or her husband does not agree to a divorce, the court gives a conciliation period of up to 3 months.

With whom will the child remain after the divorce of the parents?

During a divorce, former lovers wonder who they will leave the baby to. Another question, what is the procedure for dissolution of marriage in the presence of a child or several minor children, is also decided by the district court. This will take into account the interests of both parties. But the most important factor is the rights of a minor. Usually, about a month is given for reconciliation, and only after that a final decision is made.

If the child is less than 10 years old, then most often the mother is appointed as his guardian. But if the court decides that she cannot be entrusted with education, then guardianship is transferred to the father. In doubtful cases, the guardianship authorities may be invited for consultation. Ultimately, the following factors influence the decision of the court on the fate of the child:

  • child's opinion
  • opinion of each parent;
  • material well-being is assessed.

The court takes into account the desire and opinion of the child only if he has reached the age of 10. At the same time, a thorough questioning is carried out about his preferences and desires, with whom he wants to stay, whom he loves more, etc. When the opinion of each of the parents on this issue is asked, their solvency is taken into account. I.e financial situation health status and attitude towards the child. The final decision remains with the court.

Reasons for refusing to divorce

The judge, as well as the employees of the registry office, have the right to refuse to terminate the marriage bond. The reason for this may be the refusal of any spouse, with one condition that the age of the eldest child is not more than a year. When an application is submitted by a husband, but at the same time his wife is pregnant and does not agree to a divorce, the court decides everything in her favor. The divorce process is postponed until the unborn child reaches the age of 1 year.

The claim may be denied if an incomplete package of documents is collected or if they are executed incorrectly. In case of violation of the requirements of the law on this issue divorce proceedings can also be stopped.

How to file a divorce?

When applying for a waiver of family ties, you need to collect a number of documents:

  1. The statement itself.
  2. Confirmation of payment of state duty.
  3. Passports.
  4. Marriage certificate.
  5. Birth certificate of the child(ren).

You will also need a document confirming the consent of the spouse or wife to divorce. It must be certified by a notary. After that, the case will be submitted for consideration, and the process of termination will begin. official marriage in the presence of minor children with a decision with whom they will stay.

Duration of the divorce process

Russian legislation does not provide for restrictions on the duration of the divorce process. Usually it lasts no more than 30 days, if both parties have given their consent and agreed on all issues. In other cases, it may take much longer. It all depends on the specific situation. Particular problems occur in the division of property and in decisions on the payment of alimony. As a result, the case can be considered for months and even years.

The procedure for dissolution of marriage in the presence of one or more minor children

First, the case is considered by the registry office or the court, after which a conclusion is made. If the claim is satisfied, the decision takes effect within 10 days. Such time is allotted with the expectation that the spouses may adjust mutual relations and take the application. At the end of the allotted time, the decision of the bailiff comes into force. The registry office prepares a document officially confirming the divorce. This certificate is collected by the applicant at the branch at the place of residence.

Who should collect the documentation?

All the necessary package of documents must be collected by the person who filed the application for divorce. The same person must write a statement to the relevant authorities. If this decision is mutual, then both spouses can do this. When all the documents are collected and the application is written, the official must make the final decision. The term for making a final decision is about a month.

How to write an application?

The application is written by a person who wants a divorce. It can be issued in shifts or electronically. The electronic version requires that the application must contain a personal digital signature. If at the time of sending the application by one of the spouses the other is considered incompetent or is in custody, then he must be notified. Until the spouse is notified of the filing of a divorce application, a decision on it will not be made.

Divorce Registration

The final document is drawn up at the registry office when the procedure for dissolution of an official marriage is completed in the presence of newborn or minor children. Each spouse may keep a valid this moment surname or return the previous one. But two surnames will be written in the certificate. Also, an entry is made in the registry office about the act of divorce, which contains the following information about the parents:

  • nationality;
  • education;
  • how many minor children are there;
  • passport data;
  • date and record number;
  • date of termination of marriage;
  • children agreement.

All work can be facilitated if the spouses draw up a written agreement in advance on positions towards common minor children.


If one of the spouses has made a firm decision to terminate the family union, having his own reasons, neither the lack of consent from the second spouse, nor active opposition to divorce, nor a categorical refusal to visit the registry office or court will stop him.

The law provides for situations in which divorce is possible without the presence of one of the spouses. In this article, we will consider in detail the grounds and procedure for dissolution of marriage without presence.

When is a divorce possible without the presence of a husband or wife?Reasons for divorce without the participation of the parties

The absence of one of the spouses is not a hindrance to divorce. However, the procedure for divorce without the participation of one of the spouses depends on the reasons for such a failure to appear.

Physical impossibility of presence (absence for reasons not related to opposition to the divorce process)

There are cases when a spouse does not disagree with the divorce, but cannot appear in the registry office or court for certain reasons, for example:

  • living in another city, in another region or country;
  • work in another area;
  • disability, serious illness, stay at home or hospital treatment.

It is important that the spouse, who cannot attend the court session for objective reasons, receive documentary evidence of the impossibility of arrival and confirmation that he is familiar with the content of the claim and notified of the time and place of the case.

If the spouse agrees to a divorce, but cannot visit the court or the registry office and participate in the divorce proceedings, he should do one of the following:

  • provide documentary evidence of the impossibility of attendance and file a petition for consideration of the divorce suit withouthis participation . If such a petition is received from both parties, the divorce will take place without the presence of the parties;
  • provide a written statement of consent to divorce. In the presence of mutual consent of both spouses to divorce, in the absence of disputes about children and property, the court may decide to dissolve the marriage without the presence of one of them;
  • apply to the services of a representative and entrust him with the performance of all actions in court or the registry office on his own behalf.

If the spouse cannot appear at the court session for objective reasons, but expresses a desire to participate in the trial, at the request of the spouse, the court may use videoconferencing.

Intentional absence (refusal to participate in the divorce proceedings due to disagreement with the divorce)

In order to oppose the divorce process, one of the spouses may evade attending the court. But even the absence of the consent of one of the spouses to divorce, expressed by a deliberate failure to appear at the court session, will not cause a refusal to consider the application and automatically make a decision on divorce.

On the contrary, the failure of one of the spouses to appear may be the basis for an absentee decision on the dissolution of the marriage. To do this, it is enough just not to appear at the court session 3 times, having received a notification of the upcoming trial, without informing about good reasons for non-appearance, without asking to postpone the session. Whether this failure to appear was intentional or unintentional, it does not affect the issuance of a court decision.

The fact of the presence of minor children and jointly acquired property somewhat complicates the trial and delays the divorce process, but even these issues can be considered by the court without the presence of one of the spouses - in absentia.

Divorce without the presence of a husband or wife is possible provided that ...

  • the absent spouse agrees with the divorce, as evidenced by a written document with the appropriate content, certified by a notary;
  • instead of himself, the absent spouse sent a representative by proxy;

Other reasons for divorce without the participation of the parties

There are other reasons why spouses do not want or cannot appear in the registry office or in court:

  • Strong disagreement with the divorce of one of the spouses, accompanied by aggressive behavior and fearsome at the second spouse;
  • unwillingness to see and communicate with the spouse in the circumstances of the divorce proceedings;
  • unwillingness to waste time on divorce proceedings;
  • lack of information about the place of residence of the spouse.

Where to apply?

An application for divorce can be filed with the registry office, the world or district court.

The registry office carries out a divorce without the presence of the partieson condition:

  • mutual consent of the spouses about the divorce;
  • absence of minor children;
  • no property disputes.

In the Magistrate's Court, divorce without the participation of one of the spouses can be done in the following cases:

  • the absence of the consent of one of the parties to the dissolution of the marriage;
  • the existence of a dispute between spouses on the division of jointly acquired property with a total value of up to 50 thousand rubles;

The district court considers applications for divorce without being present in court one of the spouses in the following cases:

  • the presence of minor children (even with the mutual consent of the spouses on divorce);
  • there is a dispute between the parties about the location and maintenance of children, about the maintenance of a disabled spouse after a divorce;
  • the existence of a dispute between spouses on the division of jointly acquired property with a total value of more than 50 thousand rubles;

As you can see, even in difficult situations, aggravated by the lack of consent of one of the spouses to divorce, disputes between spouses regarding further fate children and valuable property, the law provides for the possibility divorcewithout the presence of both spouses.

What to do if it is not possible to come to the registry office or to the court?

As it becomes clear from the above, one of the spouses or both spouses may have objective or subjective reasons for not participating in the divorce proceedings. What solutions does civil procedural legislation offer for divorce without personal participation in the process?

Presence of a proxy

The best way to file a divorce at the registry office or in court without the personal presence of one or both spouses is to send your representative, having previously issued him a notarized power of attorney.

The law gives every citizen the right to conduct business through a representative (Articles 182 and 185 of the Civil Code, Article 48 of the Code of Civil Procedure). The representative shall be vested with rights and acquire obligations that arise from the person he represents in the course of divorce proceedings.

In the power of attorney, which is issued to the representative, it must be indicated which part of the divorce process is entrusted to him. Thus, the participation of a representative in the divorce proceedings can be:

  • partial (for example, only preparation of documents, presence at the court session)
  • complete (from drawing up a claim and filing documents with the court to participating in meetings and obtaining a certificate of divorce).

Sometimes the participation of a representative in a court session is possible without a power of attorney, but on the basis of an oral or written petition in court, which is recorded in the protocol. For example, if the defendant's place of residence is unknown, the court may appoint him to represent a lawyer.

Notarized consent

There is another way to file a divorce without a personal presence in court:

  • for the plaintiff - indicate in the statement of claim a request to consider the divorce case without his participation;
  • for the defendant - to submit a written and notarized consent to the divorce and petition for the consideration of the divorce case without his participation.

The procedure for divorce through the registry office without the presence of a spouse

Divorce in the registry office in the absence of one or both spouses is possible if they draw up a notarized application for divorce and submit it through their representatives by proxy to conduct divorce proceedings.

Thus, a divorce in the registry office without personal presence is possible if there is:

  • a written consent to divorce and a notarized application for divorce;
  • a notarized power of attorney for the dissolution of marriage.

The procedure for the acceptance by the registry office of a notarized application for divorce, the registration of a divorce and the issuance of a certificate of divorce is carried out in the same manner and within the same period as with personal participation in the divorce of the spouses.

Divorce without attendance in court

If the spouses have minor children, they will have to divorce in court. But this does not mean that it is necessary to attend court hearings. The law provides for the possibility of avoiding a court visit and divorce without personal presence. This can be done by either the plaintiff or the defendant.

Divorce without being present in court. Terms

As mentioned above, the condition for a divorce without being present in court is the presence of one of the documents:

  • Statement of claim with a request to consider the case without the participation of the plaintiff;
  • Documentary confirmation of the impossibility of being present and a petition for consideration of the case in the absence of the plaintiff or defendant;
  • Written and notarized consent to divorce and petitions for consideration of the case without the participation of the defendant;
  • Power of attorney to conduct divorce proceedings by the representative of the plaintiff or defendant.

Divorce without the presence of the plaintiff in court. Claim and documents

The statement of claim for divorce is drawn up according to the rules provided for by the civil procedural legislation. If the plaintiff cannot or does not want to take part in the consideration of the claim, this must be indicated in the statement of claim. It is also necessary to indicate the address to which the court will send notices to the plaintiff about the date, time and place of the court hearings, copies of court decisions in the case.

The statement of claim must be accompanied by a standard package of documents, including

  • from marriage certificate,
  • birth certificates of children
  • other documents confirming the circumstances of the case.

In addition, it is necessary to attach additional documents that allow the case to be considered in the absence of the plaintiff:

  • documents confirming the reason for the absence of the plaintiff (for example, a certificate of stay in hospital);
  • a copy of the power of attorney to conduct the case by the representative of the plaintiff;

If the plaintiff has entrusted his representative with the full conduct of the divorce case, having issued an appropriate notarized power of attorney, the representative will draw up a statement of claim, prepare and submit documents to the court, be sure to attach a copy of the power of attorney to the statement of claim.

Divorce without the presence of the defendant in court

As mentioned above, the defendant can also avoid participation in court hearings by filing with the court

  • Consent to divorce - in writing with notarization;
  • Petition for consideration of a divorce case without the participation of the defendant;
  • Power of attorney to conduct a divorce case by the defendant's representative.

But it also happens that no statements, notifications and documents are received from the defendant. At the same time, nothing indicates a desire or intention to participate in the divorce proceedings.

Judgment in absentia

The court may decide on a divorce in absentia under a combination of conditions:

  • The defendant is absent from the court session;
  • The defendant was notified of the date, time and place of the court session;
  • The defendant did not receive a notice of good reasons for the absence;
  • The plaintiff does not object to the decision of the court in absentia.

To make a decision in absentia is the right, not the duty of the court. The court may adjourn the court session by notifying the defendant thereof.

If absentee judgment accepted, the court must send it by registered mail with notification no later than 3 days after acceptance.

If the reason for the absence of the defendant at the court session was nevertheless valid, he simply did not have time or could not inform the court about it, he may declare the cancellation of the default judgment.

Automatic divorce without the presence of the defendant

Family and civil procedure legislation allows for the possibility of automatic dissolution of marriage in the absence of the defendant. In order to make a decision on divorce, the court is sufficient evidence that the defendant has been duly notified of:

  • the content of the claim and the claims of the plaintiff;
  • date, time and place of the court session.

Terms of divorce without the presence of a spouse in court

Theoretically, the period of divorce without the presence of spouses does not differ from the period of divorce in their presence. Provided that the relevant petitions are filed, powers of attorney are issued, representatives are sent. The minimum divorce period is one month from the date of filing and accepting the claim.

But! The case may take a long time for such reasons as the need to notify the defendant of the claim, to make sure that he is familiar with the claim, the place and date of its consideration of the case, which is confirmed by the relevant documents (notice of receipt of the letter, signature, application, petition). This will take additional time.

Case processing will be accelerated if from the beginning...

  • on the table of the judge there will be a petition from the defendant to consider the case without him;
  • a representative of the defendant will be present in the courtroom.

Can a court refuse a divorce without being present?

If the statement of claim did not contain a request to consider the case in the absence of the plaintiff, and the plaintiff did not appear at the court session, the claim will be left by the court without consideration.