Absentee divorce. Legal aspects of a divorce court decision in absentia

Dealing with a divorce case judicial order possible without the presence of the plaintiff, if the plaintiff files a motion to hear the case in his absence. Otherwise, if the plaintiff fails to appear again without good reason, the claim will be left without consideration, or, if the defendant insists, it will be considered in absentia.

The claim can be sent to the court by mail in the same way as the documents attached to the claim.

A repeated marriage certificate (there is no need to obtain a repeated birth certificate of a child) or a certificate confirming the fact of state registration of the birth of a child or marriage can be obtained from the registry office that registered the relevant act of civil status by submitting an application and paying the state registration fee. duty. For the issuance of a repeated certificate - 200 rubles, for the issuance of a certificate confirming the fact of state registration - 100 rubles. A certificate is sufficient to apply to the court.

If the spouse who wants to dissolve the marriage does not ask the court to determine the place of residence of the child, the claim is filed with a justice of the peace. If there is a dispute about children, the case is transferred to the district (city) court.

According to the general rules of jurisdiction, the claim is filed at the place of residence of the defendant. In the event of divorce, clause 4 of Art. 29 of the Civil Procedure Code of the Russian Federation provides for alternative jurisdiction (at the choice of the plaintiff) in cases where the plaintiff has a minor with the plaintiff or, for health reasons, it is difficult for him to travel to the defendant's place of residence - in this case, the plaintiff can file a lawsuit at his place of residence.

At the same time, paragraph 5 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated 05.11.1998 "On the application of legislation by the courts when considering cases of divorce" states that

"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, that is, at the last known place of residence of the defendant or at the location of his property, and in the case when minor children are with the plaintiff or it is difficult for him to travel to the place of residence of the defendant for health reasons, - at his place of residence (parts 1 and 4 of article 29 of the Code of Civil Procedure of the Russian Federation).

It should be borne in mind that in the case of a default decision (in the absence of the defendant), the defendant, in accordance with Art. 237 of the Code of Civil Procedure has the right to apply for the cancellation of a court decision in absentia within seven days from the date of delivery to him of a copy of this decision, as well as appeal against the decision on appeal within a month from the expiration of this period or, if the application was filed, from the date of issuance of the court ruling to refuse to satisfy this application.

Thus, if the decision was served on the defendant after (shortly before) the plaintiff entered into a new marriage, there is a risk that the second marriage will be declared invalid and this risk should be excluded in advance,

If the spouses who are dissolving the marriage decide to do this by common consent, then they can apply and terminate the marriage union through the registry office. If one of the spouses does not want to divorce, you should file an application with the court and divorce him unilaterally. The procedure will be faster and easier, but from the point of view of legislation, this option is not suitable for all couples who want to get a divorce. In cases of property division, a court decision to dissolve a marriage is the only option that allows you to end the marriage.

Grounds for termination of marriage

The legislation provides for the following grounds on which a marriage can be dissolved:

1. Death of one of the spouses.
2. An application filed by the initiator of the divorce or the guardian of the incapacitated spouse.
3. Divorce filed by both spouses.

What are the conditions for filing an application with the court and in which case the spouses will not be able to get a divorce out of court? There are 3 circumstances that do not allow the termination of family relations without a trial:

1. Children born in wedlock and under 18 years of age at the time of divorce.
2. Refusal of divorce by one of the parties.
3. Absence of the spouse in the registry office with the consent to the divorce.

In the situation with young children, everything is clear: the husband and wife consider their future life impossible. family life but they have common child. For this reason, they will have to.

In the case of disagreement of one of the couple to a divorce, the situation is as follows: the initiator of the divorce wants freedom, and the second spouse thinks that they will reconcile and the family will survive. In this case, you should not contact the registry office, since such cases are resolved exclusively through the courts.

The third option for the development of events is the most interesting: the couple decided to leave, but one of them constantly disrupts this event without going to the registry office for divorce. Under these circumstances, a person who wants to end the family relationship must file a divorce suit with the court.

Claim Rules

According to general rule, divorce cases are considered by justices of the peace. But if questions arise regarding the determination of the place of residence of their child or the division of property, such a divorce will take place in the district court.

The initiator of the divorce must submit his application to the court at the place of residence of the defendant. If the address of the first is unknown, the claim is filed at the address of the plaintiff. This is also allowed in the case when a minor child lives in the same apartment with the plaintiff. After the dissolution of the marriage union, the court will establish for this child the place of residence with one of the parents.

To get a divorce in court, you need to prepare certain documents. The claim must comply with the established rules. The person filing the claim will be the plaintiff and the other spouse will be the defendant.

When writing an application, it is necessary to indicate information about both parties, their address of residence and the reason for the termination of the marriage. These documents must be accompanied by copies of the following documents:

• marriage certificate;
• birth certificates of the child;
• information about wages, if alimony is collected from the defendant;
• fee payment receipts;
• a notarized consent to the divorce of the defendant, if any.

Absentee decision on divorce

Sometimes in practice there are cases when the decision to dissolve a marriage is made in absentia. This is due to the absence of the defendant at the meeting, who was previously notified of the date, place and time of the meeting, but for some reason did not give a good reason for his absence and did not ask to consider the case in his absence. In this case, the process may take place in absentia proceedings.

The law provides for special rules for appealing such absentee decisions. The defendant has 7 days to apply to the court to set aside the previous decision. This term begins from the moment of delivery to the defendant of a copy of the court decision.

Along with this, there is an appeal procedure: the parties may appeal the decision within 1 month after the expiration of the application for the annulment of this decision filed by the defendant. Or if the defendant has already filed such a claim - within 1 month from the date of the court's decision to refuse to satisfy this application.

A decision rendered in absentia may be canceled if it is proved to the court that the failure to appear at the hearing is explained by a valid reason, which the defendant could not inform the court in advance. If the defendant provides the necessary evidence, the court will set aside the previous default judgment, after which the hearing will resume.

If the respondent spouse does not appear for a new trial of the case, while he will be notified of the place and date of the session, the adopted court decision will no longer be considered absentee. Consequently, the defendant will no longer be able to re-claim a new decision in the same manner.

Grounds for Divorce

It should be borne in mind that in our country they are very often delayed. Divorce will be much easier if you seek the help of a divorce lawyer in advance.

According to statistics, about 95% of divorce cases in courts end in a positive court decision. Basically, the spouses who dissolve the marriage indicate in the lawsuit the formal reasons for the termination of the marriage. The Russian family code is structured in such a way that a married couple has the right to dissolve a marriage at the request of one of them. Family law is not based on the principle of the fault of one of the couple. Thus, the formulation of the cause does not affect the result. And in the most difficult situation, divorce in court will be just a matter of time. A professional lawyer will help save this time, and at the same time the nerves and strength of both parties spent during the proceedings.

It should be understood that the marriage union will still be terminated if one of the couple declares that he no longer wants to live in marriage and further marital relations infringe on his rights. Divorce does not prevent questions about the division of property and disputes about children. These circumstances only slightly complicate the divorce procedure.

Consideration of the case in court

A month after the court accepts the claim, the date of the hearing will be set. Both the plaintiff and the defendant receive a notification by mail. During the court session, the attitude of the parties to the termination of the marriage, the grounds for divorce, the likelihood of maintaining the marriage are clarified.

If both spouses wish to separate, and they do not have disputes on other issues, the divorce procedure will be completed. The court will make a decision and after 1 month send a copy of this decision to the registry office.

In ambiguous situations, for example, if the court considers that the husband or wife does not want to divorce, a period of reconciliation is usually set, which lasts from 1 to 3 months. If the parties at the end of this period do not find a common language, the court will decide to terminate the marriage.

In some cases, the court may not accept a divorce petition. The court will refuse to accept the claim for certain reasons. For example, if the submitted application is not subject to resolution on the basis of civil law, due to the fact that:

1. It should be considered in another judicial order.
2. The application was submitted by a person to whom the current legislation did not grant this right.
3. The application contains demands that do not affect the rights, freedom and interests of the plaintiff.

Deadlines for divorce proceedings

If the process is not burdened with any requirements and both spouses agree to divorce in court, then the procedure will take about 1 month.

To this period should be added another 1 month, which is allotted for the entry into force of the judgment.

If only one spouse wants to terminate family relations, the trial can take 3-4 months, to which 1 month should also be added for the court decision to come into force. This period includes the maximum allowable period that is given to a married couple for reconciliation.

There are cases when the second spouse does not want to disperse and systematically does not appear at meetings, then the dissolution of the marriage in court will last about six months, to which you need to add 1 month, as in the previous 2 cases.

These periods are also determined by other circumstances. For example, the workload of the court, the efficiency of the postal services that notify the spouses, the actions or inaction of the defendant.

Nuances in a divorce through the courts

The Family Code of the Russian Federation gives the right to divorce to both spouses, but certain nuances should be taken into account here.

For example, a husband cannot file for divorce if his wife is pregnant or the couple has a common child under 1.5 years old. At the same time, the court can divorce this couple if the spouse so wishes.

If the claim contains a request for the division of matrimonial property, it can be filed with the court at the location of this property, if it is real estate.

If the dissolution of the marriage occurs with the division of property, it is necessary to file a claim for seizure of property simultaneously with the claim so that the defendant does not implement it.

It is possible that the divorced spouses will reconcile after the court makes a decision. In this case, they will be able to appeal against the court decision within a month, abandoning the claim.

With regard to the state fee and the cost of the services of a lawyer, there is next rule: freedom is always valued dearly in every sense of the word. A person who decides to terminate the marital relationship will be forced to spend a little.

Divorce without recovery of alimony and compensation includes the payment of state duty and the cost of a lawyer.

The fee is currently set at 850 rubles. This amount is charged to each spouse. If one of the couple is sentenced to 3 or more years, declared missing or incompetent, the amount of the fee is halved.

The cost of a lawyer will depend on the region of residence. For example, in Moscow, a consultation costs an average of 900 rubles, and representing the interests of a plaintiff in court costs from 10,000 rubles. In other cities, the amounts may be different.

Absence from the meeting

Courts generally must resolve divorce cases in the presence of two spouses. For this reason, the hearing can take place in the absence of one of the spouses, only if he has good reasons for not appearing or the plaintiff has a written application from the spouse in which he gives his consent to the case being decided without his participation. This statement must also indicate the reasons for the absence from the meeting.

As a rule, such proceedings are held in open mode, but there are exceptions provided for by law. According to the law, spouses have the opportunity to hold a closed court hearing in order to prevent the disclosure of information about the personal and intimate life of the parties involved in the process. It is worth noting that it is in divorce cases that this need arises most often, since marital relationships are of a personal nature.

A marriage dissolved in a judicial proceeding is subject to mandatory registration. This happens as follows: immediately after the court decision on divorce comes into force, the court will send an extract from the submitted decision to the registry office, which must register the divorce, making an appropriate entry and issuing former spouses certificate of divorce. For this procedure, the couple will have to pay a state fee.

The question as to whether it is possible to divorce in absentia worries those couples who no longer want to continue life together under the same roof, they have no claims against each other, but at the same time they cannot or do not want to meet in the registry office or courtroom. And then we will answer the question of whether an absentee divorce between spouses is possible.

Absentee divorce in the registry office

What does an absentee divorce mean? This is a divorce of spouses without their presence. At the same time, the reasons why one of the parties or both parties do not want to be present at the divorce proceedings may be different. They can be respectful, for example, illness, absence from the country, work, and not so much, for example, the simple unwillingness of the parties to see each other.

Regardless of the nature of such reasons, an absentee divorce can be made, but subject to a number of conditions.

When is it possible to carry out an absentee divorce in the registry office:

1. With the mutual consent of both spouses, when neither party is against a divorce;
2. In the absence of property disputes and claims to each other;
3. In the absence of joint children of minor age.

If at least one of the criteria is not met, then it is impossible to get an absentee divorce at the registry office.

As a rule, the divorce of spouses who do not have children and claims to each other proceeds as follows: both parties submit an application to the institution, and then receive a certificate of divorce. It is, so to speak, a well-oiled mechanism.

But there are always exceptions to the rule. And here it is also possible to formalize a divorce without the presence of both spouses or without the presence of one spouse.

Obtaining a divorce in absentia is possible if one of the absent spouses file an application for divorce and be sure to notarize it. The second subject, in person, will submit an application to the registry office with his own hand. With this scenario, the divorce will be carried out according to the usual scheme.

In exceptional cases, it is allowed that the other party of marital relations does not give consent to divorce. True, for this it is necessary to comply with certain conditions:

• The other party is incapacitated;
• The spouse has been convicted of a specific offense and the term of imprisonment exceeds three years;
• The husband or wife has been declared dead or missing by the court.

But regardless of what circumstance gives the right to receive a decision in absentia without notarization of the application of the second subject of marriage, it is always necessary to have documents confirming such a right. In most cases, this is a court decision.

True, there is some nuances: if the divorce was carried out without the application of the spouse, but only on the basis of a court decision, then it can be challenged in court. Such an opportunity will appear only if circumstances change: a person declared dead is found; a person found condemned will be acquitted, and so on.

Here are two ways of absentee divorce in the registry office are possible.

Absentee divorce through the court: is it possible or not?

Any divorce proceedings that take place in court are initially accompanied by difficulties: spouses cannot divide minor children, one of the spouses does not want to get a divorce, there are property disputes, etc.

Any divorce in absentia can be carried out in the absence of:

1. The plaintiff, that is, the initiator of the divorce;
2. defendant;
3. Both sides.

An absentee divorce in the absence of a plaintiff is possible when the interests of such an applicant are represented by an authorized person. As a rule, this person is a lawyer.

To represent interests, a lawyer must obtain from his client a power of attorney to provide for the divorce process. It would not be superfluous to warn the judicial authorities in advance that the plaintiff will be absent from the process.

Can the defendant be absent? Yes maybe. At the same time, the defendant may not attend the divorce proceedings and court hearings completely, without providing a lawyer in return. The defendant may also be absent without the provision of a lawyer.

An absentee divorce can occur without problems when the interests of the defendant are not represented by an authorized person, and he himself does not attend the process upon receipt of the notice. In case of repeated absence of the defendant, the court may divorce the spouses in absentia.

True, you should know the following: if the defendant is absent for a good reason or he initially knows that he will not be able to attend the meeting at the appointed time, he filed a motion to postpone the meeting, then the court has no right to even divorce in absentia.

If the court violates such rules, then the decision made can easily be challenged by appeal or cassation.

Absentee divorce . We have been practicing law in Moscow and a number of districts of the Moscow Region since 2007. If you have a problem or just don't have time to solve it, please contact us, we will help. Call or use the right to an on-line consultation.

Absentee divorce

Absentee divorce- divorce without the participation of the defendant. Most often, at the time of filing the statement of claim, it is already clear that the defendant does not intend to attend court. The reason for this behavior is to harm the plaintiff, for example, cancel the absentee decision in a year and try to present the case in such a way that he did not know anything about the divorce, lived together with the plaintiff, and ran a joint household. And if the defendant dies after three years from the date of dissolution of the marriage without dividing the joint property, then his heirs will argue with you. After all, the spouse is the heir to all property and his hereditary share is put up in the estate. The consequences are obvious - after the cancellation of the decision to dissolve the marriage, big problems begin.

Absentee divorce provided for by the Code of Civil Procedure of the Russian Federation. That is absentee divorce the same divorce as all the others, and if everything is done correctly, the interests of a bona fide plaintiff are protected by law. The set of documents submitted to the court is the same as in a normal divorce: the original marriage certificate, the state fee, copies of birth certificates of children and the statement of claim itself, in which, firstly, the moment of actual termination of marital relations is calculated, which is beneficial to you and secondly , indicates the reason that led to the filing of a claim for divorce.

Absentee divorce and its difference
from unilateral divorce

Absentee divorce differs from unilateral dissolution of marriage in that divorce in absentia itself implies that the defendant has knowledge of the divorce process and the defendant does not appear in court only on his own initiative. A unilateral dissolution of marriage occurs only at the initiative of the plaintiff, who deliberately hides from the court the place of actual residence of the defendant. However, there is still such a thing as divorce in the absence of the defendant, when the plaintiff really does not know about the location of the defendant.

Absentee divorce and case law examples

Absentee divorce and unilateral termination of marriage are closely intertwined in judicial practice. Below are real examples that we have encountered in our practice. There were comic situations. Read...

A woman contacted us. The subject of the contract is the dissolution of the marriage and the recovery of alimony, and, if necessary, the determination of the place of residence of the child. The defendant is her husband, who did not live at home for a long time, his actual location is not known, more precisely, at least three addresses where he could be located were known. The trial both began and ended in the absence of her husband, however, information about his notice to the court nevertheless came. In this regard, the judge decided to dissolve the marriage and collect alimony. The issue of the place of residence of the child was resolved by imposing alimony on the husband in favor of the child living with the mother. The decision was taken by one of the world courts of the Khimki judicial district. Subsequently, the husband tried to challenge the decision, but to no avail - an absentee divorce took place.

A woman contacted us. The subject of the agreement is the dissolution of the marriage and the recovery of alimony, and, if necessary, the determination of the place of residence of the child (in principle, all appeals on this topic are absolutely identical). The defendant is her husband, who is so lazy that he expressed his reluctance to appear in court. There was no information about the notification of the husband to the court, since the husband did not appear either for subpoenas or summons. The judge, having established the fact of the husband's residence according to the statement of claim address made a decision - an absentee divorce, at the same time determining the fact of the child's residence with his mother. The decision was taken by the Magistrate's Court located in Elektrogorsk, Moscow Region.

A woman contacted us. The subject of the contract is a hereditary dispute. As part of the inheritance case, she was confronted with the fact that her late husband had divorced her shortly before his death. What was done is very similar to a unilateral dissolution of a marriage where the defendant was not notified on purpose. Naturally, the widow went to court and canceled the absentee decision. Outcome: the divorce case was dismissed due to the death of the plaintiff. And the widow received inheritance rights. The decision to dissolve the marriage was canceled in the Nikulinskiy District Court of Moscow.

A woman contacted us. The subject of the agreement is a dispute on the division of property. The dispute itself took place in the United States, where the plaintiff and defendant lived, and in the Russian Federation they shared real estate. In a dispute in the United States, the defendant provided the court with a certificate of dissolution of marriage with the principal in absentia proceedings. There are also obvious signs of unilateral dissolution of marriage. At the same time, in the USA, he continued to live with his wife (and for him already with ex-wife, who knew nothing about the dissolution of the marriage). We canceled the decision here, but in the USA there could well have been a dispute regarding deceit on the part of a man who entered into a relationship with a woman convincing that she was his wife, but knowing that she was not his wife. Comedy. The decision in absentia was annulled in the Cheryomushkinsky District Court of Moscow.

Our work on the topic:

Absentee divorce

Our assistance on the issue of "absentee divorce" is a qualitative formation of a legal position with the development of tactics and methods of dispute, accounting possible consequences each way. The following is the preparation of procedural documents; submitting them to the appropriate authorities; conducting cases in court and other state bodies. Each stage of the work is controlled and led by your lawyer.

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Family law

It is impossible to embrace the immensity. We specialize in those issues that are displayed on our website. There may be one problem, but there are many questions about it. In this case, the source of the problem is in the field of "Family Law". And there are countless questions in this area, and most importantly, the vast majority of questions have something in common with related branches of law. One question gives rise to another, another to a third, and so on. Unfortunately, it is on such principles that jurisprudence is built. And all this must be known and put into practice.

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Absentee divorce
Application for termination of marriage
Changing the order of communication with the child
Claim for the division of the common property of the spouses
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Deprivation of parental rights of the father for non-payment of alimony

An absentee divorce is the annulment of a family union without the presence of either or both of the parties to the process.

Causes are related to a moral or physical basis: It

• complex relationship between spouses;
• desire to delay the divorce procedure;
• ignorance about the meeting;
• disease;
• being in another region or country, etc.

In the absence of one spouse, an absentee decision on divorce is implemented through the registry office and the court.

Absentee divorce through the registry office

In the registry office, the dissolution of a marriage in the absence of either spouse is formalized as follows. One spouse draws up an application for divorce (), notarizes his signature on it and gives it to another, and he sends it to the registry office along with his own.

The termination option is also considered absentee.

Absentee divorce through court

Absentee divorce occurs for the following reasons:

• The plaintiff does not have the ability or desire to deal with the divorce proceedings on his own and to conduct business on his own behalf. He warns the judge about the intention to divorce through a trustee, agrees to conduct the process of annulment of the marriage in absentia and draws up a power of attorney for the dissolution of the marriage. The trustee files a claim, is present at the meeting and has the right to appeal against the court decision.
• The defendant does not appear at the trial due to illness, ignorance of the meeting, being in another region or country, or other motives. If the Respondent requests an adjournment for good reason, the court may accept the motion and adjourn the case. But if notice of the time and place is received, but no application for postponement is filed, then the decision to dissolve the marriage by the court, after 3 non-appearances of the Defendant, will be issued without his presence. If he did not have time to warn the court about good reasons failure to appear, and in his absence a decision was made on divorce, then the Respondent has the right to appeal the court decision within 7 days. If the court cancels its decision at the request of the Respondent, the process will begin again in his presence.

The set of documents submitted to the court during the absentee procedure for terminating a marriage is identical to the usual one.

Divorce proceedings are often fraught with severe psychological trauma. Lawyer services bureaus offer spouses the service “divorce without the presence of spouses”, however, it does not apply to the termination of a family union through the registry office.