Divorce without the consent of the other party
A complex divorce process must begin by checking that all necessary documents are available. Then you need to decide which court you need to go to - the district court or the magistrate. In some cases, divorce is also possible through the registry office.
If there are disputes about the division of property or issues concerning children, it is better to seek help from lawyers.
Unilateral divorce is possible and does not violate the rights of either party to the marriage. It is regulated by the Family Code of Russia, in particular Article 22. But there are exceptions to the rules - the court does not always accept an application for divorce from a husband.
Where can I go?
There are two ways to get a divorce:
- Administrative (through the registry office);
- Judicial (through the magistrate or district/city court).
Administrative divorce is simple and quick, but it is possible only with the mutual consent of the spouses. Therefore, if one party proposes to dissolve the marriage, and the other does not want to, filing a divorce through the registry office is impossible.
Expert opinion
Dmitry Nosikov
Lawyer. Specialization: family and housing law.
The only exceptions are cases expressly provided for in paragraph 2 of Art. 19 of the RF IC, when the consent of the second spouse is impossible to obtain or it does not matter. This…
- Incapacity recognized by the court (inability to understand the meaning of one’s own actions, make decisions, control oneself);
- Court-recognized death or missing person;
- Imprisonment for a term of more than 3 years for a criminal offense.
In all of the above cases, to file a divorce, you must first obtain a court decision or sentence , which will recognize this or that circumstance. And only then – contact the registry office. If the spouse is alive, of sound mind and has not committed any crimes, for an administrative divorce you need to obtain his consent, and in case of categorical disagreement, file a lawsuit (see “How to file for unilateral divorce with and without children”).
According to Art. 22 of the Family Code of the Russian Federation, if the court determines that maintaining the marriage and living together is impossible, the marriage will be dissolved . How the judicial divorce procedure occurs - read below.
Which court should I file for divorce in?
- to the magistrate's court (if there are no children in the family or there are no disputes regarding children, there are no disputes regarding joint property worth over 50 thousand rubles);
- district/city court (if disputes arise between spouses regarding children or joint property).
When can you get a divorce through the registry office?
Divorce without mutual consent in the registry office is possible only in the following situations:
- one of the spouses was declared missing by law enforcement agencies;
- husband/wife is serving a sentence of imprisonment for more than 3 years;
- incapacity of one of the parties to the marriage.
Even the presence of minor children will not affect the transfer of the case to court.
One of the spouses must fill out an application and attach documents confirming one of the points listed above.
You can contact the registry office where the civil marriage was recorded or a similar institution, but at your place of residence.
You need to write an application and pay the state fee, which for 2017 is 350 rubles. This is the amount assigned for a unilateral divorce through the registry office.
In general, you should expect that within a month the authority will issue a certificate of divorce.
In other cases, only the district court or magistrate decides the issue of terminating the existence of the marriage union.
Invalid marriage
Oddly enough, most lawyers view marriage as a transaction. You can read many options for such discussions, with points of view “for” and against, on the Internet. Let us determine the main signs why marriage is recognized as a transaction - the parties have gathered to live together, receive rights to common property, and are obliged to bear expenses for common property. Based on these signs of a transaction, a marriage can, like any transaction, be declared invalid.
Chapter 5 of the Family Code of the Russian Federation specifies the legal norms regulating this issue. Let's turn to them too.
First of all, it is necessary to answer the main question - Why recognize a marriage as invalid? If there is a simple procedure for divorce, why delve into the legal jungle and try to resolve this issue?
The answer is simple. According to Art. 30 of the RF IC - a marriage declared invalid by a court does not give rise to the rights and obligations of the spouses. This means that if a marriage is declared invalid, then there is no marriage: alimony cannot be demanded (there is some exception), the marriage contract is invalid (again the same exception), property acquired during marriage is no longer joint property (and again there is an exception), the main thing is that for the obligations of one spouse, the second is no longer responsible.
In this paragraph, I have repeatedly mentioned the exception - this is the “conscientious spouse” exception. Let's remember "Prisoner of the Caucasus." If a minor girl is kidnapped and forced into marriage, then such a marriage may subsequently be declared invalid. On the one hand, a rich man played enough with a toy, the marriage was declared invalid and the girl was left with nothing? But no. It is in this situation that the “bona fide spouse” provision will apply. The court recognizes our Caucasian captive as a conscientious wife who suffered from the actions of an unscrupulous spouse and will oblige her not only to pay her alimony, but may also recognize the marriage contract and the right of ownership of part of the spouse’s property as valid in her favor.
To declare a marriage invalid, compelling reasons are required. According to the Family Code of the Russian Federation, these include:
- the minority of the spouse, if there is no special permission to enter into such a marriage;
- if the marriage was concluded in the absence of the voluntary consent of one of the spouses to conclude it, as a result of coercion, deception, delusion, when at the time of state registration of the marriage the spouse did not understand what was happening to him - for example, a state of drug intoxication or under pressure;
- if one of the spouses is already in a marriage that has not been dissolved by the time the new marriage is concluded, the so-called “polygamy”,
A comment. By the way, for this reason, a harem is impossible in Russia. And if a woman accidentally awakens from a love oblivion after adventures in Egypt or Turkey, when she finds out that her handsome new husband has other wives and is now laying claim to her Moscow apartment, then such a marriage in Russia will be declared invalid.
- if the spouses are close relatives (relatives in a direct ascending and descending line (parents and children, grandparents and grandchildren), full and half-blooded (having a common father or mother) brothers and sisters);
- if the marriage is between adoptive parents and adopted children, or with a person who is declared incompetent by a court due to a mental disorder;
- if one of the spouses hid information that he has HIV infection.
So, if none of the above reasons exist, then your marriage will not be declared invalid, but can be terminated by divorce.
In general, divorce is one of the forms of its termination. According to the RF IC, a marriage is terminated on two grounds: if one of the spouses has died or is declared dead by the court, and the second is its dissolution. Therefore, if it suddenly happened that in court your spouse was declared dead, not missing, but dead, then no additional decisions on divorce are needed. It is enough to have a certified copy of the court decision in hand.
Due to the fact that the annulment of a marriage is not a common situation, we cannot attach a universal statement that would take into account all the nuances. If you need to create a sample application, contact us through the “Problems” section, and we will prepare an application for you free of charge, taking into account your situation. At the moment, you can refer to this sample statement of claim for declaring a marriage invalid.
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Unilateral divorce procedure through the court
Most often, it is through the court that a marriage is dissolved without the mutual consent of the spouses. If there are children and disputes about property, the plaintiff must apply to the district court. In all other cases, to the magistrate.
After collecting all the necessary documents, the claim is filled out. If necessary, at this stage you can obtain legal assistance in drawing up an application, dividing property, and determining the place of residence of children.
A legally well-drafted claim will significantly reduce the time for divorce. At the same time, the plaintiff’s chances of obtaining a court decision that completely satisfies him increase several times.
Can they divorce without the consent of one of the spouses: nuances
It is possible to get a divorce without the consent of the second spouse, although it is difficult. With one exception. According to Article No. 17 of the Family Code of the Russian Federation, divorce is impossible without the consent of the wife if:
- The woman is pregnant
- I gave birth to a child less than a year ago
At the same time, a pregnant woman or a woman who has just given birth can file for divorce and get divorced without the consent of her husband.
This legislative norm was adopted to protect motherhood and childhood. A woman expecting a child or caring for a baby is one of the most vulnerable social categories. The law provides certain guarantees for the protection of her rights.
ATTENTION! The situation does not change even if the child is not actually related to the second spouse, was born dead, died during childbirth, or died within the first year after birth. If a pregnant woman, the mother of a baby, a woman who has lost a child before one year old, does not consent to divorce, it is impossible.
In fairness, it must be said that this is the only case when a spouse “not giving a divorce” is an insurmountable obstacle to dissolving the marriage.
Moreover, we are talking about a limited time period. As soon as a year has passed after the birth of the child, it will be possible to file for divorce without the consent of the spouse.
If there are children
Divorce with children over one year of age is possible either by mutual consent or by the disagreement of one of the spouses.
Another thing is that the “disagreeing” spouse has the opportunity to complicate it as much as possible.
For example, constantly putting forward new claims: about the amount of alimony, about the division of property, about the procedure for communication between a divorced parent and children, about their place of residence.
Taken together, this can lead to the fact that the spouse seeking to end the marriage “gives up” and stops trying to get a divorce, putting up with what is, and hoping that over time everything will somehow resolve itself.
If there are no children
Divorcing a childless couple does not require going to court. You can get a divorce at the registry office 30 days after the application is submitted. But only if both spouses want it.
If one is categorically against divorce, judicial intervention will be required. But all the same, if there are no children together, divorce, even without the consent of the other spouse, will be faster and easier than if they were present.
Is it possible to get a unilateral divorce via the Internet?
In the age of information technology, it seems that any issue can be solved using the Internet. Therefore, it is not surprising that many are interested in whether it is possible to file a divorce without a husband or wife online.
You can submit an application through the State Services website. This is stated in Article 33 of the RF IC.
A citizen registered on the website can find the section: “Office of Civil Registry Office”, then sequentially select the following fields: “divorce” - method of implementation - “unilaterally”. You must fill out the form provided and select a date for visiting the registry office.
If the divorce is unilaterally decided through the court, then it is impossible to file an application online.
How long does the divorce process last?
The divorce process sometimes takes six months or more. Even if the court does not give time for reconciliation, it has the right to consider the case for up to 2 months. Otherwise, you need to add another 3 months. During this time, the husband and wife can change their minds and find mutual understanding. To do this, the judge often orders the couple to visit a family psychologist.
It is also necessary to take into account the fact that the party who disagrees with the divorce has the right to file an appeal after the court’s decision. This takes a month. The process itself takes two months.
After the final decision on divorce is made, the document confirming it must be collected from the registry office. It can take a long time for a government agency to process a divorce paper.
Why does the law allow divorce if one of the spouses does not agree?
Only a family where a husband and wife have a mutual desire to go through life together, no matter how difficult and unpredictable it may be, can be called real and truly strong. If one of them does not want to maintain a legal relationship, this is a revelation of his will.
This fact can already be called sufficient to dissolve a marriage, since freedom of choice reigns in Ukraine. It is impossible to keep a person in an official marriage against his will , except in cases prescribed in the ICC.
Documentation
The initiator of the severance of official relations must provide a marriage certificate to the court or registry office. It should be taken into account that the second dissenting party often appropriates this document for himself, mistakenly believing that without it there will be no divorce. But this is not so; it is enough for the husband or wife to file an application to the court for the loss of the certificate. This will only delay the process of divorce, but will not stop it completely.
If there are minor children, then it is necessary to provide their birth certificates.
In a situation where one of the dissenting spouses abuses alcohol, drugs, gambles, or is registered in a mental hospital, it is advisable to attach to the claim documents confirming the spouse’s inappropriate behavior or illness. This can speed up the divorce process. In practice, there are cases when the court reduces the time for reconciliation or does not give it at all.
When dividing property, the package of documents must include papers about its value. They are prepared by independent appraisers, if required.
After collecting all the documents and paying the state fee for divorce through the court, which in 2020 is 650 rubles, you need to write an application for divorce.
Arbitrage practice
So, disagreement with divorce, regardless of the reasons, is grounds for going to court. The court will dissolve the marriage, even if only one spouse wants it, while the other does not. Judicial practice knows cases when the second spouse demonstrated his reluctance to divorce without first appearing at the registry office and then at court hearings, which, however, is not an obstacle to making a divorce decision in absentia without his participation. It is obvious that to hinder the divorce process in every possible way is at least ineffective (the marriage will still be dissolved at the request of at least one spouse), in addition, it is illegal, because according to the basic principles of family law, no one can be forced into marriage and married life against their will.
In this case, it would be much more effective to ask the court to assign a conciliatory delay in the consideration of the case - from 1 to 3 months. During this time, it is possible, if not to save the marriage, then at least to peacefully and voluntarily resolve all possible controversial issues - credit, property, housing, “children’s” and others. Otherwise, unresolvable marital disputes will have to be resolved in divorce proceedings or in another, new court proceeding (see “Dissolution of marriage in court: the procedure for divorce through the court”).
How to write a statement of claim for unilateral divorce
The claim is drawn up in triplicate. The court itself sends one of them to the defendant, the other remains with the initiator of the divorce, and the third is retained in court.
The wife or husband places the main emphasis on the reason that prompted them to dissolve the union. There is no strict form for drawing up an application for unilateral divorce. There are certain rules that are specified in Art. 131 Code of Civil Procedure of the Russian Federation.
The statement consists of several parts: descriptive and formal.
The formal part contains:
- name of the court;
- personal data of the plaintiff and defendant (full name and residential address);
- principals, if any, and his personal data and details of the power of attorney document.
The descriptive part contains:
- the reasons why the plaintiff decided to dissolve the marriage;
- number and other details of the marriage certificate;
- the date after which the cohabitation ceased, if this happened;
- information about children;
- the place where the children will live and the reasons for this decision;
- the surname that will remain after the divorce;
- demand for division of property;
- question about alimony.
The rules for filling out a claim include: dry presentation of facts, lack of emotion. The application can be submitted to the court in person, sent by Russian post or via the Internet.
