Sample statement of claim for recognition of marriage as fictitious

Purpose and reasons for creating fictitious marriages

There is no uniform definition in the law of what a fictitious marriage is. Therefore, in practice, conflicts often arise between participants due to the inability to correctly interpret the provisions of the law. The second problem is that the court makes a decision on fictitiousness mainly according to the subjective opinion of the head judge.

The main goal of a marriage union is to create a family, which is accompanied by the birth/adoption of children, running a joint household, and mutual support. The reasons for marriage are different: love, pregnancy, the habit of constant presence in the life of a particular person. If the union is formed for another reason, then it may be recognized as fictitious in court.

The most common reasons for creating fictitious marriages:

• obtaining a residence permit in Russia (after registering an apartment, a swindler can not only initiate a divorce, but also try to get part of the real estate);
• obtaining citizenship of the country of the second spouse under a simplified scheme;
• material benefits that the second partner may not be aware of;
• the desire to travel abroad (relevant for Russian girls who want to marry a foreign citizen).

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Time limits for dissolving a fictitious marriage through court

Consideration of such applications on average takes from one to two months. Based on the results of the consideration, the court makes a decision and if the claims are satisfied, the court is obliged to send an extract from the decision to the civil registry office within three days to issue the appropriate certificate of divorce. A marriage declared invalid by a court does not give rise to the rights and obligations provided for by the RF IC, but this provision does not apply to children born in this marriage and the parties recognized by a court decision as a “bona fide spouse”. The parties should not forget that in accordance with the provisions of Part 3 of Art. 29 of the RF IC, the court cannot recognize a marriage as fictitious if the persons who registered such a marriage actually created a family before the court considered the case. Based on the results of the consideration, a decision is made, which can be appealed to a higher court within 30 days from the date of receipt of the reasoning part of the court decision.

Evidence of a fictitious marriage

When initiating a divorce, the interested spouse must pay special attention to the collection of evidentiary materials. The scam will be confirmed by documents containing information about the following facts:

• after marriage, the couple did not live together, did not run a common household (the swindler avoided living together in every possible way);
• lack of material assistance from the second participant (we are not talking about unemployment, but about evading shared financial support);
• the swindler intensified his efforts after the wedding, aimed at violating the property rights of the second participant (registration registration, obtaining a loan, purchasing expensive property).

The court's review is carried out only on the basis of evidence presented by the participants during the consideration of the claim.

What time period is given for reconciliation between spouses upon divorce?

Annulment of marriage

Example of a statement of claim

Statement of claim to declare a fictitious marriage invalid

On March 27, 2021, a marriage was registered between me and the Defendant in the Civil Registry Office of the Central District of Onega. A marriage certificate series AP number 79869 was issued.

However, the actual marriage relationship between us has not yet been created. We do not live together, we do not run a common household, there is no common property. There are also no personal relationships. Varkhmistrov Daniyar Adkhamovich, a citizen of the Republic of Uzbekistan, created a marriage with the aim of obtaining a temporary residence permit, and subsequently Russian citizenship. I didn’t know about his goal at the time of marriage; I was counting on starting a family.

Witnesses can confirm the circumstances I have outlined: Victoria Semenovna Polyakova, my mother, with whom I live together, neighbors: Ivan Sergeevich Petrov (Onega, Papanintsev St., 12, apt. 99), HOA certificate on family composition, extract from the house register about persons registered in our apartment. Moreover, as far as I know, the Defendant is registered at a different place of residence (different from mine), which can be confirmed by requesting evidence (request to the Department of the Federal Migration Service).

In accordance with Art. 27 of the Family Code, a marriage is recognized as invalid by the court, and a marriage registered without the intention of creating a family by the spouses or one of them is fictitious and invalid.

Based on the above, guided by Articles 27, 28, 30 of the RF IC, 131-132 of the Code of Civil Procedure of the Russian Federation,

1. To invalidate the marriage concluded between me and the Defendant;
2. Cancel registration record No. 3-TO No. 3876352 OZAGS Central District of the city of Onega, Arkhangelsk Region.

1. Copy of the statement of claim
2. Receipt for payment of state duty
3. Marriage certificate
4. HOA certificate on family composition
5. Extract from the house register

05.05.2018 D.I. Varkhmistrova

Refusal to recognize the marriage as fictitious

The legislation establishes a list of circumstances under which a claim to recognize a union as fictitious will not be considered:

• couple living at the same address;
• mutual purchase of property for a house;
• mutual care;
• moral support (for example, in the event of the death of relatives);
• joint farming;
• the emergence of mutual friends.

The court prepares a notice of refusal to accept the statement of claim, indicating the reasons for the refusal.

How to file a claim for invalidation of a fictitious marriage in court

The plaintiff files such a claim in the district court at the defendant’s place of residence. If it is not known, then at the defendant’s last known address of residence.

Copies of the application itself and all attachments according to the number of defendants and third parties are attached to the claim. The state fee for such cases is 300 rubles. The court usually considers such cases within 2 months. To speed up the process, it is worthwhile to submit motions to call witnesses and request evidence (if necessary) at the preliminary hearing. So that by the next hearing all possible evidence in the civil case will be presented to the court.

Legal consequences of recognizing a marriage as fictitious

Confirmation of the fictitiousness of the marriage union is the basis for filing a claim in court. The petition is submitted by the spouse who did not know about the hidden motives for the marriage. Depending on the reasons for registering official relations, the following consequences may occur for the participants:

• retention and full return of a mortgage loan received due to marriage registration (for example, for military personnel);
• cancellation of social subsidies, which only families can apply for (if property was purchased with the monetary preferences received, it is subject to alienation);
• revocation of illegal citizenship (in addition, perpetrators may be held legally accountable);
• abolition of social benefits and preferences, since the application will be considered illegal (committing fraudulent actions in order to obtain privileges will entail punishment under the Code of Administrative Offenses or the Criminal Code of Russia);
• review of court cases related to the adoption of a child (the adoption is not annulled, but only revised taking into account newly emerged circumstances).

The Government is considering a bill proposing to introduce additional penalties for registering a fictitious marriage. The size of the fine will vary between 100-300 thousand rubles. Sanctions will only apply to those persons who deliberately entered into a fictitious union. The date of adoption of the law is not yet known.

Property rights

After marriage, mutual obligations and rights arise between partners, which cease only after divorce. This category of legal relations includes:

• recognition of all income as joint;
• recognition of property as common;
• mutual registration of credit and debt obligations;
• the impossibility of independent disposal of property without the notarized consent of the second spouse (depending on the category of values, only oral permission may be sufficient).

Taking advantage of mutual income, spouses receive loans, purchase real estate and movable property. Subsequently, the fraudster eliminates himself, and the second participant has to pay the debt in full. To prevent such circumstances, the following algorithm for terminating property legal relations between spouses is provided:

• all completed legal transactions are canceled;
• debts are fully repaid to creditors;
• the property must be returned to the sellers;
• the exchange of material assets within the family is canceled (for example, donation);
• If husband and wife purchased valuables that are not subject to additional state registration (household appliances, furniture), the spouses can divide the property independently or with the involvement of the court.

Fictitious marriages in other countries

Citizens of many countries are thinking about what a fictitious marriage is and how to make it look real. The reasons for its conclusion are the same, but the responsibility in each state is different.

• In the United States, there are strict rules for registering marriages with foreigners. There, spouses are checked very carefully, involving relatives and friends in the procedure. Any discrepancy may threaten the couple with annulment of the marriage and deportation of the spouse. Often more serious punishment is used, and both spouses are responsible. According to American laws, they are required to pay a heavy fine and spend up to 5 years in prison. Checks to identify fictitious marriages with foreigners are carried out very often.
• Germany is known for its strict laws regarding fake marriage. For example, in the case of a foreign citizen, he will not only be deprived of the right to reside in the country, but will also be sentenced to up to 3 years. And after that they will also ban entry (most often this ban is for life). Fictitious marriages with foreigners are detected very simply - various checks, surprise home visits and testing are carried out.
• In Belarus, a system of student distribution after graduation is still used. But marriage can be the reason that a young specialist is left in his hometown. That is why student fictitious marriages are far from uncommon here. But it is almost impossible to detect this fact.
• In Russia, no additional liability has yet been provided other than the legal consequences of a fictitious marriage. But deputies are actively developing draft laws that include certain sanctions for fictitious marriage with foreign citizens. Several of them received support from the relevant relevant committee of the State Duma. In particular, the authors propose to introduce a rule containing administrative liability (a fine of up to 300 thousand rubles), as well as forced labor or imprisonment for a period of up to 3 years.

Lawyer's answers to frequently asked questions

Is privatization through a fictitious marriage a fraud, what consequences can this lead to?

No, privatization is the process of registering property rights to a land plot obtained legally. The only way to obtain it is by inheritance, since in order to carry out other actions with the land, preliminary privatization and apartment registration are necessary.

If a fictitious marriage was concluded for the purpose of obtaining Russian citizenship, will the citizen be deprived of citizenship after the registration is recognized as fictitious?

Yes, the perpetrator may additionally be held legally liable.

Can the discovery of a fictitious marriage for a foreigner result in deportation to his homeland?

Yes, if it is confirmed that the reason for marriage is Russian citizenship.

Who can initiate legal proceedings to recognize the fictitiousness of a marriage?

A fictitious marriage violates the rights of one of the spouses, therefore, if grounds for termination of an unfair union are identified, one of the spouses has the right to file a statement of claim in court.

Additionally, the following may prepare a petition:

• guardian of an incapacitated spouse;
• a prosecutor or other official who became aware of the fictitiousness of the marriage.

If fictitious unions are associated with obtaining illegal registration or an unauthorized residence permit in the country, they pose a threat to the security of the state. Therefore, representatives of state/municipal authorities have the opportunity to file a claim.

Grounds for filing a claim

Russian legislation clearly defines situations in which a formalized marriage can be declared invalid. These include the following violations:

• Lack of consent of at least one of the spouses.
• The marriage is officially recognized as fictitious.
• One of the spouses is under 18 years of age and there is no consent from the guardianship authorities. An application for annulment of a marriage can be filed by parents or representatives of government agencies.
• One (or both) of the spouses is already in a marriage that took place outside the Russian Federation. This case is separately prescribed in Article 156 of the RF IC.
• One of the spouses is officially declared incompetent.
• There is a family connection between the spouses.

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Please note: according to Russian laws, the adopted person and the adoptive parent are also considered close relatives.

• There was a concealment by one of the spouses of the fact of a venereal disease. When filing a claim to declare a marriage invalid in this case, it is necessary to have evidence that the second spouse was not aware of the presence of the disease. In some situations this can be difficult. If this fact cannot be proven, then the court will have no reason to consider the marital union invalid.

The circumstances described above must already exist at the time of marriage registration. Article 28 of the RF IC provides a list of persons who can file a claim.

Responsibility for fictitious marriages

In 2021, there is no administrative or criminal liability for fictitious marriages . But the guilty party may incur civil liability if the second spouse decides to recover compensation for moral damages from him .

What nuances are important to consider:

• If the marriage was registered for simplified registration of citizenship, temporary residence permit or residence permit, all documents will be canceled and the foreigner will have to leave Russia;
• Only persons who organize sham marriages are subject to criminal liability. Spouses - no.