Divorce without the consent of the spouse

Building a strong family is hard work, but sometimes marriages and relationships don't survive. Breaking up when you have children is always more difficult. It is not easy for ordinary people to understand the legal aspects of divorce. It is advisable to consult with an attorney in person or online to know your rights and responsibilities. To dissolve an official union, the desire of both parties is not always required - Russian legislation provides for divorce without the consent of one of the parties. In order for this procedure to be successful, it is important to be “savvy” in this matter and coordinate your actions with a lawyer. Let's consider how to obtain a divorce without the consent of the spouse and what options for this procedure are provided for by the Law.

Unilaterally through the registry office

A wife can file for divorce without the consent of her husband, that is, unilaterally, by submitting an application to the civil registry office (see Article No. 19 of the RF IC). This decision on the part of the woman is made for good reason due to one of the following problems:

the whereabouts of the spouse are unknown;
the husband is in prison where he has to serve a sentence of more than three years;
the spouse has officially received the status of an incapacitated person;
the husband is declared dead or missing.

Only such circumstances allow you to file for divorce through the registry office; in other situations, an application for divorce without the consent of the other party is submitted to one of the judicial authorities and the process will be carried out in court.

What to do if your husband does not give a divorce if you have a child?

It is not difficult to find out how and in what body a marriage with a husband is dissolved if there are children together, but this does not make the problem of divorce itself any easier, and the point is not even in the legal, but rather in the moral aspect. It is very difficult for a small child to accept the fact that the closest people no longer want to be around.

It’s not so hard if the husband abuses alcohol and bullies his family members, then it may be easier for a son or daughter to treat his mother’s decision with understanding and respect. But if the child’s relationship with his father consisted mainly of bright moments, it is difficult for him to explain why his father will no longer live nearby.

It seems that, despite all the negative emotions that parents experience, it is the child who bears the main psycho-emotional burden from the situation that has arisen.

Where can I divorce my husband if I have a child?

The upcoming breakup, be that as it may, still causes fear among men and women who have decided to separate. The situation is even more tense because they have a common young child. In situations where the husband and wife did not have time to have children, the end of the marriage takes place with much less stress.

To end a marriage, all you need to do is go to the registration authority and write a corresponding application.

However, if a married couple has children, only the judicial authorities can release them from marriage.

A woman, unlike her husband, can begin the divorce process whenever she wishes:

When there is no conflict regarding the upbringing of children, the wife should contact the magistrate with a request to end the marriage;
If the spouses were unable to reach an agreement about the children, then their demand should be addressed to the district court.

To end the marriage as soon as possible, the application must include the following information:

When was the marriage concluded?
Do the family have common children?
Which parent will live with the child, and if there are several of them, do the mother and father intend to share the children?
What was the reason for the decision to break up?

It must be taken into account that after children turn ten years old, the law gives them the right in court to express their point of view regarding which parent they want to stay with.

Divorce without husband's consent if there is a child

To end a marriage in which a common child was born and if the husband does not consent to divorce, at the request of the woman, you should resort to help:

Justice of the Peace, if the issues regarding the children are settled;
District or city courts, if there is a requirement to resolve the issue of with whom the child will live.

If one of the parties does not agree to end the marriage, the judge will usually give the couple no more than three months to reflect on their decision and possibly change their mind about getting a divorce.

If this period has expired and no truce has occurred, the marriage relationship will be terminated, even if one of the parties still expresses disagreement.

The procedure for divorce without the consent of the husband

The requirements for a claim for the termination of a marriage are set out in detail in Articles 131-132 of the Civil Procedure Code of the Russian Federation.

The application must include the following information:

Name of the judicial authority and details of the parties with exact addresses;
Information about the facts that became the reason for applying for divorce;
Evidence and arguments to support your position regarding the termination of the marriage;
In the petition part, briefly and as clearly as possible state the stated demands for divorce, alimony payments, etc.

You can use the divorce petition form located here.

If the application meets all the conditions, it is accepted for proceedings with the appointment of a subsequent hearing, of which the parties are notified.

Information about where and when the court hearing will be held is brought to the attention of participants by sending court summonses. It must be borne in mind that he will be appointed no earlier than a month has passed from the date the application with the documentation attached to it was submitted to the court office.

During the trial, the parties are asked questions in order to find out how the marriage relationship proceeded, why there was a desire to end the marriage, and whether there is a possibility of saving the family.

Based on the information received, the judge will either agree to the request to end the marriage or decide to provide time for the husband and wife to reconcile.

Having considered the application, at the end of the court hearing the judge may decide on:

Satisfying requirements;
Refusal of stated requirements;
On postponing consideration for the time given to husband and wife for the purpose of reconciliation.

How does the divorce process work?

What you need for a divorce if you have children, read here.

How to obtain a divorce certificate, read the link:

If by the time this time expires, the conflict between the couple ceases, the judge will close the case.

If a judicial act terminating a marriage is adopted, after it has acquired legal force, a copy will be given to each of the participants personally to transfer it to the registration authority, where a certificate of divorce will be prepared and issued.

How does the divorce procedure work?

No matter how hard the husband tries to delay the dissolution of the marriage relationship and how much he tries to express his disagreement, the union will still be dissolved and it is only a matter of time.

How to prepare a divorce claim

An application for divorce without the written or oral consent of the spouse must have the following mandatory components:

Name of the judicial authority, including address.
Full name of both spouses, date of birth and registered address of each.
Personal information about children, if available.
Information about the date of marriage.

The descriptive part of the document sets out the facts necessary for the court to consider the case. Filling out the form thoroughly and completely will allow the court to begin its work. In free form, a woman must succinctly describe the reason for wanting to divorce. This could be: cheating on a husband, violence - physical or psychological, lack of help and support, and others. It would be good if there are any certificates and papers confirming the stated facts. In the claim document for divorce without the consent of the spouse (for the magistrate’s court), the filing party must indicate under what conditions an agreement was reached on the issue of child support and division of property.

How to get a divorce if one of the spouses does not agree to the divorce and there are no children

To do this, you need to go to court, prepare the appropriate claim, take part in the court hearing and wait for the court decision to enter into force.

Procedure and algorithm of actions

Determining the grounds for going to court. An attempt to resolve the issue of divorce voluntarily.
Preparing a statement of claim and collecting the necessary documents.
Filing a statement of claim to the court at the place of residence of the defendant or, at the choice of the plaintiff, if a minor child lives with the plaintiff.
Consideration of the claim. Participation in the court hearing is not necessary, but in order to fail to appear in court, you must notify the judge and file a corresponding petition.
Making a court decision.
The period for appealing the decision, after which the decision comes into force.
Applying to the registry office with a court decision to obtain a divorce certificate and registering the divorce in final form.

How the process works

The process of divorce without the consent of the spouse and in the absence of children is most often complicated by the failure of the second spouse to appear in court. He may either deliberately interfere with the divorce procedure or, for good reason, not have the opportunity to attend the court hearing.

Circumstances that can be recognized as valid reasons for divorce in the absence of a spouse are recognized:

long-term absence from the place of residence (service in the Armed Forces, business trip, etc.);
presence of a serious illness;
territorial distance from the location of the court.

If the defendant files an objection to the claim in court, the court has the right to provide the parties with time for possible reconciliation. The maximum period of such a procedure cannot exceed three months, but for this there must be compelling reasons and clear signs that the family can be saved. The plaintiff's categorical unwillingness to continue the marriage is the decisive factor.

If the court makes a judgment in absentia, the absent spouse will be able to file a complaint against it after actually receiving a copy of the judicial act within seven days.

The basis for such a cancellation will be the presence of circumstances that, if the spouse were present in court, could influence the decision.

The reasons why the defendant may not be notified of the time of the hearing may be different:

change of residence without notifying the court and the second spouse;
deliberate failure to appear in court and to receive court notices;
other objective and subjective circumstances.

The issuance of a court ruling will be the basis for applying to the registry office, where the termination of family relations will be officially registered.

Read more about the procedure for divorce through the court here.

Statement of claim

Submission of documents to the court is carried out according to the general rules of legal proceedings in civil proceedings, prescribed in Art. 131-132 Code of Civil Procedure of the Russian Federation.

The application must be drawn up in writing and sent to the court at the defendant’s place of residence (except for cases where the initiator of the divorce is given the right to choose jurisdiction).

The content of the application must include the following points:

name and address of the court, personal data of the parties;
an indication of current family relationships and the date of their official registration;
reasons for divorce;
an indication of the existence of grounds preventing the termination of family relations through the registry office;
an indication of the absence of children, the absence of any other disputes;
request for divorce.

The court must indicate at least the formal reason for the divorce, and the basis for going to court will be the lack of consent of the partner or his evasion of appearing at the registry office for a voluntary divorce.

The claim is filed in person in court or sent by mail or registered mail.

Important! From January 1, 2021, it is possible to file divorce documents electronically, but this will require a valid digital signature.

Sample application

The presented sample claim for divorce without divorce consent is exemplary in nature and is intended for informational purposes only. It does not reflect the most difficult situations, such as a dispute about children or determining the place and order of their residence with their parents.

Only an experienced lawyer will be able to correctly determine all the individual features of your case. Contact our legal experts for a free online consultation now!

You can download a sample claim for further editing using the link below.

State duty

The amount of state duty payable when filing a claim for divorce is 600 rubles and is fixed.

Additionally, you will have to pay a fee if claims for division of property are made. The division of property is a requirement of a property nature and the fee for its consideration will be calculated according to the rules for property claims in Part 1 of Art. 333.19 Tax Code of the Russian Federation.

Important! Payment of the state fee is carried out by the applicant according to the details of the court to which he is applying. They need to be clarified directly in the court where you are going to apply.

Read more about costs in the article “Cost of divorce in 2021 in Russia.”

What is the procedure for considering divorce in court?

After checking that all documents have been filled out correctly, the court begins to consider the petition. To dissolve a marriage without the consent of the spouse, you will need to attend a court hearing on the appointed date. The paperwork is considered for at least a month from the moment the woman decides to file a petition for dissolution of the marriage.

The spouse will also be notified of the date of the hearing. During the hearing, the judge asks the spouses questions regarding the reasons for the divorce, finds out whether an agreement has been reached between the husband and wife regarding the further maintenance of the children, including the payment of alimony and the place of residence of the offspring.

The judge also interviews the spouses regarding an agreement between them regarding the division of common property. The judge, with the help of leading questions, determines whether it is possible to save the family.

Can they get divorced without the consent of one of the spouses?

Yes, lack of consent is not an obstacle to divorce. After all, how can you save a family if one spouse wants to end all relationships, and the other is against it?

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

No one has the right to force spouses to live together. The law allows the consent of the spouse to be taken into account only if there is a child under 1 year of age - in this case, the child’s mother has the right to “veto” the divorce.

Unlike divorce by mutual consent, the process of dissolving a marriage without the consent of one of the spouses will simply be longer and more complex. When ending a marriage through court, the judge will carefully assess the chances of reconciliation between the spouses and may give time for reflection.

In general, the termination of a marriage in this case can take from 2 to 4 months, depending on the circumstances of the case.

Advice for women on divorce

Both men and women make mistakes during divorce, but the mistakes wives make are mostly related to financial problems.
Many, when filing a claim for dissolution of the union, have absolutely no idea about family assets and debts. A woman simply urgently needs to find out about the financial situation of her family. If you have joint credit cards, you need to find out whether the debts on it have been paid off, since according to the law, all joint debts during a divorce are divided in half between the spouses, along with financial assets. No matter how difficult the division of family assets may be, it is important to “get to the bottom” of the truth, since future financial security will depend on many facts. Divorce without children without the consent of the husband is quite possible. You should always consult with an attorney regarding any family law issues.

Recommendations from psychologists: behavioral tactics

Despite the lack of mutual understanding and reluctance to put up with the marriage, the wife can help achieve a common opinion regarding the future fate of the couple and the conditions for further interaction in relation to growing dependents.

Psychologists advise using techniques that promote mutual understanding and the husband’s acceptance of his wife’s position, taking into account the presented arguments. The best conditions for divorce are the conviction of both parties that it is impossible to continue family life.

Desirable measures on what to do if the husband does not give a divorce include identifying the real reasons for refusing a divorce. It is necessary to discuss financial issues, determine property claims, and the procedure for communication between the husband and children in the post-divorce period. It is quite possible that after resolving the issues of interest, the husband will reconsider his attitude towards the upcoming event and make a decision that suits both of them.

Sometimes the reason for reluctance lies in the inability to live independently, when a man is dependent on his wife and risks losing favorable conditions for himself. In this case, a woman should reconsider her attitude towards the currently existing order, refuse to provide for, participate in the life of her husband, change her own behavior, showing herself from the negative side.

It is difficult to choose universal ways to get a divorce, since each person is individual and the reasons for disagreement with divorce can lie in completely different areas.

Where to go

A marriage can be dissolved in two ways:

Administrative (through the Civil Registry Office)
Judicial (through the magistrate, or ordinary, city or district court)

Administrative is available only to childless couples (or those whose children are already adults), and with mutual consent. In all other cases, going to court is inevitable, with the exception of three cases directly regulated by Article No. 19 (clause 2) of the RF IC.

We are talking about a situation where it is impossible to obtain the consent of the other spouse for a divorce, or his consent and disagreement do not matter. Namely:

The husband has gone missing. This fact must be confirmed by the court. He makes a decision to recognize the citizen as missing or (after a certain time) to recognize him as dead.
The spouse is incapacitated. That is, in court a person is recognized as incapable of realizing the meaning of his actions, making decisions, and bearing responsibility for them.
The spouse committed a criminal offense and received a long term of imprisonment (from 3 years) as punishment.

If these circumstances exist, you should submit a unilateral application for divorce to the registry office, simultaneously presenting a document proving their existence. This could be a court verdict or a court decision on disappearance, death, or recognition as incompetent.

The magistrate's court makes decisions on divorces if there are no disagreements between the spouses regarding the division of property, financial support for children, or the procedure for communication with them by the divorced parent.

If one of the spouses does not agree to divorce, there are definitely disagreements. Therefore, you should apply exclusively to the city or district court.

Advice from psychologists

Experienced psychologists give the following advice to women whose husbands demand a divorce:

Pay more attention to current household and financial problems.
Don’t forget about live communication, spend time with friends and family. This is very good for your nerves.
Don't be afraid to consult a psychologist at the first signs of depression.
Show emotions, don’t try to push them deep into yourself. Just try to do this in such a way that other people do not suffer from outbursts of anger or sadness.
Try to become a little better and analyze the mistakes you have made. Find a new hobby, read interesting and useful books, try to learn a foreign language or master new professional skills.
Take care of your health and appearance. Join the gym, go to a beauty salon, update your wardrobe.
You shouldn’t try to start a new strong relationship, but an affair or a lover will really help you switch gears and forget about your sorrows.
If you have a child, surround him with attention and care.
Try to understand exactly why your husband is divorcing you. If you see your fault in what happened, don’t dwell on it, but try to correct your mistakes and not let them ruin your next relationship.

The behavior of a woman who has decided to leave.

If sincere feelings have disappeared between spouses, leaving only a habit, then such a relationship can be disastrous for both. Therefore, divorce may be the only right decision. Such separation is usually painless.

When a husband wants to get a divorce and his wife suspects this, she needs to prepare in advance for a conversation about divorce in order to be as calm as possible at this moment. And then don’t give in to panic and be objective in your own decisions. After all, after a divorce, a woman has a choice: depression or a new happy life.