Divorce procedure if one of the spouses is against

Divorce is a right guaranteed by current legislation. As a general rule, termination is carried out through the registry office, through a joint statement of the parties. However, it is not always possible for the parties to voluntarily agree on the procedure, because one of the spouses may simply refuse to grant a divorce. In such a situation, a divorce procedure is still possible, but you will have to perform a slightly different series of actions.

Divorce in the registry office is allowed in cases where:

the spouses do not have common children under 18 years of age;
both spouses are ready for a divorce and agree to write a joint statement.

If any of the conditions are violated, you will have to get a divorce through the court.

In what cases are they required to divorce by law?

The unilateral divorce procedure is regulated by the Family Code of the Russian Federation. Article 22 clearly states that a divorce will take place even if one of the spouses does not agree to it, if it is established that their further coexistence and preservation of the family is impossible.

The court will take measures to reconcile the spouses, and will even be given time to finally consider the decision. If even after this, at least one spouse refuses to continue the marriage, it will be dissolved.

The statement of claim must provide a justified reason why further life together is not possible:

cruel treatment,
long-term separation,
spouse's drunkenness,
inability to bear children,
treason or another reason, but with a basis.

Divorce suit

Prepared in accordance with the legislation of the Russian Federation.

The header of the statement of claim contains the details of the court, its exact name, and the full names of the plaintiff and defendant.
Next, the name of the claim must be written down, the general situation of the entire case is the date when the marriage was concluded, the reason for the divorce is indicated, as well as information about the presence of common children and the presence or absence of a dispute regarding common property.
The court may also be provided with evidence confirming the reason for the divorce.
In the obligatory part of the statement of claim, the applicant asks to dissolve the marriage.
The plaintiff's signature is placed at the end of the application.

It should be remembered that the spouse may not indicate the exact reason why he decided to separate from his wife. He only needs to indicate that there are no family relationships and express his consent to end the marriage.

This document also states the amount of the state duty paid by the plaintiff, or indicates the reasons why payment is cancelled.

Where to apply

Only the court has the right to issue a divorce decision if one of the spouses is against preserving the marriage.

First you need to decide which court to go to. If, in addition to the divorce itself, you need to resolve issues about who the children will live with after the divorce, or about joint property worth more than 50,000 rubles, then you will need to write a statement of claim to a city or district court. If such issues do not concern you personally, then the application is submitted to the magistrate.

As for territoriality, as a general rule, a claim is filed in the court of the locality, region or district where the defendant is registered at his place of residence. But in accordance with paragraph 4 of Article 29 of the Civil Procedure Code of the Russian Federation, it can also be accepted at the place of residence of the plaintiff, if there are reasons for this: the presence of a young child or the inability to come to this court due to poor health or for other reasons.

If there are no children, then you can get a divorce without trial.

If the couple did not have children together, then they can separate voluntarily by submitting an application to the registry office. But you can’t always count on voluntariness.

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If dialogue is possible between the spouses, the man should try to convince his wife that the marriage will still be dissolved, it’s just better to resolve the issue without conflicts and claims against each other.

In addition, it is worth noting that for a divorce through the court, she will have to pay a double state fee - for considering the case in court and for obtaining a divorce certificate from the registry office. Sometimes these arguments work, and in order to avoid litigation, the woman agrees to a voluntary divorce.

How the case will be handled

After accepting the application for divorce, the judge will set a date for the consideration of the case and notify the time and place of the court hearing. It is usually scheduled one month after submitting the application.

note

If both spouses did not appear at the court hearing and did not inform about the reasons for the failure to appear, the judge has the right to regard this as reconciliation and terminate the proceedings.

When considering a divorce case, ideally both spouses should be present. After all, the court will find out all the reasons for the impossibility of further family life, the circumstances that led to discord in the married couple, and listen to the arguments of both sides on this issue.

The defendant (in our case, the husband) is capable of not coming to the court hearing, but this will not be a guarantee for him of preserving the family. If the judge does not consider that his absence from the divorce proceedings is due to valid reasons, he will be able to make a decision on divorce without his consent at the first meeting. But usually the meeting is postponed for a certain period of time so that both spouses can come to the meeting room and have the opportunity to listen to the opinions of both sides.

In practice, if the judge sees even the slightest chance to save the family, and the spouse who disagrees with the divorce insists on living together, the couple is given a period of no more than three months for reconciliation. We will tell you more about the timing of divorce in this article.

But if it is not possible to reconcile the spouses, and at least one of them insists on divorce, the judge decides to dissolve the marriage.

Where can I get a divorce without my wife's consent?

In most cases, it will be possible to get a divorce without the wife’s consent, but you will have to go to court (Article 22 of the RF IC). However, there are exceptions depending on the presence or absence of children:

Do you have children. If the wife is pregnant or has a common child under 1 year old, it will not be possible to divorce without consent. The court will refuse to accept the application on the basis of Art. 17 RF IC. Divorce proceedings in the presence of a child over 1 year old and the absence of the spouse’s consent are possible, but the time frame may be delayed due to the appointment of reconciliation.
No children, wife is against it. Direct road to court.

Important! There is no point in trying to get a divorce at the registry office in the absence of your wife’s consent - the application is submitted only jointly, or in cases where her opinion is not required.

When is the wife's consent not required?

According to Art. 19 of the RF IC, divorce in the registry office without taking into account the opinion of the spouse is possible if she is declared incompetent, missing, or convicted of a crime for a term of 3 years or more.

To officially separate, it is enough to submit an application to the registry office in form No. 11, approved by Order of the Ministry of Justice dated October 1, 2018 No. 201, and pick up the completed certificate.

The wife does not give a divorce and blackmails

Blackmail may concern bans on meetings and communication with children, disclosure of family secrets, damage to a man’s reputation, and turning relatives against him. There is no need to worry - the law is on the side of the spouse:

According to Art. 61 of the RF IC, parents have the same rights and responsibilities to their children. A wife cannot prohibit her husband (even her ex) from seeing their common child. When faced with such a situation, it is recommended to go to court to determine the order of communication. The norm is also relevant for men who have adopted children of women from previous marriages: according to the law, they are considered full parents.
Based on Art. 152 of the Civil Code of the Russian Federation, in court, you can demand a refutation of information that discredits honor and dignity, and recover damages and moral compensation.

It’s more difficult with relatives: if they are opposed to a man, no court can oblige them to communicate with him.

Divorce without notifying the spouse

Some women, having puzzled over how to get a divorce without the consent of their spouse, resort to a trick - they get a divorce alone. Often they are led to this thought by the fear of scandals, showdowns, persuasion, intimidation and even assault.

They deliberately conceal the fact that they filed for divorce, do everything possible to ensure that court notices do not reach the recipient, regularly attend court hearings alone, and ultimately receive a divorce.

The former spouse can only come to terms with this fact and begin to build his life anew. Although those who are especially stubborn and zealously want to save the family can appeal the court decision to terminate the existence of the marriage union, annulling the fact of divorce.

But still, it is not advisable to resort to deception, but to try to resolve the issue peacefully.

For a unilateral divorce, you will need to collect a package of documents:

statement of claim;
applicant's passport;
marriage certificate;
receipt of payment of state duty for the divorce procedure

This is the main list. In addition, additional papers may be required. Read more in this article https://divorceinfo.ru/3208-usloviya-dokumenty-dlya-razvoda-v-odnostoronnem-poryadke

What to do if your wife does not allow you to see your child?

Sometimes there are situations when a wife specifically prohibits her husband from communicating with his own child, even if their marriage has not been officially dissolved. In accordance with the law, a child has the right to be raised with two parents at once. And no one should interfere with this. If the child’s father is still not allowed to see him, then he has the right to go to court to establish the order of communication with the child. In case of violation of the court decision, the wife can be brought to administrative responsibility.

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Reasons for divorce without filing an application to court

The family legislation of the Russian Federation in Article 19 provides for three exceptional reasons why a divorce can always be filed if one of the spouses is against it. To do this, it is not necessary to write a statement of claim to the court; you can easily obtain a divorce at the registry office.

The spouse is declared dead or missing by the court.
There is a court decision declaring a spouse incompetent.
The husband was convicted of committing a crime and is serving a sentence of over three years in a correctional facility.

It will be enough to draw up an application in Form No. 9 and take it to the civil registry office at the place of residence or marriage registration.

How to file a divorce if there is no marriage certificate?

Often, spouses who initiate a divorce are faced with the following situation: the wife does not agree to dissolve the marriage, refuses to submit an application, and has safely hidden the marriage certificate. How to file a divorce if there is no marriage certificate?

Answer: in such cases, divorce will occur exclusively in court. Lack of evidence is not an obstacle to filing a lawsuit and dissolving the union. If a married couple does not have children together and they have nothing to share, there are no problems.

A man should contact the registry office where the marriage was registered and obtain a duplicate of the marriage certificate. And then follow the above procedure - draw up a claim and send it to the court at the place of residence of the spouse. Attach a copy of the passport, a duplicate of the certificate to the claim, and pay the state fee. Thus, the spouse’s refusal is not at all an obstacle to divorce.

Divorce procedure

The legislation allows the termination of a marriage unilaterally both through civil registry offices and in the judiciary. If the second spouse does not object to the divorce decree, but for good reasons cannot ensure his presence, he can fill out an application at the registry office and have his signature certified at a notary’s office.

To file a claim in court, the presence of a second partner is not required; documents are accepted from only one party. At the same time, at the trial stage, the defendant will be able to express his attitude to the claim by filing an objection, or ignore participation in the process.

Let us consider the features of the procedure for terminating a marriage relationship with the unilateral option of submitting documents to the registry office and to the court.

Conditions for unilateral divorce

The unconditional right to make a decision to terminate family relations belongs to each of the spouses. The procedure and timing for exercising this right will depend on various circumstances, including the second partner’s opinion on divorce, the presence of children in the family, and other legally significant factors.

Termination of marriage relations unilaterally is characterized by the following features:

to initiate this divorce procedure, the opinion and consent of the second spouse has no legal significance, although it may affect the timing and procedure;
an application to the registry office or to a judicial authority is completed by only one citizen;
Unilateral options for terminating a marriage through the establishment of a registry office are expressly specified in the law; expansion of this list at the will of the parties is not allowed.

It should be understood that the second partner will be notified of the start of the divorce procedure, except in cases where such notification is impossible for objective reasons (for example, the second spouse is declared dead).

If the husband (wife) declares the need for reconciliation of the parties

The defendant has the right to petition the court to postpone the case for a while and give the husband and wife time to think and try to save the marriage. The court usually always grants such a request and gives the parties 1 to 3 months to resolve the conflict. If the judge decides to resort to this procedure himself, for example, when the plaintiff does not speak confidently enough during the hearing, then it must be borne in mind that it is possible to reduce the period only if he makes this request together with the defendant.

The deadline for reconciliation of the parties, of course, delays the case and increases the time frame. But in this situation (if you consider it excessive and unnecessary) there is also something positive: it will be much more difficult to challenge the decision in your case in the appellate and other higher authorities.

INUSTA

How to find a compromise with your wife?

If a husband really wants to save the marriage, he needs to remember that he always needs to remain human, not manipulate children, not blackmail his wife in any way, and certainly not threaten her in any way. Have children? Talk to your spouse about their emotional stress in the event of a divorce. This is a good chance to prove to her that you are a caring father, and it may also make her reconsider her decision. Discuss the situation with her from both sides - and you will definitely understand what to do next and how to behave.

USEFUL INFORMATION: How to get your ex-wife back: recommendations from a psychologist

It is worth trying to find the root of the problem, compromise, and consult not only with a lawyer, but also with a family psychologist. There is always a way out, if there is a desire. If the husband tries, the wife, seeing his desire, may well abandon the idea of \u200b\u200bdivorcing the marriage or stopping the process, even if it is already underway. In any case, if you have time, you can and should fight for your family, while drawing conclusions for yourself.

How does the spouse’s attitude affect the term?

As the experience of our company’s lawyers shows, divorce usually takes from 2 to 4 court hearings. Hence, on average, the divorce process lasts 2-3 months.

If the husband or wife is against divorce, then the period is increased by another 1-2 months. These deadlines assume that your case is handled by experienced lawyers.

If the case is not handled by a lawyer or a lawyer specializing in family disputes, another 1-2 months can be added to the period. This increase in time is due to errors and omissions that always accompany a non-specialist. And this is exactly how much, on average, has to be spent on correcting deficiencies in the claim and other documents.

Sometimes the time frame may increase for other reasons. For example, the courts themselves often make mistakes that need to be appealed to a higher court or asked to be corrected by the judge himself if they are of a technical nature. Complaints about illegal actions of the court on average add up to 2 more months, and correction of clerical errors and errors takes 1 to 3 weeks.

We often had to correct judicial errors or prevent them during the process, thereby reducing the time required for divorce through the court.

You can often find advertisements for law firms that offer a guarantee of minimum terms. Unfortunately, 10 times out of 10 it’s a scam. And you can easily verify this as follows. Demand that in the contract for the management of your case, ask to include a clause on the return of the remuneration for the case in double amount if your representative does not fulfill the guarantee! Under any pretext, you will be denied such a request, don’t doubt it...

Why does she want a divorce? Women's point of view

According to statistics, most marriages break up for the following reasons:

My husband is not happy financially.
The husband does not pay attention to the child and wife.
“Household stagnation” - alas, in the whirlwind of daily affairs, the partner forgets that the wife wants affection, compliments and romantic dates, at least sometimes.
Intervention of relatives on both sides.
Abuse of bad habits.

What to do? First, you should try to change the situation for the better. This is especially true if your wife files for divorce, there is a child in the family, and you not only want to stop her, but are ready to take any action. If a woman insists on divorce, then she has good reasons for it.

Take care of yourself, reconsider your priorities, because in order to avoid family breakdown, sometimes it is not necessary to completely change your circumstances, character or lifestyle. The reason may be hidden in a problem that is insignificant for a man, but extremely important and makes normal family life impossible from a woman’s perspective.

Try not to allow third parties into family matters related to divorce, no matter how close relatives they are. You need to fight for your family and its preservation on your own, without “advice” and “help” from relatives or friends, which can only worsen the situation.

Summing up

Sometimes it is better to separate if family life is not going well. But there are often obstacles from the other half. We figured out the question: if one does not agree to divorce, what to do. You can officially break up in any situation, even without a second participant.

This article contains answers to common questions about what to do for a married couple who has decided to dissolve their marriage. The court petition templates presented on the website will also be useful. See other sections containing information on this topic, read the comments. All additional questions can be asked to our lawyer. He will tell you how best to resolve the situation and what actions to take.