Failure of one of the spouses to appear in court for a divorce: what will happen if you don’t show up

Not everyone understands what consequences exist as a result of failure to appear in court in divorce proceedings. If there is a good reason, then there will be no consequences. But if the summons is deliberately ignored, various sanctions are possible. You must be prepared for this in case of violation of court requirements. It is important to understand that sanctions are imposed not only on the plaintiff or defendant, but also on other participants in the case.

General procedure for divorce in court

Let's take a look at the process of divorcing two spouses in court.

Procedure and procedure

The circumstances under which this procedure for divorce is provided are expressly stated in Article 21 of the Family Code of the Russian Federation:

• presence of common children under 18 years of age;
• husband or wife refuses to divorce;
• one of the spouses does not come to the registry office.

The application is sent to the court at the plaintiff’s place of residence if information about the second party’s residential address is not available. In other cases, they are guided by the registration of the defendant.

The court notifies the court of the date of the hearing by summons. At the first hearing, the reason for the divorce is determined. If the husband and wife insist on divorce and there are no disputes, the court makes a decision and the case is completed.

When one of the parties wants to save the family, a period is set for reconciliation of the parties within 3 months. If, after the elapsed time, the spouses have not reached a compromise, the court issues a decree to terminate the marriage.

Article 17 of the Family Code of the Russian Federation establishes that divorce proceedings cannot be initiated at the initiative of a man without the consent of the woman during her pregnancy and until the child reaches 1 year of age.

Documents for divorce through court

Before filing a statement of claim, the plaintiff must prepare:

• passport - copy;
• extract from the house register - original;
• marriage certificate - original;
• child’s birth certificate – copy;
• child’s passport – copy;
• receipt for payment of state duty - original.

In case of additional claims, you must attach documents that prove the plaintiff’s position:

• when challenging paternity - the results of a DNA examination or other data excluding the paternity of the plaintiff;
• when dividing property - title documents for the disputed property, appraisal report;
• when collecting alimony - information about the applicant’s income, evidence of incapacity for work;
• when determining the child’s place of residence - a description from the place of study, a psychologist’s conclusion.

Statement of claim

The statement of claim to the district court must be submitted in writing. It is necessary to describe information on each requirement and be sure to make a reference to the relevant provision of law.

Note! Even when filing a claim through the GAS Justice portal, you must make the claim in writing, scan it and convert it to PDF format.

The claim must contain not only information about the parties, but also information about third parties. Who the third parties will be depends on the claims in the claim:

• a dispute about the place of residence, the procedure for communicating with children or challenging paternity - guardianship departments at the place of residence of the parent and child;
• dispute over division of property – co-owners of property;
• when challenging paternity - the registry office.

Sample

The claim must include the following information:

• name of the court;
• details of the parties + phone numbers;
• information about third parties;
• amount of state duty;
• name of the claim;
• information about marriage;
• information about the presence of children;
• reasons for divorce;
• information on other requirements;
• reference to law;
• claim;
• list of applications;
• date and signature.

What is the difference between divorce without presence and divorce without consent?

Divorce can only be initiated by one party. There are two fundamentally different situations for divorce:

• physical absence of the husband or wife from the meeting;
• the defendant's refusal to divorce.

In the first case, we are talking about the fact that the spouse does not appear at court hearings for circumstances not related to his attitude to the divorce. The second situation is explained by the lack of desire of the spouse to dissolve the marriage. In this case, the party who does not agree to the divorce may appear at the hearings, but express objections.

Withdrawal of claim, reconciliation, suspension

If a claim has already been filed, there is still a way back. If one of the spouses was against the divorce, he can reconcile with his other half and the process will be terminated. The plaintiff can also withdraw the claim, and if there are no counterclaims or additional claims, the process will also be terminated.

There is a procedure for suspending the case. This happens if one of the spouses is hospitalized or participates in hostilities. In such situations, it is impossible to predict how long treatment or war will take, so the trial and all associated deadlines are suspended indefinitely.

If a couple does not have children, then the state does not establish additional barriers to divorce. The biggest difficulties are to ensure that such a difficult decision is mutual, but does not cause serious harm to the health and psyche of the spouses.

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

Let's consider situations where one of the spouses did not show up for the divorce.

Will they get divorced if one of the spouses does not come to court?

The absence of one of the participants in the case is not an absolute reason for making a decision to terminate the case.

When there is no information about the notification of the party about the time of the hearing or an application has been submitted to postpone it, the judicial authority, guided by paragraph 2 of Article 167 of the Civil Procedure Code of the Russian Federation, may postpone the proceedings.

In what cases is such a divorce possible?

In the absence of one spouse, the issue of divorce is resolved in absentia proceedings (Article 233 of the Civil Procedure Code of the Russian Federation), if one of the following conditions is met:

• the party has prepared a petition to consider the case in its absence (provided for in paragraph 5 of Article 167 of the Civil Procedure Code of the Russian Federation);
• the defendant was notified of the meeting, but did not appear at the appointed time and did not notify of the reasons for this.

How and when you can use the presence of a representative by proxy

The most acceptable option to file a divorce in court without your personal presence is to send a representative to the meeting. To do this, you will need to issue a power of attorney in advance at a notary office, which must include all powers to participate in the divorce process.

The right to seek the services of a representative is enshrined in Article 48 of the Civil Procedure Code of the Russian Federation, and taking advantage of this opportunity is permitted at any stage of the consideration of the case.

Attorney by appointment. Arbitrage practice

Cases with foreign defendants who are not registered and have never resided in Russia can be especially difficult in this regard, since in most cases the plaintiff has to notify them abroad. And it’s good if the address is current and the defendant receives court correspondence. If the shipments remain not received, the divorce may be delayed.

The court may also appoint a lawyer to represent a defendant whose place of residence is unknown.

This is exactly what happened in a civil case regarding divorce from an Italian citizen. In practice, this does not happen often, but it does happen.

Statement of claim for divorce from an Italian citizen

The defendant lived in Rome and did not receive any subpoenas. In response to our inquiries, representatives of the transport company responded that the letters had not been delivered to him. The judge postponed the consideration of the case 4 times, then decided to involve an appointed lawyer as a representative of the defendant. At the 6th meeting the marriage was dissolved.

After the decision was made, the defendant's lawyer sent a request to the court for payment for his services. The judge made a ruling to pay him from the federal budget of the Russian Federation legal costs associated with representing the defendant’s interests in court.

Extract for the Registry Office and the court decision on divorce with translation into Italian

We translated the court decision into Italian and apostilled it for our trustee. Since in the future she needs to present a divorce document in Rome.

If you do not want to delve into the procedural intricacies of divorce through the court, contact our lawyers. You don’t have to go anywhere; your interests will be represented by a professional family lawyer. You can get advice on divorce by calling: + or via WhatsApp.

Divorce in the absence of the plaintiff

Below we will tell you what to do if the plaintiff does not appear at the divorce trial.

Actions of the judge

The applicant's failure to appear at the hearing does not always result in termination of the divorce proceedings. The judge's actions depend on the specific circumstances. What will happen to the case if the plaintiff does not come to court for divorce:

The hearing will take place

The meeting will be held according to the general rules of civil procedure. But for this, the plaintiff must file a petition to consider the case in his absence. The defendant's position is clarified.

The meeting will be postponed

This outcome is possible if the plaintiff fails to communicate the reason for his absence. Summons must be sent to the parties indicating the date of the next hearing.

The process will be terminated and the claim will be returned.

This result is preceded by repeated failure to appear at the meeting without good reason.

The result of non-appearance for the parties

For the plaintiff:

• if the hearing is adjourned, you will be required to appear at the next hearing;
• If the case is terminated, the right to file a similar application again is retained.

For the defendant:

• when he insists on divorce, the judge has the right to make a decision in the absence of the plaintiff.

If the spouse does not come to court

Situations arise in which a spouse who wants to divorce cannot come to the hearing himself.
In other cases, the spouse specifically avoids or is indifferent to participation in court hearings, but there were no documents from him regarding the decision to terminate the marriage. This is a fairly common situation, involving great psychological stress on spouses who have filed for divorce. The applicant must file a request for a hearing with his lawyer, whose presence in court is required to defend his interests if he does not appear.

Divorce in the absence of a defendant

Next we will look at how a divorce proceeds if the defendant fails to appear.

Actions of the judge

How can the court act if the defendant fails to appear at the hearing if there is evidence of proper notification of the date of the hearing:

• postponement of the trial (if the reasons for not attending the trial are valid and confirmed), sending new subpoenas;
• consideration of the case in the absence of the other party, if consent to divorce has been received from her.

The result of non-appearance for the parties

If the defendant did not send any statements, then if he fails to appear again, the case will be considered without him in absentia.

If the other party is absent from court for an unexcused reason, the hearing will take place and the claim will be satisfied.

Options for notifying the parties

The court must notify the participants in the process of the date and place of its holding (). The summons is sent to the parties in one of the following ways:

• by mail (registered mail with acknowledgment of delivery);
• by telegram;
• telephone message;
• by fax;
• in another way that allows recording the date of service of the summons.

The document is sent in advance so that the parties have time to reconsider their plans, freeing up time for a visit to court. Receiving a summons on the day of the hearing or the day before is a valid reason for filing a motion to reschedule the hearing.

How to speed up the divorce process if the defendant fails to appear in court

It happens that the defendant does not appear, but the plaintiff does not want the process to be delayed. Let's see what can be done in such a situation.

Possible causes and solutions

In order to avoid delaying the divorce, it is worth identifying the reasons for the defendant’s absence at meetings and preventing their recurrence. What may cause the failure of the other party to appear:

• Problems with notifying the defendant about the meeting (absence from a known place of residence, untimely delivery of mail).

Exit: personally serve the citizen with a summons.

• Force majeure (hospitalization, flight delay).

Exit: obtaining consent from the defendant to divorce or an application to consider the case in absence.

• Avoidance of participation in the process for unjustified reasons.

Solution: provide the court with compelling reasons for the impossibility of maintaining the marriage relationship, for example:

• various types of addiction of the defendant;
• separation of spouses;
• the presence of a new family on the other side.

A petition to consider the case in the absence of the defendant or consent to divorce as factors accelerating the process

1. Petition for divorce in one's absence.

It can be drawn up both by the plaintiff (to ensure consideration of the submitted application) and by the defendant (to help avoid delaying the case). The document is drawn up in simple written form.

1. Consent to divorce.

Requires mandatory notarization and is necessary in the following cases:

• defendant - a pregnant wife or raising a child not older than 1 year;
• the party cannot appear in person at the trial.

Default judgment or automatic divorce

If the court concludes that it will be possible to consider the case in the absence of a duly notified defendant who has not filed any statements, the proceedings are called in absentia. No later than 7 days after receiving a decision made within the framework of this proceeding, it is possible to challenge and cancel it.

If later the reason for the defendant’s failure to appear at the hearing, which he could not inform in advance, is recognized by the court as valid, the consideration of the merits of the case may be resumed.

How to file for divorce through court

An application for divorce is considered only through legal proceedings. This means that the applicant must draw up a statement of claim and attach supporting documents to it.

To file an application, you first need to determine which court you need to send the documents to.

1. If the spouses have decided with whom the children will live after the divorce or divide property no more than 50,000 rubles, then the application is submitted to the magistrate’s court.
2. If the claim contains additional requirements, the application is submitted to the district court.

Let's consider each option in more detail.

Divorce in court if both plaintiffs are absent

Possible reasons

When both spouses agree to divorce, they have the opportunity not to go to the hearings. Reasons for the absence of parties:

• reluctance to communicate directly with each other;
• changing of the living place;
• traveling nature of work, etc.

Procedure of the parties

In order for the case to be resolved on the merits if all participants fail to appear, the latter should take the following actions in advance:

• plaintiff: file a petition for consideration in his absence;
• to the defendant: in addition to the above application, send to the court a notarized consent to divorce.

The interests of the parties can be expressed by representatives on the basis of notarized powers of attorney.

How will the trial proceed?

The meeting may be held in the general manner if representatives of the parties are present. If all participants fail to appear and they receive requests for consideration in their absence, the presiding officer decides the issue based on the available materials.

The family will remain intact and the court will issue a ruling to terminate the case if all the conditions are met simultaneously:

• both parties did not come to the meeting and did not report valid reasons;
• requests for consideration in one’s absence were not submitted in advance;
• participants are notified of the hearing date.

There is no penalty for the failure of the plaintiff or defendant to appear at the trial.

The nuances of divorce in the registry office if one of the parties is absent

Procedure

Divorcing spouses is easier than in court; the civil registry office can help. But for this you need to meet the following conditions:

1. consent of wife and husband;
2. absence of joint minor children;
3. no disputes.

The marriage is dissolved one month after the application is accepted if at least one of the spouses appears at the appointed time to receive the divorce certificate. Otherwise, the application is canceled and the family is preserved.

Required documents

• Joint statement.

If one of the spouses cannot come to the registry office, he fills out the application separately, having the signature certified by a notary.

• Marriage registration certificate.
• Identification documents of husband and wife.
• Receipt of payment of state duty from each citizen.

If one of the spouses is missing, convicted or incapacitated

According to paragraph 2 of Article 19 of the Family Code of the Russian Federation, divorce at the request of only one spouse is possible in cases where the second:

• missing;
• incompetent;
• sentenced to imprisonment for a term of more than 3 years.

The divorce procedure in court is not easy. The failure of one of the spouses to appear at the hearings may significantly delay the case. If it is not possible to attend the hearing, steps should be taken in advance to quickly finalize the divorce.

Reasons for no-show

Spouses who have minor children or cannot agree on the procedure for dividing property are forced to divorce through the courts.
However, sometimes a husband or wife “boycotts” the hearings, which results in failure to appear at the hearing. Explanations for such behavior can be both logical and malicious (contributing to the deliberate delay of the process). The list of reasons considered valid is not regulated by law. In law enforcement practice, reasons that meet the following criteria will be convincing:

• documented;
• clearly prove the impossibility of being in court at a particular point in time.

The most common compelling reasons are:

• illness - proven by a sick leave certificate or a certificate from a medical institution;
• inability to arrive at your destination on time - temporary interruption of transport links due to natural disasters (confirmed by a certificate from the transport company);
• man-made accidents, catastrophes - recorded by the Ministry of Emergency Situations;
• the absence of a summons or its receipt on the day of the meeting is confirmed by the date stamped on the summons or postal notification of delivery;
• departure to another region is proven by a business trip order, a certificate of illness of a close relative, a birth/death certificate, etc.

If a citizen cannot attend a court hearing for a good reason, for example, due to illness, he is obliged to inform the court about this in writing. Upon subsequent appearance, the reason for absence must be confirmed with documents.

Sanctions for failure to appear at the trial are determined by the judge. If you did not have time to prepare supporting documents in a timely manner, you need to draw up a petition to request the necessary documents and then attach them to the case. Unjustified absence from a meeting entails procedural liability.