Divorce is an unpleasant procedure for both spouses. It brings more discomfort and trouble when it is carried out in court, because a recently separated couple has to follow certain rules, and the process itself often drags on for a long time.
If, for example, the husband does not want or is unable to attend the hearings, a court decision on divorce is made in absentia. Despite the accelerated version of this type of consideration of a divorce case, it has many nuances and consequences.
What is a default judgment on divorce?
I will not include legal terms and will explain in a language accessible to everyone what a default judgment on divorce is. If the defendant, that is, not the person who applied for divorce to the court, but the second spouse, did not appear at the court hearing, the court has the right to make a decision in absentia, but on the condition:
if the court establishes that the defendant has been notified of the place and time of the consideration of the civil case for the dissolution of his marriage.
In other words, if the defendant received a subpoena notifying him that a divorce case would be heard on a certain date, or refused to receive a letter of subpoena, he is considered to have received proper notice.
Already at the first court hearing where the divorce case will be heard, a default judgment may be made to dissolve your marriage. Although “people” say that it is necessary for the defendant not to appear twice.
Divorce in the absence of a plaintiff
The wife or husband who initiates the divorce has the right not to be present in the courtroom during the divorce proceedings. To save yourself from unnecessary worries and avoid meeting with the defendant, you can use the help of a trusted person. This subject will conduct the case. His responsibilities include not only attending court hearings, but also filing a statement of claim. The entry into force of a decision with which the plaintiff does not agree may provoke the authorized entity to appeal.
It is not very difficult to acquire a trusted person; all you need to do is issue a power of attorney. It is best for the judge to be forewarned of how the plaintiff intends to handle the case. Consent must be given to conduct the process in absentia, provided that the second spouse also does not want to be present in court during the hearing.
When can you get a divorce in absentia?
Absentia proceedings begin at the initiative of the court, due to the absence of the defendant at the hearing, who:
- was notified in the correct form of the date, time and place of the hearing;
- did not report valid reasons for absence;
- did not submit a request to the judge to consider the claim in his absence.
The spouse has the right not to appear at the meeting on the issue of divorce for certain reasons. For example:
- lack of desire to delay the divorce procedure;
- hostile relationship with the plaintiff, which makes him not want to see him again;
- being on the territory of another subject or outside of Russia;
- defendant's illness;
- strong psychological experiences due to the spouse’s divorce proceedings, etc.
Unfortunately, some of the listed grounds will not be valid for the court (for example, hostile relations between the parties). If the defendant fails to appear at the hearing three times in a row, the court has the right to make a decision in absentia in his absence.
In addition, divorce in court is possible without the personal presence of the plaintiff. But in this case, he must notify the court of the possibility of holding a meeting without his participation. If the applicant has not notified the court of his absence, and the defendant, who came to the trial, does not insist on the proceedings, the claim may be left by the court without consideration.
To relieve themselves of the obligation of personal presence, spouses can send representatives by issuing notarized powers of attorney for them and giving them the appropriate amount of authority.
Is it possible to get a divorce in absentia, without the personal presence of both spouses?
There are many reasons why spouses seek to dissolve a marriage without appearing in person at the agency examining the applications:
- a banal reluctance to see a husband or wife;
- inability to attend court or the registry office due to illness, change of place of residence or other valid circumstances;
- disagreement with the dissolution of marriage, a desire to delay the receipt of a divorce certificate.
The law allows divorce to be filed in absentia. However, this can be done if certain conditions are met and a number of requirements are met.
In what cases is a divorce in absentia acceptable?
Consideration of divorce disputes by civil registry authorities occurs without the presence of one of the participants under the following circumstances:
- mutual consent of the parties to divorce;
- absence of disputes regarding the division of joint property;
- there are no children or they have reached the age of majority;
- submission by the husband/wife of a notarized application for divorce without personal presence.
Without filing a notarial application and without notifying the defendant about the termination of the marriage, it is possible only in case of imprisonment for a criminal offense, recognition as missing or incompetent.
In the future, such a divorce may be refuted by the spouse who has restored legal capacity, or whose place of residence has been revealed.
In the absence of mutual consent to divorce, in the event of additional disputes about children or common property, the divorce is registered in court. You need to know the following about a divorce in absentia:
- You can delegate the authority to represent you in court to a lawyer (documented);
- You can apply to postpone the trial for compelling reasons;
- If a person is repeatedly absent without explaining the reasons, the decision is made in absentia.
Methods for filing for divorce without the presence of a second spouse
The interested spouse has the opportunity to send a petition to terminate the marriage to the registry office in the following ways:
- personally to the authority;
- on the State Services website;
- postal service.
Filing claims in court without the presence of the defendant is available in the following ways:
- Russian Post (function “inventory of attachment”);
- personally;
- through a representative (by notarized power of attorney).
A spouse who does not want to be present during the divorce procedure must contact a notary and prepare:
- written consent to dissolve the marriage;
- a trust letter for the second spouse, allowing you to file an application unilaterally.
The spouse who has given consent for an absentee divorce pays the state fee in the general manner, but the registry office is not obliged to send him a divorce certificate.
Take the survey and a lawyer will share a free divorce action plan in your case
Absentee divorce at the registry office
Regardless of the nature of such reasons, a divorce in absentia can be carried out, but subject to a number of conditions.
When is it possible to carry out a divorce in absentia at the registry office:
- With the mutual consent of both spouses, when neither party is against divorce;
- In the absence of property disputes and claims against each other;
- In the absence of joint minor children.
If at least one of the criteria is not met, then it is impossible to obtain an absentee divorce from the registry office.
As a rule, divorce of spouses who do not have children and claims against each other occurs as follows: both parties submit an application to the institution, and then receive a certificate of divorce. This is, so to speak, a well-oiled mechanism.
But there are always exceptions to the rules. And here it is also possible to file 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 fills out an application for divorce and must have it notarized. The second subject will submit an application to the registry office with his own hand and in personal presence. In this scenario, the divorce will be carried out according to the usual scheme.
In exceptional cases, it is allowed that the other party to the marriage relationship does not provide consent to divorce. True, for this it is necessary to meet certain conditions:
- The second party is deprived of legal capacity;
- The spouse has been convicted of a specific offense and the term of imprisonment exceeds three years;
- The spouse 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 the marriage, it is always necessary to have documents confirming such a right. In most cases, this is a court decision.
True, there are some nuances here: if the divorce was carried out without an application from 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: the person recognized as dead is found; a person found convicted will be acquitted, etc.
These two methods of divorce in absentia at the registry office are possible.
Second option
In court, you can dissolve your marital relationship without the presence of both spouses. One of the interested parties is allowed to attend the meeting if they wish. If both persons are absent, separate rules must be followed.
It is necessary to pay attention to the fact that the courts hear cases that are within the jurisdiction of the district or magistrate court. Divorce in some cases is complicated by a number of circumstances. For example, a spouse does not agree with the divorce; there may be minor children in the family, which causes disputes to arise related to their future place of residence. Often the parties cannot divide property peacefully. When you can divorce spouses at the registry office, divorce in absentia is not carried out in court, and accordingly, the case will not be considered.
Will it be possible to obtain a divorce in absentia through the registry office?
It is not always possible to file a divorce at the registry office. This is permitted when both spouses have reached an amicable agreement and they do not have children together. In addition, both husband and wife must be present when the divorce proceedings are registered, and they must submit one joint application in advance. But here there are some nuances that allow you to file an absentee divorce.
at the registry office.
This is possible if one of the spouses wrote an application for divorce (in accordance with Form No. 8) and had it certified by a notary. After which he transfers this statement to the other spouse. After receiving the document, the latter must bring it to the registry office along with his application. To do this, you need the mutual consent of the spouses.
The exception is when the spouse:
- missing or declared dead,
- incapacitated
- is serving a prison sentence exceeding 3 years, which he received on the basis of criminal law.
If your case fits one of these circumstances, you need to submit the appropriate document that proves these facts. For example, a court decision that has entered into force, a sentence. The application in this case is submitted in accordance with the established form No. 9.
Note! In the situations described above, divorce in absentia
possible without any problems.
But if the circumstances change (for example, a person was declared missing and then found) that served as the reason for the divorce, the decision to dissolve the marriage can be canceled .
There are no longer any ways to file a divorce in the registry office without the participation of the second spouse. We'll have to go through the courts.
Absentee divorce in court
In most cases, it is in the registry office that the presence of both spouses is required for a divorce, but if the procedure takes place in court, such circumstances occur much more often. One or even two spouses may be exempt from participation in the trial. But to take advantage of this opportunity, you also need to comply with some rules.
First, you need to remember that you should not immediately run to court to get a divorce. You need to understand which institution should handle your case. So, for example, if complete agreement is reached between the spouses, and they have no children, and there are no property disputes, there is no need to go to court. Therefore, when the issue of divorce can be resolved in the registry office, there is no point in going to court for a decision.
Divorce in absentia without the applicant spouse
Breaking off a family relationship is always very difficult. The matter is complicated by the need to collect a package of documents in order to defend the decision. And then there is the excitement associated with the upcoming meeting in the courtroom. Divorcing people are also worried about the future court decision.
This means that even the applicant has the right to delegate the conduct of the case in court to another person who will file an application, be present in the courtroom and even appeal the court decision, if necessary.
Moreover, there are cases when the consideration of a case occurred much faster and more efficiently if one of the spouses entrusted its management to another person. Emotions are not always on the side of the spouses, and in most cases they also harm them.
To transfer his rights, the plaintiff spouse must issue a power of attorney for divorce . It will be better if you can inform the judge involved in the case in advance. It is quite possible that the other spouse will not appear in the courtroom, but will send a proxy in his place.
Divorce in absentia without a respondent spouse
Very often, an absentee divorce is filed without the presence of the respondent spouse. The reasons for refusal to appear in the courtroom may be different:
- disease,
- ignorance about the beginning of the procedure,
- the spouse is located in another city at a great distance from the plaintiff.
Regardless of the reasons, the divorce will be filed in any case. It is for those who like to delay time that the possibility of divorce in absentia is provided .
If notices indicating the time and place of the procedure are regularly sent to the defendant, the court has the right to dissolve the marriage without the presence of the defendant spouse . According to existing legislation, only 3 failures to appear are enough.
But there is an exception here too. Sometimes the defendant does not have enough time to notify the court that he has a valid reason for not appearing in the courtroom. Therefore, if the judge made a default decision, he can ask for its cancellation. The defendant is given only a week from the date of receipt of the court decision to do this. When the court sides with the defendant and overturns the previous decision, the case is tried again . But in this case, the respondent spouse must be present.
Example
A girl living in Moscow came to court with a request to dissolve her marriage and collect alimony, due to the fact that she and the defendant have two minor children. It turned out that the defendant did not care at all what was happening at the moment in his family life, so he did not consider it necessary to come to the courtroom. The court found that the spouse actually resides at the address noted in the claim. After no response to the summons, the court decided to divorce and collect monthly payments for two children.
Is it possible to restore a previously broken marriage?
Yes, you can. Sometimes the termination of a marriage in absentia is annulled and the union is restored. There are only two such cases:
- if the husband is declared missing by the court, then a court decision appears, which was the basis for the divorce, and is cancelled;
- if the spouse who was previously declared dead also appears and the court decision is overturned.
At the same time, it is not so easy to restore a divorced marriage in absentia - the will of both divorced persons and a joint statement are required.
In the article “Divorce in absentia through the court and the registry office without the presence of a spouse,” we described in detail how to dissolve a marriage if the spouse is against it.
When does a default judgment come into force?
A divorce decree in absentia takes a little longer to enter into force than a regular decree. The law establishes that a defendant can have a default judgment set aside by appealing to the court that issued it within 7 days after receiving it by mail or otherwise.
If the defendant does not exercise this right and does not cancel the divorce decree in absentia within these 7 days, then the next deadline begins - the date for the decision to enter into legal force. The Civil Procedure Code of the Russian Federation establishes this period “within a month.”
So, we consider when a divorce decree in absentia will enter into legal force after it is issued:
at least 5-7 days for the default judgment to be received by the defendant, provided that he lives in your city
+
7 days to cancel a default divorce decree (reported from the date the defendant received a letter from the court with the decision, court employees will find out this date from the notice that is returned to the court)
+
The period for the decision to enter into legal force is 1 month.
Since a default divorce decree takes longer than usual to become final, the judge asks the first party, the plaintiff, for his consent to the default judgment. I hope I explained it clearly. So think about whether to postpone the consideration of the case, which is at least one to two weeks, or agree to a divorce without the participation of the defendant.
Time limits for a court decision to enter into legal force
Art. 321 of the Civil Procedure Code establishes that after the final verdict is rendered by the judge, the parties have a month to appeal it. If after this period the appeal has not been filed, the decision enters into legal force. From this date the marriage is considered dissolved.
Within 3 days from the date of the decision, the decision is transferred to the registry office for the preparation of a divorce certificate. At this stage, each spouse who wishes to obtain a certificate of divorce must pay 350 rubles of state duty for its production.
One of the spouses has been declared missing
Official statistics say that in the Russian Federation up to 100 thousand citizens are declared missing every year. In 90 percent of cases, the missing are found later, but it is not easy for their spouses to avoid legal difficulties. This is regulated by law, which provides for the possibility of obtaining a divorce without the participation of the parties if the wife or husband is missing.
The Russian Civil Code states that a person can be considered missing by law if there is no news of him at his place of permanent residence for a year. The starting point for a missing person is the first day of the month following the month when the last information about the citizen was received. If it is impossible to determine the month of the latest news, the beginning of the countdown is considered to be the first day of the next year.
Important: declaring a person missing is the prerogative of the court only!
How to cancel a default divorce decree?
To cancel a default judgment on divorce, within seven days from the date on which you received it against receipt, you should contact the judge who accepted it with an application to cancel the default judgment. Here's a sample to help you:
But, I warn you right away, a divorce decree in absentia will be canceled if you prove to the court that you did not appear at the court hearing for a completely valid reason and that you have evidence in the case that could influence the court’s decision.
Possibility of appealing the decision
If a citizen considered missing or dead makes himself known, the court decision to assign missing person status is canceled. Divorce in absentia is also subject to cancellation, but only if the other spouse did not have time to enter into a new marital relationship. Detailed conditions are enshrined in Article 26 of the RF IC.
A divorce is canceled if both spouses apply for it. Sole appeal is not a basis for restoring marital relations. Applications from husband and wife are accepted at the registry office.
If a divorce decision is made in absentia by the court, it is more difficult to appeal the decision. And you need to act quickly: the appeal period is 7 days from the date of receipt of a copy of the decision, as stated in Article 327 of the Code of Civil Procedure of the Russian Federation. During this time, you must have time to file a complaint against the court decision.
An appeal is considered if:
- Procedural requirements were violated. For example, the spouse did not receive notice of the meeting and therefore could not attend.
- The citizen's absence is due to valid reasons; evidence of the latter is provided.
But even if the appeal period is missed, you can appeal a decision that has already entered into force. But only if the defendant is not provided with a copy of the resolution or is not provided on time, and also if information about the divorce proceedings was not received at all.
In these cases, the appeal period is extended, which makes it possible to file a motion to disagree with the court's ruling. But the court can satisfy the complaint and cancel it only if there are compelling circumstances.
During the appeal period
Within 3 days from the date of divorce, each of the participants is sent a copy of the court verdict. Spouses can receive their copy of the document in the judge's office or remotely by mail. Then, within 1 week, an application is prepared to cancel the decision in absentia if the participant does not agree with the verdict.
Question from judicial practice: I received a notification that the court has issued a divorce decree. I did not receive any notices that my wife decided to end the marriage, or any summons to appear in court. Is it possible to appeal a divorce?
Lawyer's answer: The spouse, having decided to end the marriage, is obliged to send her husband a notice of the upcoming divorce with a copy of the statement of claim. If such notice was not received, then procedural requirements were violated and the spouse has the right to appeal the decision.
The second condition is the presence of compelling reasons for absence during the meeting. A court clerk is authorized to issue subpoenas to all participants. Ignoring 3 official calls leads to an absentee decision by the court. If a citizen was absent from his place of residence for good reasons (business trip outside the garrison, illness with inpatient treatment) and the summons was not received, then the judge is obliged to cancel the previously made decision and set a new date for resolving the dispute, when all participants can be present.
Upon expiration of the period for appeal
According to the general rule, it will no longer be possible to cancel a decision made after a month. But there are a number of cases when the defendant has the right to annul a court decision on appeal. These include:
- lack of information about the divorce process;
- failure to receive an accepted verdict;
- violation of the deadlines for sending a court decision before it enters into legal force.
The interested participant must collect a complete package of evidence to restore the appeal period, prepare a statement of claim to the court where the main decision was made. If the judge grants the request and restores the deadline for filing an appeal, then a second appeal will be made, but to a higher authority.
Methods for filing for divorce without the presence of a second spouse
You can personally submit an application either to the court or to the registry office. But in the latter case, you can save time and leave an application remotely.
Remote divorce through State Services
Authorized users of the specified state portal can submit an application for registration of divorce. The specifics of the procedure depend on the place of termination - the registry office or the court.
If both spouses agree and there are no common minor children, it is allowed to fill out an application to the registry office remotely. In this case, each party acts on its own behalf and submits a petition through its own personal account. The procedure looks like this:
- Users log in to the portal.
- The first and second parties fill out the necessary information in a special form.
- The time and place of divorce is selected - the appropriate registry office. It is worth considering that the implementation of the will of citizens will take place in at least a month. This should be used as a guide when choosing a date.
- The application is signed in a special way - using a qualified digital signature.
- State duty is paid. The payment service is also remote and is performed through State Services. In this case, applicants are entitled to a discount. Instead of the 650 rubles required by Article 333.33 of the Tax Code of the Russian Federation, the husband and wife will give 455 rubles if they use a card, mobile phone balance or e-wallet for payment. The benefit is officially enshrined in paragraph 4 of Article 333.35 of the Tax Code of the Russian Federation.
At the selected time, you need to go to the registry office office indicated in the application and pick up the completed certificate of termination of the marriage relationship.
A petition for dissolution of marriage may be filed in court under any circumstances by one of the spouses. The second person will receive a notice indicating the time of the meeting at which the case will be considered.
But you can only go to court in person; the application cannot be submitted through State Services. But you can apply for a divorce certificate at the registry office when the decision made by the judge comes into force.
List of required documents for divorce through the registry office
The most important paper for divorcees is a statement of dissolution of marriage. A special form is provided for it, approved by Order No. 201, issued by the Ministry of Justice on October 1, 2020. Which sample from those presented in the regulatory document to use depends on the specific circumstances:
- If the spouse cannot appear at the registry office, he must fill out form No. 10 and give it to the spouse, or directly to the department employees through an authorized representative. Application form is available.
- If a marriage is annulled unilaterally in the presence of the circumstances provided for in Article 19 of the RF IC, form No. 11 is used. The form can be used.
In addition, the applicant will need:
- own passport;
- a court decision that has entered into force, if the divorce was effected by a similar authority;
- certificate issued upon marriage;
- check for payment of state duty.
The papers must be presented to the civil registry office employee authorized to issue divorce certificates.
Step-by-step application for divorce in absentia
If dissolution of marriage is initiated through the registry office, the following is required:
- visit the department department;
- fill out the required form;
- if there is a completed and certified application from the second spouse, give the paper to the employee processing the request;
- submit the necessary documents.
If you submit an electronic application, you must appear at the selected time. The citizen will already be waiting for a certificate of divorce.
