My husband doesn’t want to get a divorce: what to do, how to act? Cheat sheet for women whose stubborn husband does not want to get a divorce

Divorce is not a pleasant thing. Nerves, tears, grievances, and scandals often poison the last month of married life, even if the spouses have separated.

It is not easy to endure all this, but sometimes it is absolutely necessary. As a rule, women suffer more. According to statistics, they most often become the initiators of separation.

There can be any number of reasons for divorce Drunkenness and drug addiction, assault and cruelty, humiliation and constant reproaches are the extreme, most difficult options. Living in such conditions, especially if there are children in the family, is not just impossible. This should under no circumstances be done.

There are other, less radical reasons to officially end the marriage relationship:

• he fell in love with another;

• she met another person;

• husband is indifferent to his wife;

• she has stopped having feelings for him and is tired of living together.

Any of these reasons may be grounds for divorce. But what to do if the husband does not want to get a divorce?

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.

Legal restrictions

Current domestic legislation establishes a number of restrictions when a divorce will not work. However, they apply more to men.

So, if a husband wants to divorce when his wife is carrying a child or raising an infant for up to a year, then he will not be able to dissolve the marital relationship. If, under the same circumstances, a woman initiates the divorce, then she has the right to dissolve the marriage relationship, even if the husband is against it.

Thus, a woman has every right to divorce, even if she is carrying a child, owns part of the jointly acquired property, has common loan debts with her husband, etc. The spouse’s disagreement with the divorce complicates the procedure, but does not prevent it from being carried out.

Where to contact?

The application is submitted:

• to territorial civil registry offices in exceptional cases;
• to judicial authorities (magistrates' and district courts).

The grounds for choosing a specific divorce scheme depend on the presence of common children and the presence of special circumstances.

Contacting the registry office

As a general rule, registration of a divorce through the registry office is allowed only if there is no common child under the age of 18 in the family and if the second spouse agrees to terminate the marriage relationship.

If spouses have children, then even the consent of both parties does not give them the right to apply for a divorce to the registry office. Divorce in the presence of children is permitted only through the courts.

Conditions

To obtain a divorce through the registry office, the following conditions must be met:

• the spouses have no children together;
• both spouses agree to the divorce.

In order for a spouse, regardless of the consent of the other or the presence of children, to independently submit an application to the civil registry office, one of the following grounds is required:

• the second spouse must be officially recognized as legally incompetent;
• the second spouse is declared missing;
• a spouse who is absent or does not agree with the divorce is imprisoned for a term of more than three years by a court verdict.

Important! Each of these circumstances must be properly confirmed by a court decision. This document will need to be submitted simultaneously with the divorce application.

The unilateral procedure for terminating family relations through the registry office involves checking the presented grounds for filing an application, as well as providing a period for reconciliation or changing one’s decision.

The period after which the registry office carries out a divorce is 1 month.

If the applicant provides adequate evidence of one of the above circumstances, the consent of the other half will not be required.

Going to court

One of the most traditional questions asked to family lawyers by citizens is “Is it possible to dissolve a marriage without the consent of the second spouse if he avoids filing an application with the registry office?” Yes, you can, but not through the registry office (unless, of course, you have the circumstances described above).

This opportunity will be available only through the court, where the lack of consent of the marriage partner will have legal significance only for determining the general period for consideration of the case and reflecting the position of the dissenting spouse in the decision and case materials.

Important! As a general rule, divorce proceedings through the court will take place at the defendant’s place of residence. Exceptions are allowed for cases where the plaintiff lives with a young child or the defendant arrives at court at the place of residence of the defendant ill.

The legal basis for starting divorce proceedings through the court will be a statement of claim. Each spouse has the right to file a claim for divorce, however, Article 17 of the RF IC establishes certain restrictions on unilateral divorce for the husband.

Conditions

To go to court, any of the following circumstances must exist:

• the presence in the family of one or more children under the age of 18;
• objection of one of the partners to terminate family relations through the registry office;
• evasion of one of the spouses from submitting a joint application to the civil registry office.

Disputes about the future fate of children are important for establishing the jurisdiction of the dispute.

1. If there is no dispute about the children, the spouse who wants a divorce needs to file a claim in the magistrate’s court.
2. If the child’s parents have not decided with whom the child will remain and how his or her upbringing will be carried out, they must contact the district court.

When is divorce possible through the registry office?

A simplified divorce procedure through the registry office is possible if the husband is found guilty of committing a criminal offense and is serving a sentence of three or more years. Even if the husband does not want to divorce, the woman in this case has the right to gain freedom without trial.

To do this, she needs to pay a state fee of 350 rubles, write a statement to the registry office and attach a copy of the verdict to it. The marriage will be annulled without the consent of the spouse serving the sentence.

Other grounds for obtaining a unilateral divorce through the registry office using a simplified procedure are:

• recognition of the husband as missing;

• recognition of the husband as incompetent.

In this case, there will be no problems with a unilateral divorce.

When it is impossible to get a divorce if one of the spouses is against it

In the cases specified in Art. 17 of the RF IC, it will be impossible for a husband to obtain a divorce without the consent of his wife.

These exceptional circumstances include:

• wife's pregnancy;
• presence in the family of a common child under the age of one year;

The one-year period from the moment of birth of the child is also relevant for cases where the child was stillborn or died some time after birth.

These restrictions are related to the need to provide social and material guarantees for a wife who is obviously dependent on her marriage partner due to pregnancy and raising a newborn.

Specified in Art. 17 of the RF IC, circumstances can become known to the court only after the wife has sent an objection to the claim, since the plaintiff is not obliged to indicate these circumstances. For this reason, the court may accept the application for proceedings, and subsequently refuse to consider it.

As supporting documents, the defendant must attach the child’s birth certificate or a medical certificate from the antenatal clinic.

Consent to divorce in such circumstances will be not only a written document addressed to the court, but also the absence of objections (if the defendant was properly notified of the trial).

For the court, the wife’s consent can be formalized in the form of a response to the statement of claim for divorce, or the wife can verbally declare her consent to the divorce during the court hearing. In any case, to get a chance to get a divorce, you should obtain the consent of the mother of a young child in advance.

Pay attention to the additional material: Divorce without the consent of the husband.

Is it possible to get a divorce without consent?

Is it possible to get a divorce without the consent of the husband? It is stated in Chapter 4 of the Family Code of the Russian Federation. In Art. 16 states that divorce proceedings can be initiated jointly by spouses or individually by only one partner without the consent of the other.

Article 17 establishes restrictions under which the husband does not have the opportunity to initiate divorce proceedings. But such rules do not apply to women. The wife has the legal right to file for divorce at any convenient time. And this can be done if the spouse does not agree with such a decision.

What documents are needed for divorce without the consent of the spouse?

If there are no children

• statement of claim;
• a copy of the claim for the defendant;
• receipt of payment of the duty (in the original);
• copy of the passport;
• a copy of the marriage certificate or certificate of its conclusion;
• certificate of the defendant’s place of residence.

All documents, except information about the state duty, are provided in copies. If the plaintiff does not plan to appear at the hearing and cannot show the original documents to the court for review, the court may request certified copies of the documents.

If there are children

1. Statement of claim.
2. A copy of the claim for the defendant.
3. Original receipt of payment of the duty.
4. Copies of: passports, marriage certificates, child birth certificates.
5. Certificates of residence of the defendant and children.
6. Other documents confirming what is stated in the claim: evidence of expenses for children; information about bringing the second spouse to any responsibility; other data.
7. Certificates of income of the spouse; information about expenses for children - upon proof of the need for the child to live with one of the spouses.

All documents must be submitted in duplicate, as they will be sent to the defendant along with the claim. There is no need to submit two copies of the documents that the defendant has.

Documents are submitted in copies; if the plaintiff does not plan to participate in court, it is advisable to notarize the copies. Otherwise, the court will postpone the hearing of the case and request original documents if there are doubts about the correctness of the specified information.

Required documents

In order to file a divorce without the consent of the spouse, it is necessary to collect a certain documentary portfolio. According to Art. 131, 132 of the Code of Civil Procedure of the Russian Federation, it includes the following list of documents:

1. a statement of claim, which indicates the reasons for breaking the marriage bond: formally - upon reaching an agreement on all points and in more detail if there are disagreements;
2. marriage certificate (original or notarized photocopy);
3. children's birth certificates (if available);
4. an official document confirming the unattainability of the marriage partner (when a divorce is proposed through the registry office);
5. receipt of payment of state duty;
6. passport of the plaintiff himself or an authorized representative.

Additionally, they may require a certificate of family composition. If any other documents were drawn up regarding the divorce without the consent of the spouse (about the division of property, payment of alimony, etc.), then they are also provided.

Attention

It is advisable to start preparing documents long before you intend to inform your spouse about the divorce. Often, in case of disagreement, all sorts of obstructive actions begin on his (her) side, including damage to important documentation. But even in such a situation, you can safely go to court with a claim, giving explanations about the absence of certain papers. Then the judicial authority has the right to forcefully demand them from the defendant.

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

1. Determining the grounds for going to court. An attempt to resolve the issue of divorce voluntarily.
2. Preparing a statement of claim and collecting the necessary documents.
3. 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.
4. 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.
5. Making a court decision.
6. The period for appealing the decision, after which the decision comes into force.
7. 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.”

How long does the trial last and what happens next?

After a divorce claim is filed in court, it may take at least a month before a decision is made to dissolve the marriage. The judge may increase this period at his discretion to three months to give the spouses an opportunity to reconcile. A party who does not want a divorce can also ask the judge to allow time to restore the marriage.

At the end of the period given by the judge, the marriage is dissolved, and an extract from the court decision is transferred within three days to the registry office in which the marriage took place. The parties to the divorce proceedings will need to appear at the registry office, present the court decision and obtain divorce certificates.

Participants in divorce proceedings do not have the right to create new families until they receive documents on the dissolution of the marriage union.

The initiator of a divorce needs to keep in mind that divorce without the consent of the second partner is always a long process, so you should be patient and not count on a quick divorce.

How to get a divorce if one of the spouses does not agree and there are children

Most often, divorce when the spouse disagrees and there are children is accompanied by a dispute about the future of the child. If the spouse does not want to get a divorce and is against ending the marriage, it will hardly be possible to peacefully resolve the issue of the child’s place of residence.

In this case, the dispute will be considered in the district court while simultaneously clarifying the issue of the children’s future and establishing their place of residence. Disagreement is the key factor complicating divorce.

If the spouses agree to the divorce and if there are children, the divorce would be carried out within 1 month through the magistrate's court, and in the event of a dispute about children, the hearing of the case could drag on for at least 2 months. Not counting the time frame for the decision to come into force.

Procedure, algorithm of actions

Simplified, the procedure for divorce without the consent of the spouse if there are children is as follows:

1. Negotiations with the second spouse, an attempt to agree on a voluntary divorce.
2. Preparation of a claim, collection of documents and evidence;
3. Filing a claim in court in person or through the reception desk;
4. A court hearing during which the following is possible:
   Request for information and documents by the court;
5. Appointment of a forensic psychological examination to determine the child’s attachment to each of the parents;
6. Sending letters rogatory to interview a spouse living in another city/country;
7. Postponement of hearings due to the absence of the second spouse.
8. Adjudication;
9. Time limit for entry into force or possible appeal.
10. Appeal of the decision for execution through the registry office.

Important! Each case is individual. And the possible nuances of divorce in each case may be different. Consult a lawyer to determine all relevant circumstances.

Procedure

General and specific conditions for starting a judicial procedure for dissolving marital relations with children are established by the Family Code of the Russian Federation.

If there is a dispute about children and the spouse categorically disagrees with the divorce, the judge needs to find out:

• who provides child support;
• with whom will it be better for the child to live;
• which parent the child is most attached to;
• whether the child’s communication with the second parent leaving the family will be detrimental.

In some cases, a forensic psychological examination may be required. The court raises the substance of the issues before the experts individually for each case. Taking into account the wishes of the parties.

Regardless of the consent of the spouse, the court is in any case obliged to accept the application and initiate a civil case. However, during the court hearing facts may be revealed that may lead to the denial of the claim.

For example, the wife’s pregnancy and her disagreement with the divorce under Art. 17 RF IC. Read more about this in a separate article.

The best way to solve this problem is to try to reach an agreement with the child's mother. If a father expects to leave a young child with him, he must prove the ability to provide the most comfortable living conditions, as well as guarantee unhindered communication with the child from his mother and close relatives.

If the court determines that it is impossible to reconcile the spouses, the court determines the circumstances significant for the future life of the child and dissolves the marriage, simultaneously determining the place of residence of the minor family member.

Statement of claim

The claim is drawn up according to the rules of Art. 131-132 of the Code of Civil Procedure of the Russian Federation and contains both standard data relevant for any application for divorce, and individual data applicable to divorce without consent in the presence of children.

The statement of claim must reflect:

1. Name of the court, full names of the parties and addresses;
2. Information about the circumstances of the dispute: date of marriage; information about the actual termination of the relationship; information about children (full name, date of birth, place of residence);
3. Reasons for divorce;
4. Information about the disagreement of the second spouse;
5. Information about the position on the issue of children, whether the consent of the spouses has been reached at their place of residence.
6. Date, signature, list of attached documents.

The application can be submitted either in person through the court reception or sent to the court by registered mail. If you have an electronic signature, you can submit documents electronically.

Sample statement of claim

This sample claim reflects a fairly simple situation regarding divorce in the presence of children and in the event that the spouse does not agree.

In practice, disputes of this kind are often complicated by the collection of alimony and division of property. The law does not prohibit combining them in one statement of claim, but in practice such large-scale cases can drag on for several months.

To clarify all factual circumstances, it is strongly recommended to consult with an experienced lawyer. Our website specialists are ready to advise you right now and completely free of charge.

State duty

The amount of the state fee for a divorce in the presence of children and if the spouse does not consent does not differ from the consideration of a claim for divorce, not complicated by such circumstances.

600 rubles - this is exactly how much you need to pay the state fee when filing a claim. This fee is the same for all divorce claims.

You will have to pay additionally only if the divorce claim contains other requirements:

• on the division of property - according to the rules for calculating the duty for claims of a property nature, set out in Art. 333.19 Tax Code of the Russian Federation.
• on determining the place of residence of children or the procedure for communicating with them - 300 rubles for each request.

Also, a fee of 150 rubles will be collected from the defendant if a claim for alimony is filed. Plaintiffs in this category of cases are exempt from paying it.

Important! The document confirming payment of the fee must be submitted strictly in the original. If the amount was deposited via Internet banking, you need to contact the bank office for a confirmation document certified by a seal.

Legal practice

It is expected that the defendant will be notified of the court date. However, in practice, divorce without consent can also be carried out in absentia. Sometimes this leads to difficult situations.

So, for example, a woman applied to one of the law firms, claiming an inheritance from her deceased husband. During the consideration of the case, it turned out that shortly before his death, the man, without the knowledge of his wife, divorced her. This decision was challenged. Moreover, the death of the plaintiff was recognized as the reason for the termination of the case.

Sometimes the defendant does not come to court due to simple laziness. Such a case was recorded in Elektrogorsk, Moscow region. The woman was divorced from her husband, who did not appear for the summons and, accordingly, at the hearing, in absentia. The child remained to live with her, and the husband was ordered to pay alimony.

Selling an apartment after divorce without the consent of the husband or wife

If the apartment was purchased by spouses together, it is considered joint property. Therefore, when implementing it, the written consent of the second party will be required, regardless of who the living space is registered to.

Attention

According to Article 253 of the Civil Code of the Russian Federation, the second spouse has the right to challenge the purchase/sale transaction if it is proven that the buyer was aware of the wife’s (husband’s) disagreement.

The approval of the ex-spouse is not required when selling an apartment in the following cases:

1. If the apartment was purchased before marriage.
2. Received as a gift, by inheritance or privatization.
3. Purchased with funds received as a gift, inheritance, or sale of property acquired before marriage.
4. It was purchased using Maternity Capital.