Divorce without the presence of one of the spouses, or without the participation of both parties: legal advice

Last modified: October 2020

If marriage is always a mutual decision between a man and a woman, and the presence of both during the procedure is mandatory, then the dissolution of a union between a woman and a man is possible under various circumstances. Sometimes one of the spouses does not have the opportunity to take part in the divorce procedure itself. There are cases when a husband or wife is categorically against separation and, wanting to save the family in any way, simply ignore the subpoena.

The procedures for marriage and divorce are regulated in detail by the Family Code of the Russian Federation and other regulatory legislative acts. It also describes situations where divorce is possible without the participation of one of the spouses.

Is divorce possible without the presence of both spouses?

Yes, it is possible, and there are several ways. Questions like:

where the procedure will take place (in the registry office, in the magistrate or district court);
how long will it last;
what documents may be needed.

will depend on many factors, including:

presence and number of minor children;
the presence (or absence) of mutual consent to divorce;
for what reason the second spouse is absent and whether it is valid or not;
whether the second spouse gave written consent, or whether he sent a lawyer in his place.

The main thing in such circumstances is strict adherence to the procedure for notifying the authority in which the divorce will take place about the impossibility of the presence of one of the parties.

Video: unilateral divorce

Even if one of the parties, due to certain circumstances, cannot be present at the divorce, this is not a reason to refuse a divorce. The legislative system of the Russian Federation provides for situations where divorce proceedings are possible even in the absence of one of the spouses. In order for the court not to reject the claim for divorce when one of the parties is expected to be absent, a package of documents necessary in this situation is required, including a correctly drawn up statement of claim.

Author: ozakone
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In what cases is it possible to divorce a marriage in the absence of the second spouse?

A situation in which one of the spouses does not appear for the divorce may interfere with the procedure. But not always. Everything will depend on the reason why the husband or wife is absent.

The main reason why the failure of one of the parties to appear will not be an obstacle to the divorce will be her physical inability to be present during the procedure. It is important to keep in mind that here the law takes into account only those circumstances according to which the second spouse’s failure to appear is not related to his reluctance to get a divorce. That is, if he cannot be present at the divorce due to:

Long-term stay in another area;
Performing official duties in another locality;
A physical condition that does not allow him to be present (serious illness, etc.);
Long stay in a hospital, rehabilitation center, etc.

There are several other reasons that allow you to file a divorce without the presence of the second spouse:

One of them not only wants to stay in the family, but also accompanies his desire with aggressive behavior towards his mate.
A man or woman does not, under any circumstances, want to date their soulmate.
There is no time or desire to participate in the procedure.
The applicant does not know where the spouse is.

The only condition for divorce in this case is that the second spouse, who will not be able to attend the procedure due to the above circumstances, must notify the registry office or the court about this circumstance in writing. He must also indicate that he is aware of the reason, as well as the place and time of the procedure.

In what cases can you get a divorce without court and without the consent of your spouse?

The main and, in fact, the only legal act regulating divorce proceedings is the Family Code of the Russian Federation. It is he who provides the grounds giving the right to either the husband or the wife to independently file for divorce without the participation of the other.

However, the list of such grounds is exhaustive and very limited. In particular, these include:

The second spouse is deprived of legal capacity based on a court decision;
The second spouse, on the basis of a court order, is recognized as missing;
The second spouse is in a place of serving a sentence of imprisonment by a court verdict, and the sentence is 3 years or more.

In these cases, divorce is possible through the registry office.

If there is consent from the second spouse, who files the divorce?

The consent of the second spouse to divorce significantly simplifies and reduces the divorce procedure to a minimum in duration, both with and without children. So in the first case, the decision on the divorce case will be made by the court, in the second - by the registry office. In any case, the presence of consent of the spouses on the issue of divorce promises a favorable outcome of the case without delays and visits to the authorities.

Where to dissolve a marriage without the consent of the second spouse

In the absence of the consent of the second “former half”, only the court can resolve the issue, the only exception will be cases when the participation of the second spouse is not required, and, accordingly, his consent too, see these three grounds above.

For more details, see the article: unilateral divorce through court

Intentional absence as one of the ways to refuse a divorce

To delay the separation process, or to try to save the marriage at any cost, sometimes spouses decide to avoid appearing for divorce . It is important to remember here that intentional failure to appear cannot be the reason for canceling the divorce . Of course, if there is no defendant the first time, the process will be postponed, but subsequently the couple will still be divorced.

The presence of young children in the family can delay the process and complicate the proceedings, but ultimately will not affect the final result. If the applicant is determined to get a divorce, neither the presence of a child nor the long and difficult process of dividing joint property will stop him.

Where to contact?

To the registry office or to the court (magistrate or district). The registry office will divorce you if:

There is mutual consent;
There are no small children in the family;
There are no property disputes.

An appeal to the Magistrates' Court will be necessary if:

The other party does not agree with the divorce;
There are property disputes regarding joint property, the value of which is less than 50,000 rubles.

You will have to contact the district court if:

There are children in the family (regardless of the defendant’s consent);
The parties did not reach a consensus on determining the place of residence of the children;
There is a property dispute, and the value of the disputed property is over 50,000 rubles.

It is important not to confuse under what circumstances which authority to contact.

What documents are needed

The package of documents for divorce proceedings is the same in any case. But if one of the spouses fails to appear or property is divided, it is supplemented with several more points.

Let's consider the necessary documents for divorce in court.

The original statement of claim, which states:

Last name, first name and patronymic of both spouses.
The actual reasons for divorce.
Name of the judicial authority.
Material claims for the division of movable and immovable property.
If there are minor children in the family, then it is necessary to clarify which spouse the child will live with.

At the end of the application, the circumstances of the divorce and legal norms are described.

A copy of this application.
Receipt for payment of state duty.

This is a list of documents that will be required in a normal divorce, by agreement of the two parties.

When dividing property, additional documents are required . Namely:

Property purchase and sale agreement, purchase receipts and any other official data on the value of all divided property;
Property inventory document;
Ownership.

When deciding on alimony, it is necessary to present a certificate from the official place of work of the defendant, data on wages and all income.

From these documents, the amount that the defendant will transfer to the plaintiff’s account will be calculated until the child reaches adulthood.

What to do if you can’t take part in a divorce

So, we have considered that each of the parties may have circumstances that will not allow them to take part in the process. What does the law offer in this case?

Presence of a legal representative

The best option if it is impossible to participate in the divorce in person. A notarized power of attorney is required . The document must include a record of at what stage of the divorce procedure the principal instructs his representative to participate. It could be:

Partial participation, for example, preparation or collection of documents necessary for divorce;
Full support of the case - from drawing up claims to obtaining a divorce document.

It is allowed to involve a representative in the work without a written power of attorney . In this case, it is necessary to petition the principal directly in court, which must be noted in the protocol.

For example , the court postponed the divorce, giving the parties six months for reconciliation. But the plaintiff declares that he will not be able to attend the trial in six months, as he is leaving for permanent residence in another country. He requests to be represented by a lawyer at the next hearing . The secretary, on behalf of the judge, makes a note, and after six months, if the spouses do not reconcile, they will be divorced without the presence of the applicant.

Notarized consent

The law allows spouses to divorce even without the presence of both spouses: with notarized consent. In this case you will need:

For the applicant - directly in the claim indicate a petition that he asks the court to dissolve the marriage without his personal presence;
For the defendant - to submit a written consent to divorce certified by a notary, in which he additionally requests that the process be carried out without his participation.

It is important to remember that the applicant does not need to visit a notary and certify the application to the court, but the defendant must do this.

Divorce from a spouse without him attending a hearing to consider the claim: order and procedure

Despite the fact that the divorce procedure can be carried out without one of the partners, he will still receive notifications about the upcoming meeting.
Initially, the plaintiff draws up a statement and submits it to the magistrate's court. After determining the jurisdiction of the defendant, the judge selects a hearing date and invites each party.

Important! If the denunciation of a marriage does not imply the division of property and determination of who the children will remain with, then most often the process lasts one meeting.

Responsibilities of the court:

notify the spouse twice about the date and time of the hearing;
attempt to transfer documents to the partner (copy of the claim and attachment);
consider the possibility of interrogating the defendant, if he lives in another territory, by way of a letter of request.

After the court notifies the spouse of the start of the process, he retains the right to file the claim unilaterally if the defendant does not come to the hearing.

If the location of the partner is unknown, then the judge appoints a lawyer, based on the article of the Code of Civil Procedure of the Russian Federation at the expense of the budget. Not only a divorce is possible unilaterally, but also a division of property and a solution to the issue of alimony. As soon as the court makes a decision and it enters into legal force, the ex-wife must contact the registry office to register the dissolution of the bond and obtain the appropriate certificate.

Article 51 of the Civil Procedure Code of the Russian Federation “Persons who cannot be representatives in court”

Statement of claim

The form of the claim is not established by law. The following information must be included in the document:

name of the court with address;
personal data of the plaintiff;
the essence of the appeal indicating information about the intention to terminate the relationship, address of residence;
confirmation that there is no conflict between partners (there is no need for division of property);
indication of the reason why the partner will not attend the meeting;
justification for divorce;
reference to legal acts;
the petition part indicating the requirements and a list of attachments.

The application must be certified by the plaintiff or his representative by proxy. The applicant retains the right to withdraw the claim or file a petition to change the requirements.

Sample statement of claim

Deadlines and state fees

Without payment of the fee, the case will not be considered.
It is possible to submit a petition requesting payment in installments, justifying the reason why the amount cannot be paid on time. Read also: How to see the queue for kindergarten

The state fee for divorce proceedings is 600 rubles. In addition to this, the plaintiff may incur additional expenses: for issuing a certificate, each partner will need to pay 650 rubles.

The dispute is considered within 30 days in the magistrate's court. During the course of the case, it is possible to extend the period: the judge gives the partners the opportunity to reconcile. If the spouse does not attend the meeting, then the couple is not given additional time.

Important! The decision made by the judge comes into force after 1 month.

If the case was forwarded to the district court, then the review period there is 2 months.

If one of the parties is dissatisfied with the decision, then it can appeal it within 1–3 months. The examination of claims containing demands for division of property lasts from 1 to 6 months.

The average duration of consideration of an application is 2–3 months, unless the case is complicated by petitions or the need for examinations.

Decision in absentia A decision in absentia is possible if the judge has not received information whether the spouse has been notified of the scheduled hearing. It comes into force within 30 days, but the period begins to count from the moment the defendant receives the notice.

7 days before the decision comes into force, the defendant has the right to demand its cancellation. But this action is possible if the spouse proves that he had a good reason not to attend the meeting, or he has compelling evidence that could change the course of the case.

Divorce without the presence of one of the parties through the registry office

An absentee divorce in the registry office is possible, but only if there is:

Written consent of the other party;
Notarized application for divorce;
Power of attorney for divorce in absentia in the presence of only a legal representative (necessarily certified by a notary).

Without at least one of the documents listed above, the registry office will not be able to divorce a married couple.

In the video below you will learn how to divorce your second spouse without his consent at the registry office, what documents will be needed, what is the procedure for the applicant.

The nuances of divorce through the registry office with the consent of both spouses

The table above shows the conditions under which a divorce is carried out in the registry office. If the spouse is sentenced to prison, a pre-certified court decision will be required to confirm this fact. This also applies to the case when the spouse is recognized by the relevant authorities as missing or incompetent.

Required documents

To dissolve a marriage within the registry office without the presence of the other half, you will need:

A written application for divorce, drawn up according to the established template. The form can be found here.
Applicant's passport.
Marriage certificate.
Receipt of payment of state duty. If the spouse is missing or deprived of liberty, then it is expected that 350 rubles will be charged. for the procedure being carried out. In the event that the divorce is carried out by mutual consent or as a result of a court decision, the amount charged will be 650 rubles. on each side.
Documents confirming the impossibility of participating in the procedure (court decision, consent, notarized, etc.).

The civil registry office can dissolve a marriage even in the absence of one of the spouses

The procedure for divorce without appearing in court

If there are small children in the family, divorce is possible only in court. If the second spouse agrees to divorce, but cannot come to court in person, he must:

Provide the court with evidence that he cannot be present at the trial (any document on the basis of which it will be clear that the citizen does not have the physical ability to come to court) and ask the court to consider the claim without his participation.
Submit to the authority a petition for your consent to divorce. If it is mutual, there are no property disputes, and the spouses have agreed on the upbringing and place of residence of the children, the court can carry out the procedure without the participation of the parties.
Entrust your legal representative to participate in the process. A power of attorney certified by a notary is required.

In cases where one of the couple is not physically able to attend the divorce process, but wishes to attend it, he can petition the court to allow him to participate in the process via video conferencing .

In the video below you can find out in more detail how to divorce your second spouse without his participation in court, what documents will be needed, and the procedure for the applicant.

Is it possible to get a divorce without the presence of a husband or wife?

As a rule, a marriage is dissolved with the participation of both spouses. Mutual consent implies a simplified termination procedure and therefore does not take much time. But there are often situations when one of the parties, for whatever reason, does not appear for the procedure for dissolving family ties. However, this will not be considered a sufficient reason to reject the divorce petition.

Divorce is a common occurrence among married couples.

Reasons for divorce when one of the couple is absent:

When the second spouse is physically unable to attend the divorce process (and this is not related to opposition to the divorce).
Intentional absence (refusal to participate in the divorce proceedings due to disagreement with the divorce).
Reluctance to meet with your spouse.
Aggressive behavior of one of the parties due to rejection of the divorce.
Lack of information about the spouse’s place of residence.

Video: example of divorce without the presence of a wife

When it is impossible to attend a divorce due to circumstances

It sometimes happens that the other half is not able to appear at the registry office or court for the divorce procedure, even if they agree to such a process.

The reasons for this may be:

distance from the place where the divorce process is to take place (residence in another city);
professional employment in another area;
absence due to physical condition (serious illness or disability).

If it turns out that the second spouse cannot come to the registry office or court, but he agrees with the decision to divorce, then in this case it is necessary to obtain evidence of the very fact of impossibility of presence. In addition, he must confirm his knowledge of the procedure being carried out. The absent person is required to file a claim for divorce without his participation and consent to the divorce in the form of a written statement.

Statement of claim, other documents

The statement of claim for divorce must include the following information:

name and address of the court;
personal information about the plaintiff, defendant, legal representative, their addresses (registration and residence);
circumstances of the case (date of marriage, reasons for separation, etc.);
information about small property, joint property, etc.;
petition for divorce in absentia;
numbered list of attached documents;
date, signature.

A sample application for divorce can be requested from the court office or

It is important to keep in mind that if the plaintiff does not want or is unable to attend court in person, then he must indicate this in the statement of claim.

The following documents are attached to the claim drawn up and signed by the plaintiff:

Marriage certificate.
Birth certificates for all minor children.
Other documents that can confirm the circumstances of the case.

If the plaintiff asks to consider the statement of claim without him, the following must be added to the package of documents stated above:

A document that will indicate the reason for the plaintiff’s absence, this can be a certificate from a rehabilitation center, a copy of the sick leave certificate, or any other document indicating a valid reason for the plaintiff’s absence;
A copy of the document stating that the plaintiff entrusts the conduct of the process to his legal representative.

Without at least one of the above documents, the court will not consider the claim in absentia.

Is it possible to file a divorce without a spouse?

Objective factors that may prevent one of the parties from visiting a court or a registry office to annul a marriage can arise for anyone.

The law allows for the possibility of carrying out the procedure without the appearance of any party.

The most common reasons are simple reluctance, refusal to divorce, illness, disability, limiting mobility, preventing free movement.

Below are reasons why the procedure may be officially carried out without the participants appearing.

Divorce in the absence of a defendant

The defendant also may not be present in court if he provides in advance:

Consent to divorce (necessarily certified by a notary);
Petition for divorce in absentia;
A notarized power of attorney for the participation of his legal representative in court.

There are often cases when defendants do not respond to a subpoena at all, in which case a divorce in absentia is possible.

Default judgment

The judge may make a default judgment if:

The defendant was notified of the lawsuit.
The defendant did not appear at the trial.
There is no evidence that he was absent for a valid reason.
The plaintiff agrees with the default judgment.

Only if all four conditions coincide, the court can divorce the spouses in absentia . But the court is not obliged to make a decision in absentia even if all of the above factors coincide; it has the right to postpone the court hearing by notifying the defendant again.

Not often, but circumstances do occur when the defendant was unable or did not have time to inform the court that he would not be able to take part in the process for a good reason . For example, he got into an accident and was in a coma for a long time, and when he came out of the coma, it turned out that he had missed the trial and the court issued a divorce judgment in absentia. In this case, the defendant has the right to file a motion to overturn the court decision.

Divorce automatically

If you are wondering whether it is possible to get a divorce without a wife or husband, then the RF IC provides for automatic termination of marriage. According to the law, the basis for dissolution of a marriage can be the unwillingness of one of the parties to be in a marriage relationship. There are restrictions on this right of unilateral divorce for the husband:

a spouse cannot divorce a wife who is pregnant;
or if there is a child under 1 year of age.

There is no such restriction for women, and on her initiative, termination of marriage through a judge without the presence of her spouse can be carried out at any time. Being pregnant upon the dissolution of the marriage or having a child under one year old, the wife takes full responsibility for her financial support.

If the common children have reached the age of one year, failure to appear at the court hearing can be understood as a deliberate obstacle to the divorce case. For this reason, a judge can divorce spouses without the presence of the defendant if one party fails to appear three times.

Note! The reason for absence from the court does not affect the divorce case, regardless of whether the defendant intentionally did not appear at the hearing or was simply unaware of the ongoing process. Failure to appear will only complicate the proceedings, especially if there are property claims.

Can a husband divorce without his wife's knowledge? If during the process the rights of one of the parties were damaged, for example, the spouse did not know about the divorce case or other circumstances occurred, the party has the right to challenge the decision to terminate the marriage in court, demanding restoration of the previous marital status or protection of the rights to common children , or a share of joint property.

Terms of divorce without the presence of a spouse in court

If the entire procedure for divorce is followed, then a divorce without the presence of the parties is no different in time from this procedure in their presence. The minimum period for divorce in court is a month from the date of filing the statement of claim .

But the court may drag on if it has to postpone hearings due to the temporary absence of one of the parties, lack of any necessary document, requests from one of the spouses to reconcile, or other important circumstances. The consideration of the case will be expedited if:

The defendant, immediately after receiving a copy of the statement of claim, will send a request to the court for consideration of the case in absentia;
At the very first court hearing, his legal representative will appear instead of the defendant.

Thus, if you do not want to delay the process , you must carefully comply with all the above requirements.

Divorce of foreigners and stateless couples

Let's look at the nuances of divorce for spouses who live in different countries or have different citizenships. According to Article 160 of the RF IC, termination of marriage relations with foreigners living in the Russian Federation occurs in the same manner as with citizens of the Russian Federation, without taking into account the place of residence and citizenship of both.

If citizens from Bulgaria, Hungary, Poland, Czechoslovakia, Vietnam and CIS countries filed for divorce and did not appear in court, there are special agreements for them, with special rules:

when registering outside the territory of the Russian Federation, the case of separation of couples can be considered by government agencies at the place of their permanent residence;
if two people do not have the same citizenship, but they live in different countries, the marriage will be dissolved in any state, using the legislation of that locality on family relations.

When dissolving a marriage in court, if a person is a foreign citizen, he is given the right to indicate the defendant’s place of residence at the last known address in the Russian Federation. But it takes a long time to reach a verdict - the court must understand that the other spouse knows about the plaintiff’s demands.