Divorce without the consent of the spouse. Instructions for filing an application unilaterally

A prerequisite for marriage is its voluntariness. That is, the husband and wife must want to start a family and maintain it. If one of them does not want to maintain the union, then the marriage can be dissolved.

If a husband and wife came to the idea of ​​divorce together and they do not have common children, then they can submit a joint application to the registry office. In other cases, only one of the spouses can initiate a divorce.

Let's look at what is considered a unilateral divorce, where to file it and how to do it.

Is it possible to get a divorce without the presence of a husband or wife?

As a rule, a marriage is dissolved with the participation of both spouses. Mutual consent implies a simplified termination procedure and therefore does not take much time. But there are often situations when one of the parties, for whatever reason, does not appear for the procedure for dissolving family ties. However, this will not be considered a sufficient reason to reject the divorce petition.

Divorce is a common occurrence among married couples.

Reasons for divorce when one of the couple is absent:

1. When the second spouse is physically unable to attend the divorce process (and this is not related to opposition to the divorce).
2. Intentional absence (refusal to participate in the divorce proceedings due to disagreement with the divorce).
3. Reluctance to meet with your spouse.
4. Aggressive behavior of one of the parties due to rejection of the divorce.
5. Lack of information about the spouse’s place of residence.

Video: example of divorce without the presence of a wife

When it is impossible to attend a divorce due to circumstances

It sometimes happens that the other half is not able to appear at the registry office or court for the divorce procedure, even if they agree to such a process.

The reasons for this may be:

• distance from the place where the divorce process is to take place (residence in another city);
• professional employment in another area;
• absence due to physical condition (serious illness or disability).

If it turns out that the second spouse cannot come to the registry office or court, but he agrees with the decision to divorce, then in this case it is necessary to obtain evidence of the very fact of impossibility of presence. In addition, he must confirm his knowledge of the procedure being carried out. The absent person is required to file a claim for divorce without his participation and consent to the divorce in the form of a written statement.

Refusal of one of the spouses in the presence

What to do if one of the spouses refuses to take part in the trial and receive rulings and subpoenas? If we are talking about the plaintiff, then the case may be postponed or terminated due to failure to appear without good reason. If the defendant refuses to come to court and ignores notices, the judge has the right to make a decision in absentia. In practice, in divorce proceedings, the court will still adjourn the first hearing if the other party has not given notice of the proceedings in absence.

Where to contact

Where to file for divorce depends on the circumstances.

If at least one of the parties has decided to divorce, you should contact the registry office or court

Table: places to apply for divorce

Legal consultation

To submit an application in the form of a claim without any problems, you will have to pay a state fee of 650 rubles. After the decision is made and becomes valid, a similar fee is paid when applying to the registry office to obtain a document on the official separation.

If documentation is submitted to the registry office through “State Services”, a discount is provided, and instead of 650 rubles. you only need to pay 455 rubles.

Issues resolved during the consultation

If, in addition to the dissolution of a marital marriage without the consent of your wife, you want to resolve additional issues in court, you can get advice from MIP specialists. Additional claims may be considered within the framework of one civil proceeding:

• On the collection of alimony payments;
• On determining the place of residence of a minor.

Also in the claim you can indicate a requirement to deprive the wife of parental rights, to determine the order of communication with the child, etc. Let’s consider all the nuances in more detail.

Consultation on the collection of alimony

If the child remains with you, you can collect alimony from your wife for his maintenance:

• As a share of salary: 25% for one, 33% for two, 50% for three or more;
• In a fixed amount: if the spouse does not have official earnings or she receives a salary in foreign currency. The amount of payments is established by the court depending on the subsistence level;
• In a mixed amount: if the wife has an official income, but in addition she receives earnings in a variable amount. In this case, she will pay a set share from her salary, and a fixed amount from her changing income.

If you want to file for divorce, but the children remain with your wife, the issue of alimony will be resolved when she presents a counterclaim.

Consultation on leaving a child with one of the parents

The rights of parents in relation to common children are the same, so if you wish, you can keep them for yourself, and your wife will pay alimony. To do this, you need to reflect in the application for divorce without her consent the requirement to leave the minors with you.

What factors will be taken into account by the court when considering the case:

• Financial and property status of the parties. If you earn more, you have your own home, and your wife has none of this, the chances of leaving the children with you increase, but this does not guarantee a decision will be made in your favor 100%;
• The children's relationship with each parent;
• Opinion of children over 10 years old. This is what is most often decisive.

The court may also take into account a number of other circumstances. You can get details and possible options for the development of events in your case at a consultation with lawyers specializing in issues of divorce, both by mutual desire and without the consent of the wife or husband.

Author of the article

Kuznetsov Fedor Nikolaevich

More than 15 years of experience in the legal field; Specialization - resolution of family disputes, inheritance, property transactions, disputes over consumer rights, criminal cases, arbitration processes.

What to do if it is not possible to attend the divorce

In the event that it is not possible to be present at the registry office or court, the absent person can use the help of his representative, who will act on his behalf in the above-mentioned authorities. It is worth keeping in mind that the representative will be able to fulfill his role only after the fact that a power of attorney has been issued to him, which must first be certified by a notary. A representative can perform the entire range of responsibilities for you or only partially. In the first case, he carries out the entire procedure from filing an application and other documents to receiving a divorce certificate; in the second, he only prepares documents and is present in court when required by law.

If it is not possible to come to court hearings, you can entrust this to your representative

In addition, a divorce without presence can be carried out with notarized consent from the defendant. The plaintiff must indicate in the claim a request to consider the divorce case in his absence.

Automatic divorce

The absence of a spouse does not provide grounds for refusal to terminate the marriage relationship if one of the partners insists on it. Refusal to attend a meeting does not serve as an argument in favor of maintaining the relationship, although in this case the waiting period increases.

To make a positive decision on a divorce application, the court will need:

1. Establish the fact of notification of the filing of a claim and the claims.
2. Record notification of the absent person about the date and time of the meeting.

According to Article 113 of the Civil Procedure Code, participants in court proceedings and interested parties are invited to court through a summons sent by mail, telegram, telephone message and other available means of communication. The judge, when making a decision in favor of the plaintiff, must be guided by the fact that the absent person has the right to challenge the decision and go to court to have it declared illegal.

The nuances of divorce through the registry office with the consent of both spouses

The table above shows the conditions under which a divorce is carried out in the registry office. If the spouse is sentenced to prison, a pre-certified court decision will be required to confirm this fact. This also applies to the case when the spouse is recognized by the relevant authorities as missing or incompetent.

Required documents

To dissolve a marriage within the registry office without the presence of the other half, you will need:

1. A written application for divorce, drawn up according to the established template. The form can be found here.
2. Applicant's passport.
3. Marriage certificate.
4. Receipt of payment of state duty. If the spouse is missing or deprived of liberty, then it is expected that 350 rubles will be charged. for the procedure being carried out. In the event that the divorce is carried out by mutual consent or as a result of a court decision, the amount charged will be 650 rubles. on each side.
5. Documents confirming the impossibility of participating in the procedure (court decision, consent, notarized, etc.).

The civil registry office can dissolve a marriage even in the absence of one of the spouses

Conditions for trial

In a divorce lawsuit, the spouses act as plaintiff and defendant, as in any other dispute.

The Civil Procedure Code of the Russian Federation allows the following conditions for consideration of a case without the participation of the plaintiff or defendant:

• conducting business through a representative;
• sending a corresponding written statement to the court with a request to consider the case without one’s presence;
• failure of the defendant to appear at a court hearing without good reason.

Failure to appear in court without notifying it and without expressing your position significantly reduces the chances of having your interests taken into account when considering the case.

If the failure to appear was not due to valid reasons, then it will be almost impossible to challenge the decision.

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

• long-term absence from the place of residence (service in the Armed Forces, business trip, etc.);
• having a serious illness or being hospitalized;
• territorial distance from the location of the nearest civil registry office.

With the help of our lawyers, any of the spouses will be able to prepare and send to the court the specified statement, allowing the court to consider the case on the merits in the absence of one or both parties, and also taking into account your position on the case.

Do I need to appear in court?

The appearance of the divorce initiator at the court hearing is mandatory. Because if you fail to appear at the trial on a secondary summons, the judge has the right to leave the claim without consideration, unless the defendant demands its consideration.

You can do without personal presence:

• declare the participation of a representative in the case by issuing him a notarized power of attorney;
• send a petition indicating the valid reasons for the absence and with a request to consider the case without your participation.

The defendant is also subject to these conditions, however, his failure to appear without good reason is not grounds for postponing or dismissing the case.

Established practice and law allow the applicant to request consideration of the case in his absence directly in the statement of claim.

Expert opinion

Stanislav Evseev

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

However, consideration of a divorce case in the presence of controversial issues may take an unexpected turn in the absence of the plaintiff or defendant, and therefore it is better to take care of protecting your interests in advance.

Our experienced lawyers are not only ready to advise you free of charge and online right now, but also, if necessary, will protect your interests in the divorce process and resolve any conflict situation.

What to do if it is not possible to come to court?

In this case, it is enough to send an application to the court with a request to postpone the court hearing or with a request to consider the case in the absence of a party.

It is highly advisable to indicate in the request for adjournment:

• validity of the reason for non-appearance;
• the need to appear in court: explanations of the case, presentation of evidence, etc. – that is, those actions that a party to the case necessarily plans to do when appearing at a court hearing.

Postponement of a case is a right, but not an obligation of the court. The judge evaluates the evidence presented according to his inner conviction and may recognize the reasons for non-appearance as disrespectful.

In this case, the judge’s refusal to postpone the trial can be reflected in a later appeal against the decision.

Presence of a representative

Conducting any legal matter through a representative is the right of each party. To send a representative to the divorce court, he must be issued a notarized power of attorney.

A representative's power of attorney can be:

1. Full - with the right to sign the claim, refuse it, receive a certificate of divorce, etc.
2. Partial – to perform a separate legal action. For example, for representation in court with a limited range of powers.

The procedure for divorce in court

If the spouses have not found mutual understanding, and they also have children together, then the courts cannot be avoided. But even in this case, the legislation provides for the possibility of the absence of one of the parties.

Documents, each of which is independently a condition for divorce:

• a statement of claim with a request to consider the case without the participation of the plaintiff;
• documentary evidence of the inability to be present and a petition to consider the case in the absence of the plaintiff or defendant;
• written and notarized consent to divorce and petitions to consider the case without the participation of the defendant;
• power of attorney to conduct divorce proceedings by a representative of the plaintiff or defendant.

Divorce proceedings without a plaintiff

If the divorce is expected without the presence of the plaintiff, then the statement of claim indicates the necessary information: the address to which the court will send the plaintiff comprehensive information about court hearings, as well as court decisions.

In addition to the statement of claim, you will need:

• Marriage certificate;
• children's birth certificates;
• documents confirming the reason for the plaintiff’s absence;
• a copy of the power of attorney to conduct the case by the representative of the plaintiff.

In order for the divorce process to take place, it is necessary to file a claim for divorce without the presence of

Divorce in court without a defendant

Often, the defendant takes advantage of the opportunity provided to him by law not to attend court hearings. In such a situation, he will be required to:

• consent to divorce in writing with notarization;
• a petition to consider a divorce case without the participation of the defendant;
• power of attorney to conduct divorce proceedings by a representative of the defendant.

Absentee ruling

The courts may rule on divorce in absentia if:

1. The defendant is absent from the court hearing.
2. The defendant was informed of where and when the meeting would take place.
3. The defendant did not provide evidence that the reason for the absence was valid.
4. The plaintiff will be satisfied with the court's default judgment.

But this does not mean that in the absence of a defendant, the court will necessarily make a decision in absentia. The judge has the right to postpone the hearing by informing the defendant about it. If a default judgment is entered, the court must send it by registered mail with notification no later than 3 days after the entry. The defendant can overturn the decision if he provides evidence of his absence for a valid reason.

Automatic divorce in case of failure of the spouse to appear

In addition to the above-mentioned method of divorce, there is another one provided for by law. We are talking about automatic divorce. The court may resort to such a decision if it has evidence that the defendant is informed about the content of the claim and the plaintiff’s demands, as well as is aware of when and where the court hearing will be held.

If the defendant ignores the court hearing, a decision may be made without his participation

How long does a divorce take in the absence of one of the spouses, how to make it quick

The minimum period for conducting a divorce procedure without the participation of one of the parties is considered to be a month from the date of filing and acceptance of the claim. In reality, the procedure is often delayed. But it speeds up if:

• the defendant’s request to consider the case without him will be submitted to the court in advance;
• A representative of the defendant will be present in court.

Reasons for refusal of divorce

The court may not satisfy the demands of one of the parties for divorce if the statement of claim was not drawn up properly, namely, it does not reflect a request to consider the case in the absence of the plaintiff, and the plaintiff himself did not appear at the hearing.

If the family has a child who is less than a year old, or the spouse is pregnant, then the courts will not consider the claim from the husband.

If one of the parties expresses its disagreement with the upcoming divorce, then, as mentioned above, this is not a basis for refusing the claim. But the court in such a situation can allocate the couple time for reflection and reconciliation (1-3 months).

Video: how to file a divorce petition without the help of a lawyer

❗ Instructions when going to court

If the divorce is going through the court, then the procedure is as follows:

• first, an application for divorce is submitted;
• documents that are the basis for such termination are attached to it;
• the applicant must appear at a preliminary hearing: its date is set by a court decision based on an assessment of the submitted documents;
• at the preliminary meeting, a decision will be made on the need to set a period for possible reconciliation of the parties (up to three months);
• after the expiration of the period established by the court for reconciliation of the parties, a decision on divorce is made;
• with a court decision that has entered into force, you should go to the registry office and obtain a divorce certificate.

What documents will be required

The following must be attached to the application for divorce:

• documents confirming the presence of minor children (if any - birth certificates and copies of passports for those who have reached the age of 14);
• agreement on the order of residence of children (if it was concluded between spouses);
• list and value of property to be divided;
• receipt of payment of state duty.

How the new law protects the housing interests of a child when parents divorce

Read

Why, in most cases, a child in a divorce remains with his mother and not with his father?

More details

In what order are credits and debts divided during a divorce?

Look

How to divorce a foreigner without his presence

If the spouse, as a citizen of another state, does not interfere with the divorce, the entire procedure carried out does not differ from the one when the marriage is dissolved by citizens of the Russian Federation.

Difficulties may arise in the following situations:

• there is no notarized consent of the spouse;
• uncertainty regarding the location of the court hearing;
• difficulties with notification of the place and time of the court hearing.

It is worth considering that if the spouses cannot make a decision that would suit both parties, the period of living apart increases to three years. If the foreign spouse does not live in Russia, then the statement of claim is sent to his last known place of residence.

In the application, the plaintiff must indicate that he does not know the defendant’s place of residence. If his residence address is known, then you should point out the difficulty of going to him for a divorce, and also refer to the right to terminate family relations through the court of the Russian Federation.

https://brakexpert.ru/razvod-s-inostrancem-bez-ego-prisutstvija.html

How to give consent to a divorce from another city?

There are a great many situations when a couple wants to divorce, but at the same time live separately for a long time, in other cities. A marriage can be dissolved both at the place of its conclusion and at the place of official registration of either spouse. But what if the husband and wife live in different localities?

To do this, it is not at all necessary to go to the place of divorce, especially if the decision to end the relationship was made mutually. Spouses may well get divorced from another city, but only on the condition that one of them is ready to come to the registry office.

Important! If there are children, the termination of the marriage will be carried out in court and the second spouse will have to either come to the hearing or inform the court that there are no objections to speed up the hearing.

1. In case of divorce through the registry office. A spouse living in another city must fill out Form No. 8, have his signature certified by a notary and send it to the address of the civil registry office where the first spouse plans to apply.
2. During a divorce through the court. It is enough to send by mail an application with a notarized signature of the defendant acknowledging the claim, indicating your consent to the termination of the marriage. After the court receives the document, the marriage will be dissolved in the shortest possible time.

Read more about the procedure for terminating a marriage from another city here.

Important! If you have an electronic digital signature, it is possible to get a divorce remotely at the Civil Registry Office using the State Services portal. Read more about the procedure for divorce through State Services here.

At the registry office

According to the provisions of Art. 33 of the Law “On Civil Status Acts”, divorce through the registry office is allowed only in the presence of one of the spouses.

It is impossible to divorce through the registry office in absentia in the absence of both spouses, as is directly stated in Part 4 of this article. At least one of the spouses must arrive at the institution after a month has passed from the date of filing the divorce registration application.

A similar rule applies in case of divorce due to the circumstances specified in Art. 19 of the RF IC - the applicant will have to appear at the registry office.