What are the legal consequences of divorce?

Divorce: concept, moment

Divorce is one of the grounds for ending a marriage and differs from others in that it occurs by will:

husband or wife;
or both spouses,
or guardian of an incapacitated husband or wife.

Divorce can be carried out:

In the civil registry office (registry office), when there is consent of the husband and wife and there are no minor children.
Court, when spouses have children under 18 years of age, or one of the spouses does not agree to terminate the relationship. Read more in the article How is divorce carried out in court?

Depending on the body that carried out the divorce, the moment of termination of the marriage in accordance with Art. 25 of the Family Code of the Russian Federation (hereinafter - FC) is:

registration of divorce in the civil registration book;
entry into force of the court decision (in this case, the court decision is sent to the registry office to register the divorce).

In any case, until a divorce certificate is received, the ex-husband and wife do not have the right to enter into a new union.

End of marriage

The termination of a marriage entails the termination of marital relations, both personal non-property and property arising from the marriage, for a future period of time. Only those relationships that are provided for by law and determined by the spouses or by a court decision can retain legal force. The dissolution of a marriage differs from the annulment of a marriage:

firstly, the reasons;

secondly, the circle of persons who can initiate these procedures;

thirdly, the procedural order of registration;

fourthly, certain types of consequences;

fifthly, the time of onset of consequences.

To conduct a comparative analysis of these conditions, it is necessary to study the features of the termination of marriage.

Grounds for termination of marriage

, according to Art. 16 of the RF IC are:

1) death of a spouse;

2) declaring the spouse deceased in court;

3) divorce.

In the event of the death of a spouse or declaring him deceased, no special registration of termination of marriage is required. Termination of marriage is confirmed by a death certificate

, which is issued by the registry office in accordance with Chapter. VIII Federal Law “On Acts of Civil Status”.

The grounds for declaring a spouse dead are established by Art. 45 of the Civil Code of the Russian Federation. The procedure for declaring a citizen dead is regulated by Ch. 30 Code of Civil Procedure of the Russian Federation. The day of death of a citizen declared dead is the day the court decision to declare him dead comes into force.

If a citizen who has gone missing under circumstances threatening death or giving reason to assume his death from a certain accident is declared dead, the court may recognize the day of death of this citizen as the day of his alleged death. From the moment the court decision enters into legal force, the marriage with the spouse declared dead is considered terminated.

In some countries there is no institution for declaring a citizen dead, for example in the UK. But for the purpose of dissolving a marriage, the law there allows for the recognition as dead of a person who has been missing for seven years.

According to Art. 26 of the RF IC, in the event of the appearance of a spouse declared dead, the marriage can be restored by the registry office upon a joint application of both spouses, subject to the cancellation of the court decision declaring him dead. If the other spouse enters into a new marriage, then restoration of the marriage is impossible. Article 42 of the 1969 Code of Law of the Russian Federation of the RSFSR also provided that in the event of the appearance of a spouse declared dead in accordance with the procedure established by law, and the cancellation of the corresponding court decision, the marriage is considered restored if the other spouse has not entered into a new marriage. In this case, the consent of the other spouse was not required.

Restoration of marriage means that the legal consequences that arose from the moment of marriage did not cease. For example, property acquired during the absence of a spouse is common joint property, unless otherwise provided in the marriage contract. Children born in such a marriage are subject to the presumption of paternity of the mother's spouse.

In the event of the death or declaration of a spouse as missing, the marriage cannot be dissolved, and if the marriage was previously dissolved, then the consideration of the case in an appeal, cassation or supervisory procedure is subject to termination in accordance with Part 6 of Art. 220 Code of Civil Procedure of the Russian Federation. The court terminates the proceedings if, after the death of a citizen who was one of the parties to the case, the disputed legal relationship does not allow legal succession <1>.

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<1> See, for example: Determination of the Supreme Court of the Russian Federation of August 16, 2005 N 1-B05-8 // ATP “ConsultantPlus”.

Another basis for ending a marriage is its dissolution

. The possibility of divorce is provided in most countries. In some of them, where religious traditions are strong, only in the 20th century. such a possibility was legislated (often on the basis of a national referendum); for example, in Ireland in 1995 a corresponding referendum was held. The Vatican still maintains the principle of absolute indissolubility of marriage. In Israel, divorce can only be accomplished by mutual consent of the parties; without such consent, a marriage cannot be dissolved even by a court decision. If the wife does not want a divorce, the court may simply allow her husband to remarry, since the Torah (Pentateuch in Judaism) allows polygamy.

Divorce of a marriage, in contrast to other natural grounds for its termination, occurs solely at the will of the spouse (spouses) or the guardian of the spouse recognized as incompetent in accordance with
paragraph 2 of Art.
16 IC RF. Divorce entails the termination of personal and property legal relations between the spouses. Everything that spouses acquire from the moment the court decision enters into legal force is their separate property.

Determining the reasons for divorce, G.F. Shershenevich o <1>. On the other hand, divorce entails the emergence of quite negative aspects that necessitate such detailed regulation of this process by law. As noted by A.I. Zagorovsky, this is due, “firstly, to the fact that marriage is essentially a lifelong union, and therefore, its dissolution is a kind of anomaly; secondly, with the fact that divorces have a particularly detrimental effect on the fate of children, depriving them of their family - this natural, given by nature itself, their nursery; thirdly, by the fact that during a divorce it is especially difficult to determine which of the divorced parents should have children - the father or the mother, whether it is exclusively the innocent parent in the divorce or, under certain conditions, also the guilty one, or even in front of a stranger" <2>.

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<1> Shershenevich G.F. Decree. op.

ConsultantPlus: note.

Fragment of the book by A.I. Zagorovsky “Family Law Course” is included in the information bank according to the publication - “Family and Housing Law”, 2006, NN 3, 4; 2007, NN 4, 5; 2008, NN 1, 2, 3, 4, 5, 6; 2009, N 1.

<2> Zagorovsky A.I. Family law course. pp. 89 - 90.

The possibility, grounds and procedure for divorce vary in different periods of the history of different countries and depend on the culture of the people, the role of religion and understanding of the nature of marriage. There have been periods in human history when divorce was prohibited or limited. Until now, in some Muslim countries, women are limited in their right to divorce. In this regard, I would like to agree with the opinion of the famous Russian civil law expert I.A. Pokrovsky that “by forcing spouses, even against their common desire, to continue marital cohabitation, the state does not exalt, but destroys the idea of marriage and, as a result, comes into sharp conflict with developed personal morality. For persons with subtle moral sensitivity, marital cohabitation without reciprocal love from the other spouse is unbearable, and if the state nevertheless orders the continuation of this unbearable cohabitation, it commits the most severe moral violence against the individual” <1>.

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<1> Pokrovsky I.A. Main problems of civil law. Pg.: Legal. book warehouse “Pravo”, 1917 // SPS “Garant”.

The procedure for divorce was already known to the legislation of Ancient Rome. A cum manu marriage could be dissolved by the will of the husband or his paterfamilias, and a sine manu marriage by the will of the husband or wife or by their agreement in marriage. Freedom of divorce was one of the main principles of Roman marriage law. There were no restrictions on entering into a new marriage.

The Christian religion has traditionally regarded marriage as a sacred and eternal concept. Marriage carried the idea of the moral obligation of the spouses to each other. The Christian idea was that the difficulties of married life do not diminish the value of the union, but add additional meaning to it. Practically the only ground for divorce in Rus' was adultery <1>. At the same time, the husband was considered a violator of marital fidelity only by entering into a relationship with a married woman, and the wife - by being in connection with any man. The adultery of a wife was considered so much more criminal than the adultery of her husband that the husband, according to ancient Roman, as well as ancient Greek and Jewish law, not only had the right, but was also obliged to divorce his unfaithful wife; according to Greek law, a husband had to leave his wife caught in adultery if he did not want to bring shame upon himself. In our church practice, compulsory divorce due to a wife’s adultery was prescribed for clergy <2>. Over time, other grounds for divorce in Rus' on the initiative of the spouse began to include the following:

- if the wife, against her husband’s will, feasted with strangers or washed with them in the bathhouse;

- if the wife visited the circus, theater or amphitheater without the knowledge or consent of her husband;

- if the wife, against her husband’s will, spent the night away from home, even with her parents.

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<1> See: Tsaturova M.K. Russian family law XVI - XVIII centuries. M., 1991.

ConsultantPlus: note.

<2> See: Zagorovsky A.I. Family law course. pp. 77 - 78.

In addition, the spouse could also be the initiator of divorce,

- if the husband, in a common marital apartment or in another house, but in the same city where the wife is, starts a relationship with another woman;

- if the husband makes an intention against his wife’s chastity and attempts to commit adultery to others;

- if the husband falsely accused his wife of adultery.

Over time, other grounds for divorce appeared, and some of those listed lost their significance.

In the 18th century Divorces by mutual consent also began to be practiced.

One of the first post-revolutionary decrees was the Decree of the All-Russian Central Executive Committee and the Council of People's Commissars of the RSFSR of December 19, 1917 “On Divorce of Marriage” <1>, according to which a marriage could be dissolved by a court or a marriage registration department if there was mutual consent (regardless of the presence of minor children) . It is noteworthy that if the place of residence of the defendant spouse was unknown, then information about his summons to court was published in the local government newspaper. In the event of a one-time and joint appearance in the local court of both spouses or their attorneys, the judge could immediately consider the divorce case, without, however, disturbing the queue of cases scheduled for consideration on that day.

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<1> SU RSFSR. 1917. N 10. Art. 152.

According to Art. 95 of the Code of Civil Status, Marriage, Family and Guardianship Laws of 1918, in the event of a joint appearance in the local court by both spouses or their attorneys, the judge could immediately consider the case for divorce. The legislation of that time did not establish any deadlines for reconciliation between spouses.

The Code of Laws on Marriage, Family and Guardianship of 1926 provided similar rules regarding freedom of divorce and allowed the dissolution of a marriage if one of the spouses wished.

Resolution of the Central Executive Committee and the Council of People's Commissars of the USSR dated June 27, 1936 “On the prohibition of abortion, increasing financial assistance to women in labor, establishing state assistance for large families, expanding the network of maternity hospitals, kindergartens, strengthening criminal penalties for non-payment of alimony and some changes to the legislation on marriage and family “was aimed at strengthening the family, and therefore the divorce procedure was complicated, for which the personal presence of both divorcing spouses and the payment of a fee became necessary.

Even greater tightening of the divorce procedure took place after the adoption of the Decree of the Presidium of the Supreme Soviet of the USSR of July 8, 1944 “On increasing state assistance to pregnant women, large and single mothers, strengthening the protection of motherhood and childhood, on the establishment of the honorary title “Mother Heroine” and establishment of the Order of Maternal Glory and the Medal of Motherhood, according to which an application for divorce was submitted to the people's court. After the publication of an announcement in a local newspaper about the initiation of a case, the defendant was summoned to court. If the people's court failed to reconcile the spouses, the case could be considered at the request of the spouse in a higher authority, which made the final decision. This could be a decision to refuse to satisfy the claim if the court is not convinced of the complete breakdown of the family. In addition, a state fee was charged for issuing a divorce certificate: from 500 to 2 thousand rubles.

In 1968, the Fundamentals of the Legislation of the USSR on Marriage and Family were adopted, and in 1969, the RSFSR Code on Marriage and Family, which determined the possibility of divorce both in judicial and administrative procedures, which have largely been preserved to this day . So, in accordance with Art. 38 of the Code of Laws, with mutual consent to dissolve the marriage of spouses who do not have minor children, the dissolution of the marriage was carried out in the registry office. If there was a dispute between the spouses, the marriage was dissolved through the court. Upon divorce, a state fee was collected in the amount of 50 to 200 rubles.

The Family Code of the Russian Federation, like the Code of Labor Code of the RSFSR of 1969, provides for the possibility of divorce both administratively and judicially. In an administrative manner, a marriage can be dissolved if there is a joint application of the spouses, and in the cases provided for in paragraph 2 of Art. 19 of the RF IC, - at the request of one spouse.

According to paragraph 1 of Art. 19 of the RF IC, a marriage is administratively dissolved by the registry office if the spouses do not have common minor children and if there is mutual consent of the spouses

. At the same time, adopted children have the same legal status as their own children. However, if a child is adopted by one of the spouses, and the other only gave consent to his adoption, the marriage can be dissolved by the registry office.

Registry offices do not investigate the reasons for divorce; their functions are limited to registering divorce. The basis for divorce is a joint application of the spouses. In the application for divorce, the spouses must confirm mutual agreement to dissolve the marriage and the absence of common children under the age of majority. The reasons for the divorce are not indicated in the application.

If the spouses (one of the spouses) changed their surname when getting married, then they have the right to return their premarital surname. There is no state fee to pay for this action. The consent of the other spouse is not required.

If one of the spouses is unable to appear at the registry office, the will of the spouses can be formalized in separate statements, and the signature of the spouse who did not appear at the registry office must be notarized. State registration of divorce is carried out by the registry office either at the place of residence of the spouses (one of them), or at the place of state registration of the marriage, which is provided for in Art. 32 of the Federal Law “On Acts of Civil Status”. Divorce and the issuance of a divorce certificate are carried out by the registry office in the presence of at least one of the spouses after one month from the date the spouses submitted a joint application. The legislation does not provide for the possibility of reducing or increasing this period. However, some registry offices interpret the words “after a month” broadly, meaning any period of time from the expiration of one month. Considering that the presence of one of the spouses is sufficient to register a divorce, such an interpretation may give rise to certain problems associated with the legal status of the other spouse, who may not be informed about the registration of the divorce.

At the request of one of the spouses, the marriage can be dissolved

according to paragraph 2 of Art. 19 RF IC, if the other spouse:

- declared missing by the court;

- declared incompetent by the court;

- sentenced for committing a crime to imprisonment for a term of over three years.

The application for divorce must be accompanied by relevant documents confirming the above-mentioned circumstances, in particular a court decision declaring the other spouse missing or incompetent, or a court verdict convicting the other spouse to imprisonment for a term of more than three years. It does not matter if spouses have common minor children. In all of these cases, the marriage can be dissolved not only in the registry office, but also in court at the request of the spouse.

State registration of divorce is carried out after one month from the date of filing the application. In this case, the registry office within three days from the date of acceptance of the application notifies the spouse serving a sentence, or the guardian of the incapacitated spouse, or the property manager of the missing spouse. The spouse serving a sentence, as well as the guardian of the incapacitated spouse, must provide the surname that the spouse chooses upon divorce. If the divorce is initiated by the convicted spouse, then the marriage will be dissolved according to the general rules, i.e. in a court. Likewise, a marriage will be dissolved if both spouses are sentenced to imprisonment for a term of more than three years.

When a marriage is dissolved by the registry office, the marriage is considered terminated from the moment the corresponding entry is made in the civil register, at the same time a certificate of divorce is issued.

If disputes arise between spouses regarding property, alimony, or minor children, then these disputes are considered by the court. Claims for division of property are subject to a three-year statute of limitations.

In other cases, the marriage can only be dissolved in court.

, i.e.:

- if the spouses have common minor children;

- in the absence of consent of one of the spouses to divorce;

- if one of the spouses evades divorce from the registry office (refuses to submit an application, does not want to appear for state registration of divorce, etc.).

Explanations of some issues arising in judicial practice are given in Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 No. 15 “On the application of legislation by courts when considering cases of divorce.”

According to Art. 21 of the RF IC, a marriage can be dissolved in court if the spouses have common minor children, as well as in the absence of the consent of one of the spouses to dissolve the marriage, or if one of the spouses evades the dissolution of the marriage in the registry office, for example, refuses to submit an application.

The possibility of filing a claim for divorce is limited to the husband during his wife’s pregnancy and within one year after the birth of the child. The divorce process can have a particularly adverse effect on the health of the woman and child during this period, and in accordance with Art. 17 of the RF IC, a husband does not have the right to initiate proceedings for divorce without the consent of his wife. This provision also applies to cases where the child was stillborn or died before reaching the age of one year. In the absence of the wife’s consent to consider the divorce case, the judge refuses to accept the statement of claim, and if it was accepted, then terminates the proceedings (clause 1, part 1, article 134, paragraph 2, article 220 of the Code of Civil Procedure of the Russian Federation). However, this does not deprive the spouse of the right to apply to the court for division of property or to challenge paternity.

If the spouse is pregnant, she submits to the court a medical certificate indicating the approximate dates of pregnancy and childbirth. After the expiration of the specified period and one year after the birth of the child, the court accepts the statement of claim for divorce. If the spouse applies to the court with an application earlier than this period due to the fact that the pregnancy was terminated, then the court, in the absence of confirmation of other circumstances by the spouse, has the right to accept the application.

The law does not limit a spouse’s right to file a claim for divorce at any time.

The basis for divorce in court is the application of one of the spouses.

The statement of claim indicates when and where the marriage was registered; whether there are common children, their ages; whether the spouses have reached an agreement on their maintenance and upbringing; in the absence of mutual consent to dissolve the marriage - the reasons for the dissolution of the marriage; Are there other claims that can be considered simultaneously with the claim for divorce. The application must be accompanied by: a marriage certificate, copies of children’s birth certificates, a document confirming payment of state duty, documents on earnings and other sources of income of the spouses (if a claim for alimony is filed) and other necessary documents, for example documents confirming the value of the property to be divided (document on cadastral valuation of an apartment, documents on the cost of a vehicle, etc.). The state fee for divorce in court is 650 rubles for each spouse. In case of division of property, the state fee depends on the value of the claim.

Cases of divorce are considered by a magistrate in accordance with clause 2 of part 1 of Art. 23 of the Code of Civil Procedure of the Russian Federation, if there is no dispute between the spouses about children. The magistrate also considers cases of division of jointly acquired property between spouses if the value of the claim does not exceed 50 thousand rubles. According to Art. 28 of the Code of Civil Procedure of the Russian Federation, a claim for divorce is filed, as a general rule, in the court at the place of residence of the defendant. In addition, in accordance with Part 4 of Art. 29 of the Code of Civil Procedure of the Russian Federation, claims for divorce can also be brought to the court at the place of residence of the plaintiff in cases where there is a minor with him or, for health reasons, the plaintiff’s travel to the defendant’s place of residence seems difficult for him.

The stage of preparing the case for consideration, including the preliminary court hearing (Article 152 of the Code of Civil Procedure) has an important procedural significance in this category of cases. Having accepted the application for divorce, the judge, in order to prepare the case for trial, if necessary, calls the second spouse and finds out his attitude to this application. The judge also explains to the parties what claims can be considered simultaneously with the claim for divorce.

If the spouses mutually agree to dissolve the marriage, the court does not find out the reasons for the divorce, but is limited to stating the fact of family breakdown and dissolution of the marriage. Thus, when considering a dispute regarding the cancellation of a court decision on divorce in the presence of the mutual consent of the spouse, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not find grounds for canceling the court decision, since such decisions can only be canceled in connection with procedural violations that were not places <1>.

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<1> See: Determination of the Supreme Court of the Russian Federation of January 10, 2003 N 5-В02-406 // SPS “ConsultantPlus”.

In addition, the court takes measures to protect the interests of minor children.

In the absence of mutual agreement, the court in accordance with paragraph 1 of Art. 22 of the RF IC must establish that further life together of the spouses and the preservation of the family is impossible. The legislation does not provide a list of reasons that serve as grounds for divorce. One of the compelling grounds for divorce is the impossibility of further cohabitation of spouses and preservation of the family, which is confirmed by the following facts:

1) abuse of alcohol by one of the spouses;

2) the presence of chronic alcoholism;

3) restriction of the spouse’s legal capacity due to abuse of alcoholic beverages or narcotic substances;

4) the absence of close relationships between spouses;

5) separation of spouses for a long period of time;

6) a spouse has been sentenced to imprisonment for a term of up to three years inclusive (if the application to the court is filed by the other spouse);

7) a spouse has been sentenced to imprisonment for a term of more than three years (if the application to the court is filed by the convicted spouse and the other spouse does not agree to divorce);

unknown place of residence of the spouse;

9) adultery;

10) the presence of actual marital relations with another person;

11) abuse of a spouse or minor children;

12) the inability of one of the spouses to have children and other circumstances <1>.

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<1> See: Handbook of Evidence in Civil Proceedings / Ed. I.V. Reshetnikova. M.: Norma, 2005.

The legislation of some Eastern European countries specifies complete breakdown of family life and family breakdown as grounds for divorce. Each spouse has the right to apply to the court for a divorce. However, even under such circumstances, the court may refuse to dissolve the marriage if it comes to the conclusion that the divorce will be harmful to the common young children or contrary to the principles of social coexistence. Divorce is also not allowed at the request of the spouse who is solely responsible for the breakdown of the family, if the other spouse objects to the divorce. However, even in this case, the marriage can be dissolved if the court finds divorce necessary from the point of view of the principles of social coexistence (Poland) or if the spouses have not lived together for more than three years (Czech Republic) <1>. In some countries, only the man can initiate divorce. In Burkina Faso, a husband can divorce his wife by “abandoning” her.

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<1> See: Sakovich O.M. Legal relations of spouses under foreign legislation // Journal of Russian Law. 2003. N 10.

Russian legislation provides in paragraph 2 of Art. 22 of the RF IC that if the court is not convinced of the breakdown of the family, then it can give the spouses time for reconciliation within three months. Depending on the circumstances of the case, the court has the right, at the request of the spouse or on its own initiative, to postpone the hearing of the case several times, so that in total the period of time provided to the spouses for reconciliation does not exceed the three-month period established by law.

The period assigned for reconciliation may be reduced if the parties request it, and the reasons given by them are recognized by the court as valid. In these cases, a reasoned determination must be made. The court's ruling to postpone the hearing of the case to reconcile the spouses cannot be appealed or protested, since it does not interfere with the possibility of further progress of the case.

In most countries, the reconciliation procedure exists in the form of so-called separation (a period of separation that must be established by the court). For example, in Germany, a marriage can be dissolved if the spouses have been separated for at least a year and file a joint application for divorce or it is filed by one of them if the other spouse does not object, if the spouses have been living separately for three years.

In Italy, the basis for filing an application for divorce is the presence of a court decision that has entered into legal force on the termination of cohabitation, declaring the termination of cohabitation by agreement between the spouses, or the termination of such cohabitation at least two years before filing the divorce application.

In France, divorce is permitted provided that the spouses have been practically separated for six years. A decision on the separation of spouses is made in court at the request of one of the spouses on the same grounds as a decision on divorce. Separation does not end the marriage, but it does end the obligation to live together and entails division of property. At the request of one of the spouses, after three years, the decision on separation can be converted into a decision on divorce <1>. Separation requirements apply in the UK, Brazil and other countries.

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<1> See: Sakovich O.M. Legal relations of spouses under foreign legislation // Journal of Russian Law. 2003. N 10.

When postponing the proceedings on divorce and collection of child support in connection with setting a deadline for reconciliation of the spouses, it is necessary to find out whether the defendant is involved in the maintenance of the children. If the court finds that the defendant does not fulfill this obligation, he has the right, in accordance with Art. 108 of the RF IC to issue a resolution on temporary collection of alimony from the defendant until the final consideration of the case on divorce and collection of alimony.

If, after the expiration of the period for reconciliation, the plaintiff continues to insist on divorce, the court is obliged to dissolve the marriage, regardless of whether it is convinced that the spouses cannot preserve the family.

In practice, there are cases of appeal against decisions on divorce based on the possibility of preserving the family, the lack of sufficient reasons for divorce, the obligation of the court to “take all necessary measures to preserve the family, and not destroy it,” etc. In such cases, higher courts, as a rule, uphold the decision, referring to paragraph 2 of Part 2 of Art. 22 of the RF IC, according to which divorce is carried out if measures to reconcile the spouses were unsuccessful and the plaintiff insists on dissolution of the marriage, as well as the principle of voluntariness of the marriage union, which is implemented not only upon marriage, but also upon its termination (clause 1 of Art. . 1 SK).

Divorce cases may be considered by the court at the request of the spouses in a closed session, since the proceedings may affect their personal lives. According to paragraph 2 of Art. 23 of the RF IC, divorce is carried out by the court no earlier than one month from the date the spouses filed an application for divorce.

When considering a divorce case, the court must also resolve other disputes between spouses related to the divorce. The court is obliged, regardless of the initiative of the spouses in accordance with paragraph 2 of Art. 24 RF IC determine:

- with which parent the minor children will live after the divorce;

— from which parent and in what amount child support is collected.

This provision contradicts the principle of discretion in civil proceedings and, as practitioners note <1>, is not applied by the courts. At the same time, according to paragraph 3 of Art. 196 of the Code of Civil Procedure of the Russian Federation, the court makes a decision on the claims stated by the plaintiff, but may go beyond the stated requirements in cases provided for by federal law.

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<1> See: Zhuikov V. Civil Procedure Code of the Russian Federation and other sources of civil procedural law // Russian justice. 2003. N 4. P. 12.

In practice, there are cases of decisions on divorce without considering the dispute about children and alimony in their favor. Thus, the decision of the Supreme Court of the Russian Federation upheld the decision to dissolve a marriage between spouses who have a common child. This decision does not reflect questions about who the child will live with and his maintenance. The Supreme Court of the Russian Federation motivated this by the fact that there was a case in court about challenging the registration by the father of the child, and the wife did not ask the court at the court hearing to resolve the issues of which party the minor child would live with, the procedure for paying funds for his maintenance and the amount of these funds.

The court considers disputes exclusively at the request of spouses (one of them):

- on the division of property that is in their joint ownership;

- about alimony that one spouse must pay to the other.

Simultaneously with the claim for divorce, a demand for recognition of the marriage contract as invalid in whole or in part may also be considered.

All these issues must be resolved by the court when making a decision on divorce, with the exception of disputes about the division of property if they affect the interests of third parties. In the latter case, according to paragraph 3 of Art. 24 of the RF IC, the court may separate the requirement for division of property into separate proceedings, for example, if the property subject to division is not the property of the spouses, but belongs to third parties, for example, the parents of the spouses. In addition, a claim for the collection of child support may be separated into separate proceedings if the other party disputes the entry of the child’s father or mother in the civil register.

Paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15 “On the application of legislation by courts when considering cases of divorce” specifies the specifics of the division of property of spouses if a dispute about it affects the rights of third parties. The rule on separating property claims into separate proceedings does not apply to cases of division of deposits made by spouses to credit organizations at the expense of common income, regardless of which spouse’s name the funds were deposited in, since when dividing such deposits the rights of banks or other credit organizations are not are affected. If third parties provided the spouses with funds and the latter deposited them in their names in credit institutions, third parties have the right to file a claim for the return of the corresponding amounts in accordance with the norms of the Civil Code of the Russian Federation, which is subject to consideration in separate proceedings.

The moment of termination of a marriage dissolved in court is considered to be the entry into force of the court decision. Within three days from the moment the decision enters into legal force, the court sends an extract from the decision to the registry office at the place of state registration of the marriage. In accordance with paragraph 3 of Art. 169 of the RF IC, this rule does not apply to cases where the marriage was dissolved before May 1, 1996. In accordance with Art. 40 of the 1969 Code of the Russian Soviet Federative Socialist Republic, a marriage was considered terminated from the moment the dissolution was registered in the civil registry book. In addition, the courts had no obligation to submit extracts from decisions on divorce to the registry office. Thus, if none of the spouses applied to the registry office with a request to register a divorce, then their marriage was considered preserved, despite the court decision.

State registration of divorce on the basis of a court decision can be carried out in the registry office also at the place of residence of the former spouses (any of them) on the basis of an extract from the court decision and an application from the former spouses (one of them) or an application from the guardian of the incapacitated spouse (clause 1 of Art. 35 of the Federal Law “On Acts of Civil Status”). When a divorce is entered into the civil registry book, the spouse may, at his request, have his premarital surname returned. Spouses have the right to enter into a new marriage only after receiving a certificate of divorce from the registry office at the place of residence of any of them or at the place of state registration of the marriage.

Source: Textbook "FAMILY LAW" edited by P.V. KRASHENINNIKOVA. Authors: Gongalo B.M., Krasheninnikov P.V., Mikheeva L.Yu., Ruzakova O.A.

Legal consequences of divorce

The legal consequence of divorce is the termination for the future of personal and property legal relations that arose between husband and wife in marriage. Let's highlight the main points:

from the moment of registration of the divorce, the newly acquired property is not subject to the regime of joint ownership;
existing joint property can be divided by agreement of the parties or in court if there is a dispute;
if there are minor children, the issue of which parent they will live with is resolved in court (clause 2 of article 24 of the Family Code);
after 300 days from the date of divorce, the presumption of paternity established by paragraph 2 of Art. 48 of the Family Code, which states that the husband of the mother of the born child is recognized as the father of a child born in marriage;
in the cases established in Art. 90 SK, husband or wife have the right to receive funds (alimony);
The court also determines the amount of alimony paid by the other parent for the maintenance of children.

Next, we will consider these consequences of divorce in more detail.

Regulations for the division of common property of spouses

One of the consequences that participants will also have to face is the distribution of joint property benefits. The law provides for several grounds for the division of property. These include:

signing a marriage contract;
execution of a voluntary agreement on the division of property;
filing a claim by one of the participants;
initiative of credit institutions to which the family has debt obligations.

Division of property by agreement

Before marriage, as well as after marriage, a man and a woman have the right to sign a marriage contract. This is an agreement that stipulates the division of property between husband and wife, sources of income and rules for family expenses. The peculiarity of the marriage contract is that its contents can even reflect those objects that will be acquired by the participants in the future.

During a divorce, partners can use the prenuptial agreement as a basis for the distribution of values. But if some objects are not reflected in the terms of the agreement, then by default they are divided in half between the husband and wife.

The second world document is an agreement on the division of property. This is a notarial agreement drawn up immediately before the divorce, after its approval, or within three years from the date of receipt of the divorce certificate.

Important! The agreement includes information about all objects that were acquired by citizens after the wedding. Such a document is drawn up with the participation of a notary and only with mutual consent of the parties.

Controversial property issues and ways to resolve them

In practice, many conflict situations may arise, and if the participants could not resolve everything peacefully, then they will have to meet in court. During the hearing, the judge analyzes the evidence presented and makes a fair decision regarding the further acquisition of ownership rights to the objects. Most disputes fall into the following categories of issues:

different shares of property rights are established for each party;
forced division of objects that are legally classified as personal property;
determination of property that cannot be divided;
allocation of children's property.

In addition to the above consequences, it is also necessary to take into account that after the dissolution of the marriage, the spouses can no longer claim each other’s inheritance. Also, a parent living separately from the children will not be able to receive benefits and social benefits.

If a citizen has a personal home, recognized by the court as individual property, then the second partner loses the right to live in it. This does not apply to minor children.

Another point is the recognition of family ties as invalid. This means that the marriage is considered to be one that never had legal force. This is possible if the marriage was forced or when one of the persons hid information about his incurable illness.

All obligations are lost, and transactions, executions due to the existence of a marriage are canceled (for example, the gift of valuables between partners). This procedure has no effect on children. Both parents will be considered relatives and the responsibility for raising and maintaining the children remains with each of them.

Division of jointly acquired property

By virtue of paragraph 1 of Art. 33 of the Family Code, joint ownership is the legal regime for the property of a husband and wife. Another regulation of property rights may be provided for in a marriage contract, but we will dwell on it a little later.

Property acquired jointly includes:

Income of the husband and wife, including pensions, benefits, etc. An exception is payments that have a specific purpose, for example, money paid in connection with loss of incapacity due to damage to health.
Immovable and movable things acquired at the expense of common funds.
Other property acquired by a husband and wife during marriage, regardless of whose name it is registered in.

Divorce is one of the grounds for the division of such property (Clause 1, Article 38 of the Family Code). The common property of the spouses can be divided:

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With the consent of the husband and wife by drawing up an appropriate agreement, which must be certified by a notary.
Court in case of disagreement. Read more about this in the article What is the procedure for dividing property through the court? A demand for division can be filed within 3 years from the date of divorce.

How housing purchased using maternity capital will be divided during a divorce, read our article “How maternity capital is divided during a divorce.”

General information

In short, after marriage, the husband and wife have the same rights to raise children and to joint property. Naturally, spouses can independently determine each other’s rights and obligations by drawing up a marriage agreement. And when carrying out a divorce, they are obliged to comply with the terms of the contract. But if there is no such document, then the division of property must occur according to law.

Divorce usually occurs on the initiative of:

both spouses;
one of them;
a third party (for example, a guardian if the husband or wife is incapacitated).

When dividing property, the statute of limitations must be taken into account. If we talk about voluntary division based on an agreement, then no special deadlines have been established. Former spouses can enter into an agreement and re-register property at any time.

If the case is considered by the court, then you can appeal within 3 years. The date from which the countdown is based, in this situation, may be not only the date of divorce, but also the date the plaintiff discovered a violation of his rights. For example, the ex-spouse hid the presence of property that is considered common. And even if several years have passed since the date of divorce, the injured party has the right to go to court.

Debt section

In addition to property, debts that arose during the family life of the spouses are subject to division, provided that the money received was spent on the needs of the family (Clause 2 of Article 45 of the Family Code). The burden of proving these circumstances lies on the party that wants to distribute the debt (clause 5 of the Review of Judicial Practice of the Armed Forces of the Russian Federation dated April 30, 2016 No. 1).

Such debts include:

funds received under a targeted loan and spent on the purchase of an apartment (determination of the Kemerovo Regional Court dated March 24, 2015 in case No. 33-2185/2015);
funds received under a loan agreement for which an apartment was purchased (decision of the Moscow Regional Court dated June 22, 2015 in case No. 33-14747/2015);
money received under a loan agreement for which a car was purchased (decision of the Bogorodsky City Court of the Nizhny Novgorod Region dated March 28, 2017 in case No. 2-560/2017).

Division of property in the presence of a marriage contract

If the parties are not satisfied with the legal regime of property, they can establish other rules by drawing up a marriage contract. It is drawn up in writing and must be certified by a notary. The document can be drawn up:

during any period of marriage;
before marriage.

In the latter case, the contract comes into force from the moment the spouses enter into marriage.

In accordance with paragraph 1 of Art. 42 of the Family Code, spouses can stipulate in the contract the property that each of them will receive in the event of a divorce. For example, it may be established that property acquired during marriage that is subject to registration (vehicles, residential buildings, apartments, land plots, etc.) belongs to the spouse in whose name it is registered (determined by the Moscow District Court of St. Petersburg dated 06/05/2017 in case No. 11-146/2017).

If there is a valid marriage contract, the division of property is carried out in accordance with the rules established by this document.

IMPORTANT! During marriage, you can conclude not only a prenuptial agreement, but also an agreement on the division of jointly acquired property. Unlike a marriage contract, a division agreement does not establish ownership regimes, including in advance, for property that has not yet been acquired, but only stipulates who owns what the spouses already have and under what conditions.

Termination of legal relations after divorce

The consequences of filing a divorce are associated with the elimination of mutual legal rights and obligations, but the participants can continue to communicate, depending on the causes of the conflict. So, as practice shows, after receiving a divorce certificate, participants can:

stop all personal communication;
the resolution of the property conflict is postponed, and therefore the former spouses are bound by joint property;
the woman does not want to return her maiden name, but leaves her husband’s family name;
the presence of mutual obligations to raise common children;
the need to pay for maintenance or compensation, as stipulated by the terms of the marriage contract or property division agreement.

Preservation of legal relations after divorce due to direct provisions of the law

The consequences of the termination of an official marriage are not always associated with the liquidation of any legal relationship. Often, judicial authorities oblige former spouses to maintain relationships. This is possible on the following grounds:

payment of regular maintenance to a partner who has lost his legal capacity;
sharing of undivided property;
parenting;
joint payment of debt obligations and loans;
payment of alimony to a wife on maternity leave.

The concept of divorce also implies that the participants may enter into a remarriage. This can be done even the next week after receiving the divorce certificate.

Preservation of the marital surname

When getting married, participants can each keep their own last name or take a common one (the family name of the wife or husband). In case of divorce, one of the mandatory conditions displayed in the application is an indication of what surname each of the divorced citizens will go by in the future. It is possible to leave the existing name or return the previous one.

Spouses cannot influence each other's desire to change or leave their last name.

Most often, women remain with their spouse's family name, which is due to the need to use social services. When applying for a job, you will have to confirm your diplomas; when traveling with a child, you will have to confirm your relationship (if the mother and baby have different names).

Disputes about the place of residence of children arising during divorce

If, after a divorce, the parents of minor children live separately, the court (Article 24 of the Family Code) resolves the issue of who the children will live with in the future. The mother and father can establish this by putting the agreement in writing. If there is a disagreement, the issue is resolved by the court.

When considering disputes about children, it is mandatory to involve the guardianship and trusteeship body, which conducts an examination of the living conditions of the spouse (spouses) applying to raise a minor, and issues an appropriate conclusion (clause 3 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated May 27, 1998 No. 10, hereinafter - Resolution No. 10).

The court when resolving such disputes in accordance with paragraph 3 of Art. 65 IC takes into account:

age of the minor;
the opinion of a child who has reached the age of 10 (Article 57 of the Family Code);
relationships between child and mother, between child and father;
child's attachment to mother and father;
personal qualities of each parent;
conditions available for the upbringing and development of a minor (working hours of the father or mother, income level, etc.).

At the same time, the advantage of the mother or father in financial and living conditions is not an unconditional basis for making a decision (clause 5 of Resolution No. 10).

Disputes about the exercise of parental rights after divorce

In accordance with paragraph 1 of Art. 61 SK mother and father have equal rights to raise their children. However, when parents divorce or move away, a dispute often arises related to the ability of a parent living separately to exercise their parental rights.

In accordance with paragraph 8 of Resolution No. 10, when resolving such disputes, courts must take into account:

age of the minor;
child's attachment to mother and father;
his state of health;
other circumstances affecting the physical and mental health of the child.

The operative part of the decision determines the procedure for communication between a minor and a parent living separately, namely: place, time, duration, etc.

Failure to comply with a court decision or creating obstacles to its execution by the mother or father with whom the child lives may become grounds for transferring the child to a parent living separately.

In cases where communication between a minor and a mother or father living separately could cause harm to the child, the court may deny such parent communication.

Let's sum it up

Divorce usually results in the division of everything the spouses have acquired. From a legal point of view, property should be divided equally if one of the spouses does not have priority rights to it. But children usually stay with one person, and the other parent only needs to provide financial assistance. Most difficulties arise if the couple has signed a marriage contract. Such documents, despite the law, often have many pitfalls. And most often wealthy spouses face such problems.

Alimony paid for child support

In accordance with paragraph 1 of Art. 80 SK mother and father must support their children who have not reached the age of majority. In the absence of a formalized agreement on the payment of alimony, the dispute is resolved by the court.

The amount of maintenance established by law is:

¼ earnings for 1 child;
1/3 - for 2 minors;
½ earnings for 3 or more children.

Decree of the Government of the Russian Federation dated July 18, 1996 No. 841 established the following list of income from which funds for child support are withheld:

all types of wages, bonuses and other remuneration;
all types of pensions, with the exception of payments made in the event of the loss of a breadwinner;
scholarships paid to students, graduate students, doctoral students, students of theological seminaries;
income from the transfer of property for rent;
dividends accrued on shares, shares, other income from participation in the management of a legal entity;
monetary allowances for military personnel, etc.

If the parent does not have a permanent income or its irregularity, the court may determine the monthly amount of payments in a fixed amount.

If a child has an injury or serious illness, or the need to care for him, the mother or father may be required to bear additional expenses - both those that have already occurred and those that will arise in the future (Article 86 of the Family Code).