Refusal to divorce: what are the grounds for refusal?

If you ask a person who complains about an unhappy family life: “Why don’t you get a divorce?”, you may hear the answer: “He/she won’t give me a divorce.” Is this really so, and the disagreement of one of the spouses to divorce can be the reason that the other is forced to remain in a hateful marriage for the rest of his life?

Of course, this is not true. The modern legal system does not allow such obvious infringement of individual rights.

Although divorce without mutual consent of the spouses is true, the procedure is complex, lengthy and psychologically difficult. In this article we will look at its features.

When you can't get permission to divorce.

The process of dissolution of official relations is legally regulated by the Family Code.

It states that divorce can be filed in two ways:

• through the registry office;
• judicially.

Most often, spouses who want to officially break off a relationship turn to the registry office. If there are no common children in the family who have not reached the age of majority, the consent of both parties is usually sufficient to file a divorce.

A unilateral application to government authorities is accepted only if one of the spouses is considered missing or is serving a prison sentence of at least 3 years.

However, applying to a government agency to terminate the relationship ends in a positive result.

Let's look at the cases in which spouses are not given permission to divorce at the registry office.

• In case the second applicant does not come to the appointment at the specified time. The application must be completed by both spouses in the presence of a representative of the government organization.
• A divorce will be refused if one of the couple is declared incompetent by a court decision, but it has not entered into force.
• The applicants did not provide all the necessary documents.
• The registry office cannot consider divorce applications from married couples raising minor children.
• A refusal from a government agency will be received in the case where the marriage has already been declared invalid in accordance with Art. 27 SK.

If the registry office is not authorized to consider the application, then it will send a notice about this in the prescribed form. In order to appeal the actions of civil servants, applicants can go to court.

Advantages and disadvantages

An unregistered marriage has both positive and negative sides. The advantages include:

• absence of any obligations in accordance with the law;
• no need to go to the registry office to enter into a union.

But this option also has many disadvantages. All of them are also explained by the lack of obligations to each other:

• establishment of paternity does not occur automatically, but requires a DNA test and/or recognition of the children by the father;
• The division of property in a civil marriage cannot be carried out exactly according to the law and is almost always based on mutual trust.

Therefore, if you are interested in how property is divided during a divorce in a civil marriage, you should prepare for the fact that many difficulties will await each of the parties. According to both the Family Code and the Civil Code, there is no concept of unofficial marriage or even “actual marital relations,” which is why problems arise when trying to divide property.

Refusal to dissolve a marriage by a court.

Couples who have submitted an application for consideration to a government agency are interested in the question of whether the court can refuse to dissolve a marriage between spouses.

The claim statement is returned to the applicants in the following cases:

• If a woman is pregnant or raising a child under 1 year of age and does not consent to the termination of the relationship.
• If there are problems with the documentation package or the state fee has been paid incorrectly.

In the latter case, the court will give time to eliminate the violations, after which a hearing date will be set.

The absence of the defendant at the trial is not an obstacle to a decision in favor of the plaintiff.

If the other party is not present, the meeting is postponed. If a spouse fails to appear in court three times, a positive decision on divorce proceedings is made without him.

If a woman is against divorce and is pregnant or has a child under 1 year of age, then the bailiffs will not accept the application for divorce.

This is due to concern for the physical and psychological health of mother and child.

Exceptions are cases when:

• The baby was conceived by another man;
• The child died during childbirth or did not live to be a year old;
• The child is not common to the couple.

At the same time, a man’s doubts about his paternity are not a valid reason for divorce in this situation. The court will not consider his application based on assumptions.

Legislation on divorce of spouses in court in the absence of consent of one of the spouses to divorce

Divorce in court in the absence of consent of one of the spouses to divorce is regulated by:

• Article 16 “Grounds for termination of marriage”,
• Article 17 “Limitation of the right of the husband to file a claim for divorce”,
• Article 21 “Dissolution of marriage in court”,
• Article 22 “Dissolution of marriage in court in the absence of consent of one of the spouses to divorce” and
• Article 24 “Issues resolved by the court when making a decision on divorce” of the Family Code of the Russian Federation.

Judicial practice shows that divorce cases in court are the most common category of family law cases.

Statistics of divorces of spouses through the court

Statistics show that in the Russian Federation, for various reasons, the number of divorces is steadily growing every year.

Currently, according to official data in our country:

• every second married couple gets divorced,
• In this case, it is the spouse who most often files for divorce.

The number of applications to the court for divorce from women is almost 70% , while the spouse prefers not to change anything in his usual lifestyle and, according to statistics, is the initiator of divorce 2 times less often than the spouse.

The most common reasons for spouses to divorce when the spouse initiates the divorce:

• the spouse is an alcoholic, drug addict, gambling addict, or simply a parasite;
• sudden marriage;
• cheating spouse.

Statistics also show that spouses who are between 25 and 35 years .

At the same time, the peak of divorces occurs among married couples:

• have lived together in marriage for 5 to 9 years ,
• having no children or
• who gave birth to one child in marriage.

Having reached their 35th birthday , spouses do not stop separating, but in this age group the percentage changes slightly towards spouses who initiate divorce at this age more often than in younger years.

In recent decades, spouses have begun to treat divorce more frivolously:

• the reason is a change in concepts and value systems,
• women stopped relying only on their spouses, preferring to build their lives independently rather than sacrifice themselves to their spouses and children.

When it will not be possible to get a divorce if one of the spouses is against divorce

Quite often, young people fall in love, get married, and have a child. Everyday problems appear, love fades, relations between spouses deteriorate, especially after the birth of a child, which leads to a desire to divorce, mainly from the spouse.

Family law in this situation tries to protect the rights of the mother. Therefore, when accepting a spouse’s claim for divorce, judges are primarily guided by the rule established by Article 17 “Limitation of the right of a husband to file a claim for divorce” of the Family Code of the Russian Federation.

According to this article of the Family Code:

• the spouse does not have the right to initiate proceedings for divorce during her pregnancy without the consent of the wife,
• and also within one year after the birth of the child.

This provision of the Family Code also applies to the following cases:

• when 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 spouse's claim for divorce,
• and if it was accepted, the court terminates the proceedings in the court case (clause 1, part 1, article 134 “Refusal to accept a statement of claim”, paragraph 2 of article 220 “Grounds for termination of proceedings” of the Code of Civil Procedure of the Russian Federation).

These definitions are not an obstacle to the spouse re-applying to the court with a claim for divorce if the circumstances listed in Article 17 of the Family Code subsequently no longer exist.

Clause 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 No. 15 (as amended on February 6, 2007) “On the application of legislation by courts when considering cases of divorce”

Although saving a family using this measure is problematic, it is nevertheless possible to at least protect a pregnant woman or nursing mother from the worries associated with the divorce process. At the same time, the implementation of this ban on divorce depends on the discretion of the spouse, because even if she is pregnant, she can give her consent to divorce.

The difference between divorce in court and in the registry office

Divorce in court is carried out in cases provided for in Article 21 “Dissolution of marriage in court” of the Family Code of the Russian Federation:

• spouses have common minor children (with the exception of cases when one of the spouses is recognized by the court as missing, incompetent, or sentenced to imprisonment for a term of more than 3 years for committing a crime);
• there is no consent of one of the spouses to divorce;
• one of the spouses, despite his lack of objections, avoids dissolving the marriage in the registry office (refuses to submit a joint application).

The grounds and procedure for dissolving a marriage in court with mutual consent of the spouses for divorce are determined:

• Article 23 “Dissolution of marriage in court with mutual consent of the spouses to dissolve the marriage” of the Family Code of the Russian Federation.

In contrast to a divorce in the registry office if there is mutual consent to divorce, there are two reasons for considering the issue of divorce in court if the spouses mutually agree to divorce:

• spouses have common minor children,
• and also when one of the spouses, despite his lack of objections, evades divorce from the registry office.

The evasion of a divorce by a spouse in the registry office is understood as cases when:

• the spouse does not formally object to the divorce,
• but in fact, by his behavior, he prevents the dissolution of the marriage.

For example, he refuses to file an application for divorce or, having filed it, does not want to appear to register the divorce. This basis for judicial divorce is enshrined at the legislative level in Article 21 of the Family Code.

The procedure for divorce by court with mutual consent of the spouses is simplified:

• the court dissolves the marriage without clarifying the reasons for the divorce and
• is not obliged to take measures to reconcile the spouses.

The basis for divorce by the court is the mutual voluntary consent of the spouses to divorce, which is caused by the breakdown of the family and the impossibility of continuing their life together.

Grounds for dissolution of marriage in court in the case when one of the spouses objects to its dissolution or evades divorce

Divorce of spouses in court is carried out if:

• the court found that further life together of the spouses and preservation of the family is impossible;
• in this case, the court has the right to take measures to reconcile the spouses and has the right to postpone the trial of the court case, assigning the spouses a period for reconciliation within 3 months .

Article 22 “Dissolution of marriage in court in the absence of the consent of one of the spouses to dissolve the marriage” of the Family Code of the Russian Federation

If measures to reconcile the spouses are unsuccessful and one of the spouses insists on dissolution of the marriage, the court will dissolve the marriage,

However, if one of the spouses is recognized by the court as missing, then the second spouse can divorce through the civil registry office on the basis of Article 19 “Dissolution of marriage in the civil registry office” of the Family Code of the Russian Federation:

• To do this, the wife must prove in court that her husband is missing,
• and then get a divorce through the registry office.

To do this, she needs to submit to the registry office an application for divorce and an extract from the court decision declaring her spouse missing.

A citizen may be recognized as missing if within 1 year there is no information about his place of residence at his place of residence. Article 42 “Recognition of a citizen as missing” of the Civil Code of the Russian Federation

Article 44 “Cancellation of a decision to recognize a citizen as missing” of the Civil Code of the Russian Federation

After the court cancels the decision to recognize the spouse as missing:

• the marriage can be restored by the registry office upon a joint application of the spouses;
• if such a statement is not made, the marriage is not restored;
• The marriage also cannot be restored if the other spouse has entered into a new marriage during this time.

Article 26 “Restoration of marriage in the event of the appearance of a spouse declared dead or recognized as missing” of the Family Code of the Russian Federation

The maximum period of 3 months for reconciliation of spouses is:

• Judicial practice shows that this period is reduced when reconciliation between spouses is impossible and they themselves ask for its reduction.

During the trial or when preparing a court case for consideration, the court tries to find out the true nature of the relationship between the spouses in order to take measures to reconcile them. If, after the expiration of the appointed period, the spouses reconcile, report this in their application to the court, or do not appear at the court hearing at all, the divorce case in court is terminated by judicial proceedings.

It is possible to consider a court case for divorce of spouses in the absence of the second spouse. If the court comes to the conclusion that the second spouse is deliberately avoiding participation in the divorce process, it will consider the court case for the divorce of the spouses in his absence.

General procedure for divorce in court in the absence of consent to divorce of one of the spouses

As a general rule, legal claims are brought at the place of residence of the spouse with whom the marriage is about to be dissolved:

• his place of residence is considered to be the place where he permanently or primarily resides;
• in practice, a lawsuit is brought in the court to which the spouse belongs at the place of his registration;
• if the spouse’s place of residence is unknown, then the claim is filed at his last known place of residence.

One of the spouses can file a claim for divorce. The prosecutor and guardianship authorities can also file a claim for divorce in the interests of the incapacitated spouse. Sometimes a lawsuit for divorce may be brought at the place of residence of the spouse who wants to dissolve the marriage.

There are several such situations:

• the spouse with whom the marriage is about to be divorced:

  declared missing by the court;

• declared incompetent by a court due to mental illness or dementia;
• convicted of committing a crime to imprisonment for a term of at least 3 years;

If there are no disputes about alimony and division of property, a lawsuit for divorce is filed with a magistrate, who can:

• satisfy the lawsuit;
• adjourn the hearing for 1 month ;
• refuse to satisfy the lawsuit.

The justice of the peace cannot change the jurisdiction at the request of one of the spouses. An application containing alimony requirements or division of property must be submitted to the district court.

How to dissolve a marriage in the absence of consent to divorce of one of the spouses and in the absence of children

Submission of an application for divorce and the necessary documents to the court is carried out according to the general rules of legal proceedings in civil proceedings, prescribed:

• in Article 131 “Form and content of the statement of claim” and
• Article 132 “Documents attached to the statement of claim” of the Code of Civil Procedure of the Russian Federation.

The application must be made in writing and sent to the court at the place of residence of the respondent spouse, except in cases where the spouse filing for divorce is given the right to choose jurisdiction.

The following points must be included in the content of the application to the court for divorce:

• name and address of the court, personal data of both spouses;
• an indication of the current family relationship and the date of its official registration (marriage certificate);
• reasons for divorce;
• an indication of the existence of grounds preventing divorce through the civil registry office;
• an indication of the absence of children (if there are no 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 applying to the court will be the lack of consent of the spouse 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. It is also possible to file divorce documents electronically, but this will require a valid electronic digital signature (EDS).

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

Most often, divorce if the spouse does not agree to divorce and if the spouses have children together is accompanied by a dispute about the future of the child:

• if one of the spouses does not want to get a divorce and is against dissolution of the marriage, it is hardly possible to peacefully resolve the issue of the child’s place of residence;
• in this case, the divorce of the spouses will be considered in the district court, while simultaneously clarifying the issue of the future of the children and establishing their place of residence.

If the spouses mutually agree to divorce and even if there are children:

• divorce can be carried out within 1 month through the Magistrates' Court,
• and in the event of a dispute about children, the consideration of the court case may drag on for at least 2 months. Not counting the time frame for the court decision to come into force.

Simplified, the procedure for dissolving a marriage without the consent of one of the spouses for divorce and if there are common children is as follows:

Step 1. Negotiations with the second spouse, an attempt to agree on a voluntary divorce.

Step 2. Preparing a statement of claim for divorce, collecting documents and evidence.

Step 3. Submitting a claim for divorce to the court in person or through the court reception;

Step 4. Court hearing, during which the following are possible:

• request for information and documents by the court;
• appointment of a forensic psychological examination to determine the child’s attachment to each parent;
• sending letters rogatory to interview a spouse living in another city/country;
• postponement of court hearings due to the absence of the second spouse.

Step 5. Issuance of a court decision on divorce.

Step 6. Deadline for the entry into force of a court decision on divorce or a possible appeal of a court decision.

Step 7. Enforcement of the court decision through the civil registry office.

Each court case regarding the divorce of spouses is individual. And the possible nuances of divorce in each court case may be different. Therefore, it is advisable to first consult with a divorce lawyer to identify all relevant circumstances.

The procedure for divorce if one of the spouses does not agree to divorce and there are children

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

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

In some cases, a forensic psychological examination may be required. Regardless of disagreement with the divorce of one of the spouses, the court in any case is obliged to accept the statement of claim for divorce and initiate legal proceedings in the framework of civil proceedings.

However, during the court hearing facts may be revealed that may lead to the refusal to satisfy the claim:

• for example, the wife’s pregnancy and her disagreement with the divorce in accordance with Article 17 “Limitation of the right of the husband to file a demand for divorce” of the Family Code of the Russian Federation.

If the court determines that it is impossible to reconcile the spouses:

• the court determines the most significant circumstances for the future life of the child and dissolves the marriage,
• while simultaneously determining the place of residence of a minor child.

Statement of claim for divorce if one of the spouses does not agree to divorce and there are minor children

The statement of claim for divorce must reflect:

• name of the court, full names of the spouses and their addresses;
• information about the circumstances of the divorce:

  date of marriage;

• information about the actual termination of family relationships;
• information about children (full name, date of birth, place of residence);

A statement of claim for divorce can be filed 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.

In practice, divorce cases of this kind are often complicated by the collection of alimony and the division of property of the spouses:

• family law does not prohibit combining them in one statement of claim,
• but in practice such consolidated court cases can drag on for several months.

State fee for divorce through court

The cost of divorce through court, regardless of whether a statement of claim is filed in the magistrates or district court, is fixed:

• the amount of the state duty for divorce will be 600 rubles , which is fixed by the provisions of Article 333.19 “Amounts of the state duty in cases considered by the Supreme Court of the Russian Federation, courts of general jurisdiction, and justices of the peace” of the Tax Code of the Russian Federation;
• payment of the state fee for divorce is carried out by the applicant spouse 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 for a divorce.

If, along with the claim for divorce, other demands are also made, for example, collection of alimony, division of property, or determination of the procedure for communicating with children after the spouses’ divorce:

• then the total amount of the state fee for divorce, payable when going to court, must be calculated individually, based on the circumstances of a particular court case.

Combining demands for divorce and division of property during a divorce also entails a significant increase in the amount of the state fee for divorce. Unlike the fixed amount of the state duty for ending a marriage, the state duty for the division of property directly depends on the value of the disputed assets divided between the spouses.

The amount of the state duty, linked to the price of the statement of claim for divorce, is determined by clause 1, clause 1 of Article 333.19 “The amount of the state duty in cases considered by the Supreme Court of the Russian Federation, courts of general jurisdiction, and justices of the peace” of the Tax Code of the Russian Federation.

The state fee for divorce when dividing property will be calculated as follows:

The resulting amount of state duty for the division of property during a divorce is added to the state duty for divorce.

You can pay the state fee for divorce and the state fee for division of property either separately or with one receipt. But practice shows that it is better to pay each state fee with a separate receipt - this will simplify the verification of the state fee by court employees and will be useful if there is no longer a need to file a claim in court with consolidated claims.

Also, a state fee in the amount of 150 rubles will be collected from the defendant spouse if a claim is filed with the court for the collection of alimony. The plaintiff spouse in this category of court cases is exempt from paying it.

The document confirming payment of the state duty is submitted to the court strictly in the original. If the amount of state duty was paid via Internet banking, you need to contact the bank office for a confirming document certified by a seal.

In any case, the second spouse will be required to pay a state fee for divorce when applying for his copy of the divorce certificate.

If you have any questions about the violation of your rights, or you find yourself in a difficult life situation, then an online duty lawyer is ready to advise you on this issue for free.

TERMINATION AND DISSOLUTION OF MARRIAGE

Reasons for refusal to breed.

If the spouses separate by mutual consent, but the family has common minor children and joint property, then the application is considered by a magistrate and in most cases a positive decision is made.

In situations where there are disputes, you should contact the district court. The application will be considered by the authority located at the defendant’s place of residence.

The reasons for refusal to divorce a marriage in court can be different.

Thus, when indicating the grounds for divorce “different characters,” the judge will make a decision on setting a reconciliation period, which ranges from 1 to 3 months.

If the spouses do not appear again for the meeting, the case will be automatically closed, and the marriage will be considered saved.

In a situation where one of the parties declares a decision to end the relationship, an appropriate decision will be made.

Determining the place of residence of a minor child after the parents’ divorce

The well-being of children upon the dissolution of their parents’ marriage is the main task when deciding on their future place of residence.

In this case, the place of residence of children after divorce is established by agreement of his parents. If no agreement has been concluded, then such a place is appointed by the court based on the interests of the child and taking into account his wishes.

According to the law, none of the parents has a priority right to have their children live with them after a divorce.

The court determines this based on the specific situation and individual living conditions of each parent.

When assigning a place of residence, the court takes into account the following. The child’s attachment to each of the parents, as well as to close relatives on the part of each parent. Children over 10 years old are asked for their opinion on who they would like to stay with after their parents’ divorce.

Parents' opinion . In other situations, the court may find that one of the parents does not want to permanently live with the children and raise them. Therefore, when resolving this issue, he gives preference to the other parent.

Place of residence of each parent . If the mother lives in the area where the child grows up, goes to school and to sections, then the court will most likely determine the child’s place of residence also in this area.

Child's age . Children under 10 years of age are more often left with their mother.

Parents' living conditions. The court pays attention to the conditions in which each of the parents lives: the size of the home, the presence of a separate room for children, individual work and sleeping space, amenities in the house.

Place of work of parents, state of health, level of income and presence of bad habits. All these factors significantly influence the court’s opinion when deciding on the future place of residence of minor children.

If there are several children in a family, the court usually does not separate brothers and sisters into different families, but leaves them to live with one of the parents. In some cases, the child himself has the right to express a desire to live with the second parent and separately from other children.

In addition, the court evaluates with which of the child’s parents a more worthy future awaits and what opportunities each of them can realize for this.

If one of the parents wants the children to live with him, he has the right to send the following documents to the court:

• conclusion of the guardianship and trusteeship authorities that the living conditions of the parent are suitable for children.
• certificates from the place of work confirming income capable of providing children with a decent life.
• positive reference from the place of work.

Please note : the court may order a forensic psychiatric examination, which will reveal the influence of the parents on the child, and also establish a system of interaction with each of them.

What to do when you don't get a divorce.

Many spouses are faced with the problem of what to do if they are not allowed to divorce. The algorithm of actions depends on the reason why the divorce process is refused.

If citizens are faced with a refusal at the registry office, it means that the government body is incompetent in this matter.

This happens when raising common minor children, having jointly acquired property, or one of the applicants disagreeing with the divorce. In such a situation, you will need to go to court.

To file a claim, you must provide the following documents:

• passport;
• Marriage certificate;
• receipt of payment of state duty;
• documents for minor children;
• certificates and certificates of joint property.

The documents are accompanied by a claim demanding divorce, division of property and parental responsibilities. If the papers are incorrectly drawn up, the court may return the application and give time to correct them.

Download the application for refusal of divorce:

Refusal to divorce

How to file for division of property after divorce: sample claim, statute of limitations.

How to pick up an application for divorce at the registry office.

After submitting an application to the registry office, the spouses are given a month to restore relations. If they change their mind, they can withdraw the documents at any time. There are no special conditions for this procedure.

If the spouses do not come for a divorce certificate within the specified period, then their marriage is automatically considered preserved, and the document will lose force.

But please note that the state fee paid when submitting the application will not be refunded.

How to refuse a claim in court.

An application for divorce can only be submitted to the judicial authorities by one of the spouses. At the same time, it can be considered by government bodies for a period of 1 to 3 months.

If by the time of the court hearing the spouses have reached an agreement and reconciled, then the applicant has the right to withdraw the claim.

In the case when this happens directly during the proceedings, an oral statement from the plaintiff is sufficient.

It is recorded in the meeting documents. If the decision to reconcile was made before the start of the court showdown, then a written request to terminate the case will be required.

If the hearing has already taken place and the verdict has been rendered, it will be impossible to withdraw the divorce application.

In order to maintain family life, spouses will need to re-register their relationship. If the plaintiff withdraws the application, he will subsequently be able to submit it again to terminate the relationship, both to the registry office and to the judicial authorities.

It should be noted that sometimes restoration of marriage is practiced. This procedure is possible in a situation where the relationship was ended based on a court decision due to one of the parties being declared missing or dead.

If both spouses decide to restore the relationship, then a court hearing is scheduled where the previous decision on divorce is declared invalid.

Legislative acts stipulate that both parties must agree to restore the marriage. The exception is cases when the other party has already formalized the relationship with another partner. In such situations, it will not be possible to restore the marriage.

Divorce with a child under 1 year of age: on the initiative of the mother and on the initiative of the husband.

Differences between unofficial and registered marriage

In official and civil marriages, the divorce procedure is somewhat different. The concept of an informal union has changed somewhat in recent years and is perceived differently. Now this is the customary name for those spouses who live together, have a common life, and often children.

The main difference between an unofficial and an official marriage is the lack of registration of existing relationships. To create a civil family, it is enough to simply recognize yourself as such. The couple decides to wait or completely refuse to register the relationship in the registry office. As a result, such a marriage is not recognized by the state, which means that in the event of a divorce, resolving any problems relating to the union of common-law spouses will not be an easy task.