Absentee divorce decree: what does it mean, how to cancel

When a man and woman get married, neither of them thinks about what might happen to family relationships in the future. Life is such that spouses do not always comprehend the science of interaction in the family. The decision to divorce does not arise out of nowhere and often women have a desire to divorce their husband.

Over time, compelling reasons for divorce appear in a family. In order for a divorce to take place in a civilized manner, in accordance with the law and with minimal psychological damage to the parties, it is necessary to know about the intricacies of its organization.

What does an absentee court decision on divorce mean?

Under certain circumstances, spouses can divorce in a registry office or court without personal presence. Each partner can express their own opinion about divorce or talk about the circumstances that prevent divorce. At the same time, the Constitution of the Russian Federation guarantees every citizen the protection of personal rights. These include the impossibility of being forced to live together. To protect the constitutional interests of citizens, in exceptional cases, divorce is provided without the presence of one or both parties.

When conflict and difficult situations arise, divorce is regulated by the court, starting with the filing of a statement of claim. It is filed by one party if the spouses have minor children together or the other party does not consent to divorce. One of the conflict situations during a divorce is the division of property. If its value is more than 50,000 rubles, the case is considered by the district court. Property disputes up to 50,000 rubles are resolved by the magistrate court.

In court, the law allows for a default judgment. This often happens due to the defendant’s failure to appear at the hearing.

The reasons for the absence of the second party may be:

• disease;
• desire to gain time;
• living in another city or country;
• lack of information from the defendant about the date and time of the trial.

The reasons for the absence of the second party do not affect the outcome of the meeting and the decision, but in accordance with current legislation, the defendant has the right to justify his absence with the help of relevant documents. In addition, he is given the right to submit a request in advance to postpone the meeting to another date, indicating a valid reason. If the petition and evidence are missing, the court may issue a default divorce decree.

Is it possible to get a divorce in absentia, without personal presence?

Termination of marriage in absentia is usually understood as consideration of an application for dissolution of a marriage without the presence of the husband, wife or both spouses at the same time. According to the general rule, divorce in the territorial registry office or in court can only be carried out in the personal presence of the parties. This is done so that each partner has the opportunity to express a personal opinion or declare circumstances prohibiting the termination of the union.

On the other hand, the Russian Constitution guarantees every person the protection of personal rights, including the impossibility of being forced to live in marriage. In order to protect constitutional interests, it is stated that in exceptional situations, divorce is possible without the presence of the parties.

Table No. 1 “Conditions for termination of marriage in absentia”

When does an absentee court decision come into force?

If the defendant does not provide supporting documents, the court makes a default judgment after three failures to appear. The law also gives the opportunity to justify the party in whose absence the default judgment was made. You can appeal the court decision within 7 days, provided that the defendant provides a valid reason for his absence. In this case, the case begins to be considered anew, and the date of the court’s decision on divorce is postponed indefinitely.

After the final verdict is rendered in court, the parties have the right to appeal it within a month in accordance with Article 321 of the Code of Civil Procedure. If after a month the appeal is not filed, the decision enters into legal force and the marriage is considered dissolved.

Within 3 days from the moment the decision on divorce is made, it is transferred to the registry office, which prepares a certificate of divorce. Each spouse to whom the document is issued is required to pay a state fee in the amount of 350 rubles.

The point in the divorce process is the moment when the finished extract of the court decision, which ends up in the hands of the citizen, is submitted to the civil registry department. After this, a divorce stamp is placed in the passport and a certificate is issued.

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.

Is it possible and how to get a divorce if the child is under 1 year old?

Is it possible to get a divorce without a marriage certificate?

How to cancel a default divorce judgment

If the defendant does not agree with the court's divorce decision in absentia, he has the right to file an application to cancel it within 7 days. You can also appeal a court decision in absentia through the appellate procedure. To do this, 1 month is given after the expiration of the deadline for the defendant to file an application to cancel this decision (or if the application has already been filed, within 1 month from the date of the court’s decision to refuse the application).

The court may cancel a decision in absentia if the defendant provides significant evidence of his absence at the hearings. This is provided for in Article 242 of the Code of Civil Procedure of the Russian Federation.

The defendant, who, for good reason, has not received a copy of the document on the termination of the marriage, can also exercise the right to cancel the court's decision in absentia.

If the court does not have information about the defendant receiving a copy of the decision in absentia, it comes into force after the expiration of a set of terms:

• 3 days to send a copy of the decision to the defendant;
• 7 days during which the defendant has the right to file an application to cancel the decision;
• 1 month to appeal a decision in absentia through the appellate procedure.

The defendant files an application to cancel the default judgment in the same court in which the decision was made.

Stages of canceling a default judgment:

• drawing up an application;
• filing an application with the court;
• appearance at the court hearing.

After considering the application, the court will make a decision to refuse to cancel the default judgment or to cancel the decision and resume proceedings in this case.

In a number of cases, the law provides for the defendant’s right to annul a court decision even after the period for appeal has expired.

Such cases are considered:

• lack of information about the divorce process;
• failure to receive a court decision;
• sending a court verdict in violation of the required deadlines (before entering into legal force).

The interested party submits a package of documents to the court where the main decision was made, and if the judge grants the request, restoring the deadline for filing an appeal, you can re-apply to a higher authority.

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.

Who can refute a court decision in absentia on divorce?

Only a citizen who was previously declared missing and whose whereabouts have currently been established can refute the verdict of divorce rendered by the court.

Also, if a spouse who was previously declared dead appears, he can refute the previously made court decision.

If a citizen is declared incompetent, his interests are represented by a person appointed by the court as a guardian.

Sample application to cancel a default judgment

The application to cancel a court decision in absentia shall include the following information:

• name of the court to which the petition is filed.
• Full name, address and contact details of the defendant.
• Full name, address and contact details of the plaintiff.

Objection to an appeal against a court decision on divorce in absentia

According to current legislation, the court is not obliged to grant a petition to object to a previously adopted divorce decree in absentia. If the court intends to refuse the applicant, a formal letter must be prepared detailing the reason for rejecting the application.

Dissolution of a marital union in the absence of one of the parties gives the participants the opportunity to avoid disputes and conflicts and make a decision without delaying the legal process. On the other hand, you need to be prepared for the fact that the other party may insist on canceling the court decision in absentia.

Procedure for filing an application for divorce in absentia

Divorce proceedings are carried out:

• civil registration authorities;
• district courts;
• justices of the peace.

Universal algorithm for submitting an appeal:

• the emergence of grounds for divorce;
• agreement with the other party;
• collection of required documents;
• preparing an application;
• submission of necessary documents;
• payment of state duty.

If it was not possible to obtain the written consent of the defendant, it is necessary to submit documents confirming the sending of notice of the upcoming divorce process. A receipt of registered mail will be sufficient.

Pros and cons of remote divorce

Terminating a marriage without the presence of one party allows the participants to avoid disputes and additional conflicts. The plaintiff can divorce regardless of the opinion of the second spouse, and ignoring attempts to delay the legal process.

On the other hand, such divorces can be overturned on appeal, citing a violation of the procedure. Delaying the process and repeated review of the case is fraught with additional financial costs for the participants.

Sources

• https://allo-urist.com/mozhno-li-annulirovat-razvod/
• https://mne-30.ru/zaochnoe-reshenie-o-razvode/
• https://dearmummy.ru/zaochnoe-resheniya-suda-o-razvode-chto-dalshe-delat.html
• https://prozakon.guru/semejnoe-pravo/razvod/zaochnoe-resheniya-suda.html
• https://resheniya-sudov3.ru/zaochnoe-reshenie-suda-o-razvode-589/
• https://33urista.ru/article/reshenie-suda-o-rastorzhenii-braka
• https://zarplatto.ru/zaoshnoe-recheniya-suda-o-razvode-shto-dalche-delat/

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Right to choose jurisdiction

Art. 29 of the Code of Civil Procedure of the Russian Federation establishes the right to choose jurisdiction, and does not establish a strict framework.

That is, following the norms of paragraph 4 of this article, the applicant with a claim for divorce is free to choose where and how to file a claim for termination of the relationship.

The presence of children does not automatically entail the obligation to file a claim at your place of residence, no. The plaintiff himself decides where and how it is convenient for him to file a claim.

But the absence of children and health problems obliges him to file a claim only at the place of registration of the opponent-spouse.

Lawyer's answers to frequently asked questions

I received a divorce decree in absentia, which comes into force on the 17th, can I purchase real estate before the 17th and will my husband be able to claim it?

The Civil Code states that property acquired during marriage will be considered joint and subject to division during divorce. Marriage relations are considered terminated:

• after making an entry in the civil registration book (divorce through the registry office);
• after the court decision enters into legal force (in the current example, on the 17th).

The spouse will not be able to purchase real estate, since the consent of the official spouse is required to participate in the transaction. You will be able to complete the purchase only after the 17th.

If a car was purchased after a court decision in absentia and it entered into legal force, but the defendant subsequently cancels the court decision, will he have rights to the car?

The car will remain the individual property of the spouse who made the purchase, since the partners were divorced at the time of purchase.

Presence of property disputes or disagreements regarding the payment of alimony

In the second case, not only will the divorce process be considered in court, but it may drag on in such authorities for six months or more. What is this connected with? First of all, with the spouses themselves - if the former married couple does not have any claims or disagreements with each other regarding the division of property, everything is resolved on a general basis, but in the event of a dispute about the division, as they say, “acquired jointly through backbreaking labor,” possible nuances. Mainly related to how to divide real estate, vehicles, etc. acquired while living together in a registered marriage.

Do not forget that, according to current legislation, not only the various assets themselves, but also all associated obligations will be divided between the former spouses.

Imagine, for example, how difficult it will be to divide an apartment taken on a mortgage between former spouses, especially if, in the event of a divorce, the income of one of them, the one who plans to stay in this apartment, will not be enough to make monthly loan payments.

If you are not sure about your ex-spouse (or, on the contrary, you know him too well), then it is recommended to seize the property. You fully have the right to this and can be sure that the property will not be sold before the trial, and the proceeds for them will not “dissolve” somewhere with the ex-spouse.

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Legal protection of interests

It is quite obvious that the dissolution of a marriage can drag on for a significant period. It is for this reason that if you think that you will be prevented from obtaining the desired solution, you should definitely contact a lawyer. In principle, in this case you will be able to receive comprehensive services, which include assistance in drawing up a statement of claim, as well as representation services in court. Naturally, you must understand that such services will not be cheap, however, you will have the prospect of reliable protection of your interests. However, with modern awareness of people, with a detailed study of all aspects of the divorce process, you can refuse representation services and try to carry out the process of protecting your interests - on your own.