For what reasons may a husband or wife fail to appear at trial? In what cases is it permissible not to show up for a divorce? Can a divorce proceed in court without the presence of one of the spouses? If a person does not want to get a divorce, he tries to avoid it by all means. If the husband does not want to let his significant other go and thinks that if he does not come to the registry office at the appointed time, they will not be able to divorce them. This is a misconception. In this case, his wife will simply file a statement of claim for divorce in court. If the defendant does not appear in court, the divorce will still take place without his participation in court. It’s just that a divorce through court without the presence of a spouse will take longer.
According to the norms of family law, if the husband does not want to come to the trial, this is not a basis for refusing to satisfy the filed claim. If we turn to judicial practice, divorce without the presence in court of an opponent of this action is carried out in almost one hundred percent of cases (if there are no other obstacles due to the circumstances of the case). What happens if both spouses fail to show up in the courtroom? How will the marital union be dissolved in this case? And will it happen at all? All this will be discussed in our conversation today.
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Reasons for no-show
Spouses who have minor children or cannot agree on the procedure for dividing property are forced to divorce through the courts. However, sometimes a husband or wife “boycotts” the hearings, which results in failure to appear at the hearing. Explanations for such behavior can be both logical and malicious (contributing to the deliberate delay of the process).
The list of reasons considered valid is not regulated by law. In law enforcement practice, reasons that meet the following criteria will be convincing:
- documented;
- clearly prove the impossibility of being in court at a particular point in time.
The most common compelling reasons are:
- illness - proven by a sick leave certificate or a certificate from a medical institution;
- inability to arrive at your destination on time - temporary interruption of transport links due to natural disasters (confirmed by a certificate from the transport company);
- man-made accidents, catastrophes - recorded by the Ministry of Emergency Situations;
- the absence of a summons or its receipt on the day of the meeting is confirmed by the date stamped on the summons or postal notification of delivery;
- departure to another region is proven by a business trip order, a certificate of illness of a close relative, a birth/death certificate, etc.
If a citizen cannot attend a court hearing for a good reason, for example, due to illness, he is obliged to inform the court about this in writing. Upon subsequent appearance, the reason for absence must be confirmed with documents.
Sanctions for failure to appear at the trial are determined by the judge. If you did not have time to prepare supporting documents in a timely manner, you need to draw up a petition to request the necessary documents and then attach them to the case. Unjustified absence from a meeting entails procedural liability.
What will be the punishment for the participants in the trial?
When the plaintiff or defendant fails to arrive in court at the appointed time, no fines will be imposed on them. However, punishment awaits professional participants in the trial - specialists, experts, witnesses, translators, guardianship officials and other people. A certain amount of money will be collected from these people.
Unreasonable failure to attend a meeting is regarded by the judge as disrespect for oneself. Such an offense will prevent you from protecting your interests in higher authorities later, if necessary.
Are there sanctions for failure to appear in court?
According to the rules, in case of opposition to the correct and timely consideration of the case, compensation may be recovered from the plaintiff or defendant for loss of time due to their failure to appear at the meeting.
In case of malicious evasion from giving evidence, the perpetrators may be subjected to forced transportation to the courtroom, as well as a fine of 1,000 rubles. for contempt of court, expressed in failure to appear at a hearing. Similar sanctions apply to other participants in the process who are required to testify in court (experts, translators, witnesses) but who fail to appear.
Notice to the defendant
The preparatory stage for consideration of the case consists of notifying the participants of the meeting, including the plaintiff, defendant and third parties. The document must be sent in advance so that the parties have time to prepare for the process. If the notice was sent 1-2 days before the meeting, then this is a forgivable reason for requesting a change in the date of its holding.
You can notify the defendant in several ways - by sending a registered letter, SMS message, telegram. If the notice was sent taking into account all legal requirements and rules, then it is considered that this participant in the trial has received it.
The agenda contains information about the date of the meeting and the address.
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Options for notifying the parties
The court must notify the participants in the process of the date and place of its holding (). The summons is sent to the parties in one of the following ways:
- by mail (registered mail with acknowledgment of delivery);
- by telegram;
- telephone message;
- by fax;
- in another way that allows recording the date of service of the summons.
The document is sent in advance so that the parties have time to reconsider their plans, freeing up time for a visit to court. Receiving a summons on the day of the hearing or the day before is a valid reason for filing a motion to reschedule the hearing.
What to do if the defendant refuses to receive a summons?
It is not uncommon for defendants who do not agree to divorce to skip hearings and avoid receiving notices. Many people believe that this prevents divorce. In this case, you can serve a subpoena in the following ways:
- the plaintiff can hand over the summons to the defendant himself against signature (Article 115 of the Code of Civil Procedure of the Russian Federation), in case of refusal, a mark is placed on the document in the presence of a witness (the summons with the mark must be returned to the court office);
- inform the judge of the spouse’s telephone numbers, for example, to send a telephone message to the employer;
- send a telegram with an attachment in the form of a summons by mail with a notification, if the spouse refuses to sign, the postman will mark that the telegram was not delivered due to refusal.
Despite the refusal to accept the notice or telegram, the participant in the trial will be considered notified (Article 117 of the Code of Civil Procedure of the Russian Federation). The fact of refusal to receive notice must be reported to the judge. To make a decision in a divorce case, it is important not only the appearance of the participants, but also the receipt of notifications from each of the parties.
Is divorce possible in the absence of one of the spouses?
The failure of the plaintiff or defendant to appear at the trial without explaining their absence is not a reason for its termination. The legislators who prescribed this rule assumed that a conscientious citizen fully understands the consequences of his action. Therefore, he will either find the opportunity to notify the court of the presence of circumstances that prevent his participation in the hearing, or transfer his powers to a legal representative.
In addition, if the plaintiff and defendant take care in advance that the divorce takes place in their absence, they will not be able to attend the court at all. Drawing up a power of attorney to represent your interests will allow you to resolve the issue quickly and painlessly for both parties. In addition to the notarized power of attorney, it is necessary to provide the court with written consent to divorce and a petition to consider the claim in the absence of the parties ().
If one of the spouses believes that his participation in the process is important, but for some reason cannot come to court, he has the right to petition to postpone the date of the hearing.
What to do if the plaintiff does not come to court
The absence of an applicant at a hearing is often considered by the court as a deliberate delay in the process. The judge may see a lack of logic in the applicant’s actions and consider that he is not interested in dissolving the marriage.
If the applicant fails to appear for the first time, the court hearing will be postponed to another date. The citizen will be notified of this by summons. If the plaintiff skips the hearing a second time, the judge has the right not to consider the case. In this case, the defendant can insist on considering the claim by asking the court for a divorce.
What to do if there is no defendant at the meeting
The defendant's absence from court usually indicates his reluctance to get a divorce. However, such actions deprive a citizen of the opportunity to defend his position, petition for reconciliation with the offended spouse, and in the case of division of property, to present documents and evidence that would allow him to make a more favorable decision.
In case of absence at the first meeting, the judge will ask whether the citizen has a valid reason for failure to appear. If the answer is positive, he will set a new date for consideration of the case.
If the defendant does not come to the second hearing, it will be rescheduled again. However, “pulling on” indefinitely will not work, since each hearing of the case inevitably brings the parties closer to a judicial verdict. If the defendant misses the third meeting, the judge makes a decision on divorce in absentia.
If a citizen has taken all measures to ensure that legal proceedings proceed as usual (issued a power of attorney to his representative, formalized consent to consider the case without him), the meeting will not be postponed. The judge has the right to dissolve the marriage in the absence of the defendant.
What is the difference between divorce without presence and divorce without consent?
Divorce can only be initiated by one party. There are two fundamentally different situations for divorce:
- physical absence of the husband or wife from the meeting;
- the defendant's refusal to divorce.
In the first case, we are talking about the fact that the spouse does not appear at court hearings for circumstances not related to his attitude to the divorce. The second situation is explained by the lack of desire of the spouse to dissolve the marriage. In this case, the party who does not agree to the divorce may appear at the hearings, but express objections.
Methods to speed up the consideration of a claim
If the opposite party deliberately delays the divorce process, you should find out the reason for such actions. There are three possible options:
- ignorance that divorce proceedings have been initiated;
- significant reasons for absence;
- reluctance to go to court.
Depending on the reason for the delay, methods for resolving the issue are selected.
Failure to receive notice of the date and time of the meeting
Judicial authorities often make mistakes when sending subpoenas, for example, sending them to a different address or not delivering letters to the post office in a timely manner. In addition, correspondence may be delayed in transit or even lost due to the fault of the postal service.
To exclude failure to appear due to ignorance of the date of the court hearing, you can personally serve the summons on the defendant (does not prohibit such actions), transfer it through the employer, or send a telegram to the addressee notifying the date and place of the hearing at the place of residence.
What happens if the judge does not have documentary evidence that the defendant was properly notified of the meeting? If there are no supporting documents in the case (telephonograms, notification of delivery of a registered letter, a summons with a mark), the decision made by the court will be invalid.
Unexpected situations
A sudden business trip, delay in the departure of a train or plane, illness, death of a close relative, or other significant reasons often become the reason for the absence of a participant in the trial in court. This list includes financial problems (no money to buy a ticket to another city), which many judges consider quite respectable.
Unforeseen situations cannot be excluded, but a busy defendant can obtain consent to divorce and a petition to consider the case in his absence.
Deliberate evasion of participation in a court hearing
If you deliberately fail to appear in court, it is recommended to be patient. If the defendant does not come to the first hearing, the trial will be postponed for a month. On the second, he can ask for a three-month period for reconciliation, on the third, he can petition to postpone the deadline, on the fourth, he can again fail to appear in court for a good reason. A reasonable solution: try to come to an agreement with your spouse on a divorce, resolving all controversial issues due to which the consideration of the case is constantly postponed.
In addition, the failure of the defendant to appear, notified in a timely manner of the place and time of consideration of the claim, allows the commencement of proceedings in absentia (). In this case, it is necessary to obtain the appropriate consent of the plaintiff.
In divorce cases, it is paramount to document that the parties have been properly notified of where and when the hearing will take place. The appearance in court or the absence of the plaintiff or his opponent are not the main reasons for refusal to conduct the process.
Default judgment or automatic divorce
If the defendant fails to appear, the divorce decision is made in absentia or adopted automatically.
In the first case, if, for example, the plaintiff is the wife, the couple will be divorced in absentia while simultaneously meeting the following conditions:
- the husband did not come to the court hearing;
- there is evidence that the spouse received notification of the place and date of the meeting;
- the husband did not file a petition with the court to consider the case in absence;
- the defendant did not express a desire to suspend the process by filing an application for a period for reconciliation.
Based on Art. 233 of the Code of Civil Procedure of the Russian Federation, a corresponding court decision is made. A copy of it is sent to the defendant no later than 3 days after the end of the process.
The husband will be able to apply to cancel the decision to the court that issued it within 7 days from the date of notification. After the expiration of this period, 1 month is given to appeal the decision to the appellate court.
If the defendant’s claim is denied in the district (magistrate) court, the start of the month period for filing an appeal to the appellate court will be the date of the decision on the refusal (Article 237 of the Code of Civil Procedure of the Russian Federation).
Unlike the procedure of absentee proceedings, automatic divorce in court is a process not burdened by inaccuracies and disagreements. The judge receives reliable information that the defendant is familiar with the claim, notified of the date and place of the hearing, and agrees with everything.
Divorce through the registry office
Administrative divorce requires the presence of a husband and wife. Divorce in the registry office in the absence of the second spouse is possible only if he is declared dead, incompetent, missing, or he is serving a long sentence (more than 3 years).
The divorce will take place if the applicant writes a corresponding statement in which he indicates the reason for which he requires a unilateral dissolution of the marriage, and also collects all the documents giving him the right to apply for a divorce without notifying the second spouse.
Read: Is it possible to get a divorce without my husband's consent?
How to competently file a claim
It is necessary to explain the reasons why the applicant requests to consider the case without his presence. It is also necessary to attach supporting documents, for example, certificates from a medical institution.
3 necessary attachments to the claim:
- a receipt confirming payment of the state fee;
- a photocopy of the application for the defendant;
- power of attorney, if interests are represented by a trusted person.
The divorce process will go faster if there is a petition to consider the dispute without the participation of the other party and a power of attorney.
Litigation in the absence of one of the parties
- Any of the spouses.
- Guardian of the spouse if the court has declared the spouse incompetent.
- Prosecutor. He can file a claim when required based on the interests of an incapacitated or missing person.
According to the Law “On the Prosecutor's Office of the Russian Federation”, the prosecutor can act as a plaintiff in a civil case, since he protects the rights of people.
The husband cannot file a claim without the consent of his wife if she is pregnant or less than a year has passed since giving birth, even if the child was stillborn or died before the age of one (Article 17 of the Family Code).
Such exceptions were made in order to preserve the health and nerves of the mother and child, since legal burdens negatively affect their well-being.
Deadlines for filing a divorce
On average, the divorce process will require two to four court hearings (if one party is against the divorce).
If the parties agree, a decision is usually made at the first meeting. The minimum period for filing a divorce is a month and 11 days. If the decision came into force earlier than this period, it will be illegal.
The average time for registration when spouses agree to divorce is one and a half months and 1.5-3 months if someone does not agree, sometimes more than 3 months.
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Circumstances that affect the processing time:
- norms of Family Law (divorce is carried out no earlier than a month from the filing of the claim);
- norms of the Code of Civil Procedure of the Russian Federation (provide a period for appealing a court decision before it enters into force);
- the workload of the court and the degree of efficiency of the mail, which notifies the parties;
- complaints about the illegality of judicial actions (may increase the registration period by another 2 months);
- correction of errors and clerical errors (increase the processing time by 1-3 weeks);
- inaction of any party.
Divorce in the registry office
Divorce through the registry office can be achieved if the couple wishes, if they do not have minor children. The law does not contain proposals for terminating marriage ties if the husband or wife fails to appear before the authorities. If both spouses do not appear for the divorce, their union will remain unchanged.
In order for the procedure to have minimal costs, the couple must act together.
- The application must be submitted by both husband and wife. To do this, you can use the services of the MFC, the “Public Services” portal.
- If it is impossible to come to the MFC or you do not have your electronic signature to submit an application on the site, the letter is sent by mail. The signature is certified by a notary.
- A month after the separation papers are received by the registry office, they are registered. At the appointed time, one of the spouses will definitely need to come up.
Due to permanent residence abroad, couples (citizens of the Russian Federation) can divorce their marriage if they submit an application to the Russian consulate. But it is necessary that they appear together on the day determined for the divorce procedure and confirm their consent.
Let's sum it up
So, if the defendant, notified of the upcoming court hearing, does not come to court on the established date, then at the third hearing the divorce will be carried out without him. In the case where the defendant did not know that the plaintiff had sent such a statement to the court, he has the right to hire a lawyer and then appeal the divorce decree.
If only the defendant came to the hearing, and the party that initiated the hearing of the case is absent, then he has the right to demand that the hearing be held without the plaintiff. In this case, the plaintiff must provide evidence that the reasons for missing the meeting were truly excusable.
If neither party can be present in the courtroom on the set date, then they must either request that the time for the consideration of the case be moved up, or ask for the divorce to be carried out without them, in absentia.
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In what cases is it necessary for both parties to participate in the divorce process?
In some cases, both parties need to be present. So, if spouses have children together, then the divorce process must take place in person, when the plaintiff and defendant are in the courtroom. At such a meeting, the question of who the child will live with is considered.
Both parties must provide evidence for the judge to decide that the child would be better off with his mother or father. Despite the fact that children are usually left with their mother, there are many precedents when, by court decision, they remained to live with their father.
In order for children to remain with their father after a divorce, the following must be proven:
- the mother’s inability to support her children on her own;
- maintaining a marginal lifestyle;
- children's lack of attachment to their mother (it is necessary to undergo an appropriate medical examination, which is ordered by a court decision or is carried out voluntarily).
Witness testimony and various documents are accepted as evidence. The personal presence of both spouses is also required if there are property claims. To avoid this problem, it is worth filing two separate claims for division of property and for divorce.
