How to file for divorce unilaterally: divorce without presence through a registry office or court, with children, sample application

The breakdown of family relationships does not always occur by mutual consent. Therefore, the law provides for unilateral divorce.

To dissolve a marriage, it is not always necessary for both spouses to be present at the same time. Unilateral divorce is a process that is started without the desire and sometimes even without the knowledge of the other spouse. The termination of a marriage is regulated by Articles 16-26 of the Family Code.

We are talking about a unilateral divorce when one spouse does not want to get a divorce or cannot come to the divorce process.

Many people are puzzled by how to file for divorce unilaterally. There are 2 options:

Extrajudicial - through the registry office.
Judicial - through the courts of first instance.

Unilateral divorce through the registry office

The most common procedure is divorce by applying to the registry office. This requires 3 conditions:

absence of minor children;
both husband and wife must be present;
consent of both parties is required.

It is important that all conditions are met simultaneously. As you can see, divorce is allowed with the joint will and appearance of two spouses. However, there are exceptions. A marriage is annulled without the consent and presence of the spouse if he:

incapacitated;
sentenced to more than 3 years;
considered missing.

In these cases, it is necessary to confirm this fact with documentation. And apply to the registry office with the appropriate document. The marriage is dissolved in a month.

Example: A man and a woman got married in 2005 and bought a house as common property.
There was 1 child in the family. In 2021, the spouse was sentenced to 4 years for fraud, due to which the victims suffered serious losses. To pay off his debts, the convict tried to sell his home without his wife’s knowledge. In response, she filed for unilateral divorce with the simultaneous allocation of the child’s share in the common house. The court dissolved the marriage without taking into account the opinion of the convicted person. The wife's demands were fully satisfied.

What to do if you have a child

When figuring out how to file a unilateral divorce, a person must first of all take into account the fact of the presence of minor common children. If they exist, this is grounds for going to court. The issue is being considered by the world and regional authorities. It all depends on the issues that the person wants to resolve in court. The magistrate deals with divorce, division of property if its price is less than 50,000 rubles, as well as the collection of alimony. If it is necessary to determine the order of communication of children, their place of permanent residence, as well as to divide property, the price of which is higher, it is necessary to contact the district authority.

By the way! If spouses want to resolve issues that are within the jurisdiction of different authorities, it is permissible to prepare several claims at once and send them to the appropriate court.

The proceedings can be expedited if the spouses independently reach an agreement and document the decisions made.

How to submit an application to the registry office

Filing an application for divorce is carried out in 2 ways:

Personal appeal. That is, come directly to the registry office.
Through the Multifunctional Center. You need to go there with all the documents. After 30 days, a divorce certificate is issued.

You can also apply online. To do this you need:

register on the State Services portal;
choose a divorce service, set a date;
fill out an application and upload a scan of your passport;
pay the state fee and print a receipt.

Next, you need to wait for an answer when you can come to the registry office to sign the application. Have all documents with you. The procedure takes no more than 30 days.

In addition to your passport, application and state fees, upon termination, depending on the situation, you must submit additional documents:

A court decision declaring the second spouse incompetent (if the marriage is terminated on the basis of incapacity);
A court decision on the fact of a missing spouse (if the spouse has been absent for more than a year);
The court's verdict on the imprisonment of the second spouse and information about the place where the sentence will be served (if the sentence is 3 years or more, the suspended sentence is not taken into account).

Peculiarities

You can get a divorce at the registry office without the presence of the second spouse in two cases: if there are grounds for using a unilateral (simplified) procedure, or when he cannot come to submit a joint application.

Important! The law does not provide for the possibility of divorce by proxy if both spouses cannot submit an application.

Unilateral divorce

The personal presence of the second spouse is not necessary if he is declared incompetent by the court or is serving a sentence of three years or more for a crime. A similar rule is relevant if the spouse is declared missing. This is stated in Art. 19 RF IC. You can get a divorce this way even if you have minor children.

A husband or wife can submit an application unilaterally in person, or through the State Services portal, if such a service is available in their region of residence.

The simplified divorce procedure is regulated by Art. 34 Federal Law of November 15, 1997 No. 143-FZ

A spouse who wishes to dissolve the marriage receives a court decision on incapacity or declaring the other party missing. If we are talking about conviction for a crime, a sentence will be required. Without these documents, the application will not be accepted unilaterally.
A month later he receives a completed certificate of termination.

As for the second spouse serving a sentence, he is notified of the received application within three days. He is sent a notice with information about the date of termination and a request to inform him what last name he will remain with after the divorce.

Sample application

The application is filled out according to Form No. 11, approved by Order of the Ministry of Justice dated October 1, 2018 No. 201. What data will be needed:

FULL NAME. parties, dates of birth, passport details;
details of the marriage certificate;
registration addresses;
number of common minor children;
location;
the name and address of the correctional institution if the spouse is convicted;
information about the property manager of the missing spouse;
information about the guardian of the incapacitated husband or wife;
grounds for applying the simplified procedure;
date of compilation and signature.

Documentation

When contacting the registry office you will need:

passport;
marriage certificate;
a copy of the verdict if the husband or wife is convicted;
a copy of the decision if the spouse is missing or incapacitated.

Copies are made of the documents, and the originals are returned to the owner.

State duty

According to Art. 333.26 of the Tax Code of the Russian Federation, the state duty is 350 rubles. You can get a receipt for payment at the registry office, or look at them on the department’s website and pay everything in advance.

If you can’t come to the registry office

If one of the parties is unable to personally submit a joint application, the registry office will divorce only with mutual consent and the absence of common children. This is relevant if a person is in another city or prison and wants to get a divorce.

What should be done:

Prepare documents.
Fill out the application in the presence of a notary. It is subject to notarization (Article 33 of Federal Law No. 143.
Send an application to the registry office through a representative or by mail (registered mail with acknowledgment of receipt).

After a month, the second spouse needs to come to the registry office to register the termination of the marriage, after which he will be issued a certificate. The spouse filing a “single” application may have the certificate sent by mail or pick it up at a later date.

Sample application

In this case, the application is filled out using Form No. 10. It contains the following information:

FULL NAME. spouse;
information about yourself: full name, date, place of birth, nationality, place of residence, passport details;
details of the marriage document;
the surname that will remain after the divorce;
date of registration and signature.

Divorce through court

A unilateral filing for divorce through the court occurs when:

there are minor children in the family;
one of the parties categorically does not want to get a divorce.

It is better not to bring the divorce to court. It is recommended to do everything possible to peacefully resolve a family dispute. Otherwise, it will take a lot of time, effort and money, because a divorce sometimes drags on for months, and a court decision may turn out to be inconvenient for two spouses at once.

The claim can be filed at the place of residence of the defendant. The exceptions are the presence of minor children or illness of the plaintiff. In such cases, the plaintiff has the right to file an application at his place of residence.

Divorce cases can be heard by a magistrate or a district court.

Divorce in the Magistrates' Court

Unilateral dissolution of a marriage with children occurs in a magistrate's court in the absence of a dispute regarding them. The wife has the right to file a claim in any situation, but with regards to the husband there are some restrictions:

wife's pregnancy;
having a common child who is under 1 year old.

Example : After three years of marriage, a husband decided to divorce his wife. The wife spoke out against termination, since they have a child who is only 11 months old. In addition, at the court hearing it turned out that the wife was two months pregnant. Based on Art. 17 of the RF IC, the plaintiff’s claim was rejected.

The magistrate may try to try on the spouses. Basically, this happens when one spouse is against the divorce. A period of up to 3 months is allotted. If during this time the spouses do not reconcile, then the judge considers the case on its merits and makes a decision on divorce.

Is it possible to divorce a husband or wife without their consent and presence?

To the question of whether the consent of the second spouse is necessary, the answer from the legislation is clear: any citizen of the country, endowed with freedom by the Constitution of the Russian Federation, has the right to divorce , even if the spouse categorically disagrees. This rule is enshrined in the Family Code. Detailed conditions of the procedure are prescribed in Chapter. 4 of the RF IC, as well as in Art. 19 and 22 of the Civil Code of the Russian Federation. It is this kind of divorce that will be called unilateral.

It can be carried out both extrajudicially (through an appeal to the registry office) and judicially (through the court). In most cases, going to court is inevitable, since divorce through the registry office if the second spouse disagrees is possible only in strictly limited cases.

For what reasons and on what grounds is it possible to get a divorce through the registry office, and when you have to go to court, read here.

Unilateral divorce in district court

Termination of a marriage at the initiative of one of the parties in the district court occurs in 2 cases:

when there is a dispute regarding children under the age of majority;
when dividing common property worth more than 50,000 rubles.

The district (city) court may also set a deadline for reconciliation. If the spouses change their minds about getting a divorce, the court proceedings are terminated. If, nevertheless, one party insists, then the issue of residence and maintenance of children, payment of alimony, and methods of dividing common property is resolved.

After the court decision enters into force, the marriage is considered dissolved. The decision is handed over to the spouses in order to register the fact of divorce in the registry office and obtain certificates of divorce.

Example : A spouse at her place of residence filed for divorce in the district court. The plaintiff in the statement demanded the division of the joint apartment, payment of alimony in favor of their son and determination of his place of residence with his mother. The husband came only to the second meeting and refused to divorce. The court set a three-month period for reconciliation, which did not produce a positive result. As a result, the court decided to divorce the spouses, leave the son with his mother, and awarded him alimony. The apartment was divided into equal shares.

What can become grounds for divorce initiated by one party?

A marriage union between a loving couple is created voluntarily. Based on this:

arising intra-family conflicts, disputes, problems are resolved jointly, reaching mutual agreement;
Priority is given to the upbringing of the younger generation by both parents, who are obliged to take care of them and ensure their well-being.

The procedure for exercising the rights and obligations of the parties to a marriage relationship, its official registration and the dissolution of the family union (or recognition of its fictitiousness), and the resolution of other issues are established by family law.

To regulate relations between family members, the norms of the Civil Code can also be applied.

Based on the constitutional principles of freedom and equality of every person, the law allows the right to terminate a marriage, highlighting the following reasons for this:

physical death or declaration of one of the spouses as deceased (by the court);
the whereabouts of the husband or wife are unknown for a long period of time;
dissolution of the union by consent of both spouses, submitted jointly or on behalf of one of them;
a written request from the spouse's guardian if his incapacity is recognized by the court.

Marital relations, taking into account the totality of circumstances, can be dissolved:

peacefully, by submitting an application confirming the common desire of the former spouses to separate, through the registry office;
after court proceedings, obtain a decision and then document the divorce certificate.

Petition for divorce

How to file a divorce? The basis for starting divorce proceedings is a petition for divorce. It must be compiled according to all the rules. The claim must have the following content:

Formal part, where the following information is indicated

the name of the court where the trial will take place;
information about the plaintiff (full name, date of birth, place of residence, telephone number);
similar information about the defendant.

A descriptive part that contains information about:

date and place of marriage;
reasons for divorce;
the defendant's disagreement with the divorce;
the impossibility of living together in the future as husband and wife;
presence of joint children under 18 years of age. Their full names and dates of birth must be included.

The final part, where:

lists the provisions of the law that contain grounds for filing for unilateral divorce;
all petitions (for alimony, property);
list of attached documents.

At the end you should put the date, signature and its explanation.

The statement of claim is drawn up in 3 copies. The first one remains with the plaintiff; it must have a mark on it indicating that it was accepted by the court. The second one will be kept on file. The court sends the third copy to the defendant.

In the Kanashsky District Court Plaintiff: Ivanova Anna Nikolaevna, born 02/04/1990. Address: Cheboksary, st. Khuzangaya, 9-8. Passport details: 1234 567 890. Phone: 123-456. Defendant: Andrey Ivanovich Ivanov, born October 23, 1981, Address: Kanash, st. Victory, 34-89. Phone: 456-789. Cost of claim: RUB 1,550,000.

STATEMENT OF CLAIM for divorce and division of joint property

(or about collecting alimony, determining the child’s place of permanent residence, establishing a procedure for communicating with him).

The marriage with the defendant was registered on October 4, 2013 in the Civil Registry Office of the Cheboksary City Administration, registration number No. 378. During the marriage, a two-room apartment with an area of 59 square meters was purchased. m., which is located at the address: Chechnya, Kanash, st. Pobeda, 34, apt. 89. The certificate of ownership states that the apartment belongs to me and the defendant in equal shares, that is, 1/2.

We have not lived with the defendant since July 2021, and we do not run a common household. Further life with Ivanov I.A. is impossible due to his wild lifestyle (or the use of alcohol, drugs, assault, dissimilarity of characters, betrayal, child abuse, etc.).

Children were born in the marriage (their details). The claim should demand the collection of alimony, indicate the child’s place of permanent residence and the procedure for communicating with him.

The defendant does not agree to divorce because he does not want to share the apartment. But he won’t let me live there either. We cannot come to a consensus on the division of housing. The marriage contract was not concluded.

Based on what is written, guided by Art. 22 RF IC, art. 29, 131, 132 Code of Civil Procedure of the Russian Federation,

I beg:

The marriage between Anna Nikolaevna Ivanova and Andrey Ivanovich Ivanov, registered on October 4, 2013 in the Civil Registry Office of the Cheboksary City Administration, registration number 378, is dissolved.
Share an apartment located in Kanash, st. Pobeda, 34, apt. 89, by selling it, allocating 50% of the proceeds to Anna Nikolaevna Ivanova and Andrey Ivanovich Ivanov.
If there are other requirements, they should be indicated in a separate paragraph.

List of attached documents:

Copy of the claim - 2 pcs.
Marriage certificate.
Certificate of ownership of the apartment.
Receipt for payment of state duty.
Other documents supporting the claim.

Date: 06.11.2018 Signature of the plaintiff:

Documents for divorce proceedings

Divorce documents include:

an application filled out in a form to the court or registry office;
receipt of payment of the duty;
marriage certificate;
children's birth certificates;
a certificate indicating the defendant’s income.

In addition, you may need one of the following documents:

a court decision declaring a spouse incompetent, the address of his guardian;
verdict on the fact of being in MLS, address of the colony;
conclusion on declaring a spouse missing.

State duty for unilateral divorce in 2021

The state fee is not charged if the divorce of the marriage is requested by the guardian of the incapacitated party or the prosecutor.

The opportunity to get a unilateral divorce through the registry office will cost 350 rubles
If through the court, then the state duty is 600 rubles. This is the case when there is no division of property.
If there is one, then the amount of the state duty depends on the value of the disputed property. The law determines the minimum rate at 400 rubles, the maximum at 60,000 rubles.

Payment details should be filled out carefully; they must refer to the authority where the divorce will be carried out. It is better to go to the registry office or court and get a receipt from them. State duty is paid through:

bank branch;
Internet bank;
self-service banking terminal.

How long to wait for an official divorce

The timing of divorce is always individual. The method of divorce, the possibility of appealing a court decision, etc. should be taken into account.

For example, if the second participant in the divorce proceedings does not appear at the hearings or files a petition for reconciliation, the procedure may be significantly delayed.

But on average, court proceedings on these issues last no more than 3 months. The law gives thirty days to consider a claim, and another month to hold a meeting. Once a court order is issued, it comes into force only after 30 days.

In case of unilateral termination through the registry office, the procedure takes 1 month.

Is automatic divorce possible?

This possibility is provided for by law. To do this, it is enough for one spouse not to appear in court 3 times. It does not matter whether this failure to appear is intentional or not. However, the process may be complicated by the presence of common children or property to be divided.

To file a divorce in modern times, the will of only one spouse is quite sufficient. According to statistics, about 90% of divorce cases are successful.

Links to legislative acts

Article 31 of the Federal Law “On Acts of Civil Status”. Grounds for state registration of divorce
Article 34 of the Federal Law “On Acts of Civil Status”. The procedure for state registration of divorce at the request of one of the spouses
Article 35 of the Federal Law “On Acts of Civil Status”. The procedure for state registration of divorce based on a court decision on divorce
Article 19 of the RF IC. Divorce in the civil registry office
Article 22 of the RF IC. Divorce in court in the absence of consent of one of the spouses to divorce
Article 24 of the RF IC. Issues resolved by the court when making a decision on divorce
Clause 2, part 1, article 23 of the Code of Civil Procedure of the Russian Federation. Civil cases under the jurisdiction of a magistrate judge
Article 24 of the Code of Civil Procedure of the Russian Federation. Civil cases within the jurisdiction of the district court
Part 4, Article 29 of the Code of Civil Procedure of the Russian Federation. Jurisdiction at the choice of the plaintiff
Article 131 of the Code of Civil Procedure of the Russian Federation. Form and content of the statement of claim
Article 132 of the Code of Civil Procedure of the Russian Federation. Documents attached to the statement of claim
Subparagraph 5, paragraph 1, Article 333.19 of the Tax Code of the Russian Federation. Amounts of state fees for cases considered by the Supreme Court of the Russian Federation, courts of general jurisdiction, and justices of the peace

Terms of divorce without the presence of one of the spouses and without the participation of both parties

Theoretically, the timing of consideration of divorce cases is not affected by whether both spouses are present at the procedure, or only one, or whether they are both absent. The main thing is properly executed documents.

In practice, things may be different. For example, a divorce through a registry office still requires the presence of both parties, except in cases provided for in Art. 19 of the Family Code of the Russian Federation. The failure of one of the divorcing parties to appear may cause the divorce to be refused. If everything is perfect, the marriage will be dissolved 30 days after filing the application.

In court, the deadlines also do not change. With mutual consent of the spouses, confirmed by documents, a divorce can occur at the first meeting. The minimum period will be 1 month. It is enough just to submit a petition for consideration of the case without presence with notarized confirmation of consent to divorce or issue a power of attorney for your representative. The deadline is not limited, as in the case of direct participation of both parties in the process - it all depends on how quickly the court makes a decision on all controversial issues.

Divorce in Russia without the presence of one or both spouses in 2021 is possible if there are compelling reasons for failure to appear for the procedure. It is important that the necessary supporting documents are presented to the court before the first hearing, or at least at the beginning.