Unilateral divorce - professional help

Divorce is the termination of joint obligations and ownership of common joint property. But from the point of view of a life situation, divorce is anxiety, stress and broken dreams of a happy future.

Often, the process of divorce between spouses does not take place in a friendly atmosphere, so the question arises about the possibility of dissolving the marriage without the presence of one of the spouses.

Read below about how to get a divorce without scandals, mutual accusations against each other and the presence of one of the spouses in the divorce process.

When is divorce possible without presence?

The standard rule for ending a marriage is for both spouses to participate.

In this case, the entire procedure takes the shortest possible time, since it allows you to determine the attitude towards the divorce of both parties.

Divorce without the participation of a husband or wife is provided for by family law, but the specifics of holding a court hearing without the presence of one of the parties are regulated by the code of civil procedure.

How long does a divorce last?

When considering the timing of divorce, one should assume that depending on the method of divorce, the timing will vary. So, if a period of one month is legally established for consideration of the issue in the registry office, then if you want to get a divorce without a wife (or without a husband), then a much longer period may be required to resolve the case in court.

If only one of the couple applies to the registry office, then the procedure can take more than a month, because the registry office employees will need to collect the necessary documents according to the location of the second spouse.

In court, if necessary, witnesses are questioned, evidence is examined, and forensic examinations are possible. All this takes a lot of time, which should be remembered when going to court.

Find out more about how long a divorce lasts in different situations.

Conditions for the registry office

The Family Code of the Russian Federation allows for the following situations in which the presence of the second spouse is not mandatory when dissolving family relations in the registry office:

• The consent to divorce (application) is drawn up in a notarized application and sent to the territorial registry office;
• The second spouse is officially recognized by the court as missing or incompetent;
• The husband was sentenced to serve a sentence of imprisonment for a term of more than three years for the crime.

Accordingly, to confirm points 2 and 3, it is necessary to submit a certified and duly executed court decision (sentence).

To obtain a divorce through the registry office without presence, you must submit:

• Application for divorce (the form can be obtained from the registry office);
• Passport.
• Marriage certificate.
• A receipt for payment of the state duty in the amounts established by Art. 333.26 of the Tax Code of the Russian Federation: 350 rubles for divorce from a spouse recognized as missing or in prison;
• 650 rubles from each spouse by mutual agreement or by court decision.

What to do if it is not possible to come to the registry office

If the parties have no objections to the divorce, and there are no minor children in the family, the spouses can register the divorce without their presence.

The law allows two ways of such a divorce:

• issuing a notarized power of attorney to your representative and his subsequent appearance at the registry office to represent your interests;
• registration and transfer to the registry office of a notarized consent to divorce.

How can you find out if a divorce has been filed?

Since the divorce in the registry office is carried out by mutual consent of the couple, in this case the possibility of ignorance of the second spouse about the initiative for divorce is excluded.

As for ending a marriage through the court, the rules for divorce after an application by one party will be regulated by the norms of civil procedural legislation. This means that both the plaintiff and the defendant have a certain set of procedural rights and obligations.

Thus, the party to the proceeding must receive a copy of the statement of claim with attachments, and also has the right to be notified by the court of the date and time of the court hearing.

Thus, if one of the spouses is against divorce, he will have the opportunity to present his arguments to the court, as well as provide his thoughts on the merits of the case.

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.

Legislation

In order to file a divorce without the consent of one of the spouses, it is necessary to be guided by the current legal framework regulating this area of ​​legal relations.

Issues regarding divorce are regulated. Issues of a property nature, accordingly, are regulated by norms.

However, a marriage is dissolved not only through the court, but also through the registry office, so the norms should be taken into account. It is this legal act that regulates the procedure for dissolving a marriage out of court, what documents are needed for this, and also stipulates how spouses should act in order to dissolve a marriage.

When going to court, as well as during the trial, one should be guided by which, including regulating the rights and obligations of the parties in court, stipulating in which cases it is possible to carry out a divorce without the participation of the parties, as well as other procedural nuances.

It should be noted that current legislation provides for the possibility of divorce without the participation of the parties in court hearings. Thus, according to paragraph 5 of Article 167 of the Code of Civil Procedure of the Russian Federation, the plaintiff has the right to request a hearing without his participation. The same rights are provided for the defendant.

Therefore, if you absolutely do not want to see your other half and therefore are wondering whether the presence of both spouses during a divorce is necessary, then know that the court can consider the case even if neither party ever appears at the hearing .

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.

Rights of spouses upon divorce

The rights of spouses upon divorce can be divided into two categories: personal non-property and property. Rarely does a divorce proceeding proceed without disagreements arising between spouses. Thus, disputes about children, the division of property jointly acquired during marriage, and others are possible between spouses.

When resolving these issues, it is important to remember that the state provides for the need for strict observance of the rights and interests of children in divorce proceedings.

Find out more about the rights of spouses during divorce.

In a court

Divorce without the participation of both spouses in court is a very common practice and is not anything exceptional.

To obtain a divorce in court without the presence of both spouses, you must:

• Absence of disputes about children, which may require additional evidence or survey of the parties' opinions.
• The plaintiff’s request to consider the claim in his absence, filed simultaneously with the claim or after its acceptance.
• The defendant’s request to consider the case without his presence, indicating his position on the claim.

Important! The parties can also send their representative to the court by issuing an appropriate power of attorney.

The absence of the defendant from the divorce hearing without notifying the court can only delay the process. However, this fact will not be an obstacle to making a court decision, even if the defendant does not declare the possibility of considering the case without his participation.

In order for the court to make a decision on divorce without the participation of the plaintiff, it is necessary to file a petition that the reasons for the applicant’s absence are valid and ask to consider the case without one’s presence.

You can submit such a petition directly in the statement of claim itself, and the court will be required to notify you of the time and place of the hearing. If you change your mind, then nothing prohibits you from arriving in court for the trial on time.

Important! The failure of the plaintiff to appear in court without notice entails the postponement of the consideration of the case, and a repeated failure to appear will leave the application without consideration on the merits, unless the defendant insists on completing the case and making a decision on divorce.

Physical impossibility of presence

In case of physical impossibility to attend the meeting, it is necessary to submit to the court evidence of justification for failure to appear (travel certificate, certificate from the hospital, etc.).

It is advisable to inform the court of the impossibility of attendance in advance. To do this, the application and copies confirming the absence of documents are sent by fax or e-mail, since mail does not always work promptly.

Opting out

Refusal to participate in a divorce case may be expressed in writing. Such a statement is submitted by both the plaintiff and the defendant to the court before the start of the court hearing, and the plaintiff can also be stated in the divorce claim itself.

Failure to appear in court without specifying reasons is also considered as a refusal to participate and entails negative consequences for the evading party (leaving the claim without consideration for the applicant or issuing a default divorce judgment for the defendant).

Documents for divorce without presence

For divorce in court without presence, you must submit the following documents:

• statement of claim;
• copy of the passport;
• marriage certificate;
• receipt of payment of state duty for 600 rubles;
• application for consideration of the case without the participation of the plaintiff.

For a divorce without presence through the civil registry office, you must send an application certified by a notary.

It is better to clarify the nuances of drawing up an application in advance with the civil registry office at the place of divorce; download a sample application from the official website of the territorial civil registry office.

Statement of claim

In order to consider a divorce case in the absence of the defendant, the latter must send a corresponding petition.

If the plaintiff does not plan to appear in court, he can immediately or separately ask the court to resolve the case in his absence.

In any case, the main document that initiates the divorce mechanism will be the statement of claim.

Submission and writing rules

The procedure for filing a claim is regulated in Article 131 of the Code of Civil Procedure of the Russian Federation. Violation of any of the conditions specified there entails leaving the claim without progress or even returning without consideration.

This article establishes general provisions, but not a single normative act contains requirements for a claim specifically for divorce in absence. Divorce in this case is carried out in accordance with the general procedure.

Based on the analysis of the provisions of this article and established practice, the claim must indicate:

• Name and address of the court to which the application is being filed.
• Full name of the plaintiff, defendant, addresses of their official registration and actual residence.
• Circumstances of the dispute: date of marriage; information about the actual termination of the relationship, the reasons for the divorce.
• Information about children or their absence, other disputes, as well as the possibility of reconciliation between spouses.
• Justification for the need to consider the claim in the absence of the applicant.
• Demand for divorce and consideration of the case without the participation of the plaintiff.
• Date, list of attached documents, personal signature.

Important! If the absence of the defendant is assumed, then the claim only needs to indicate that his location or residence is unknown. Such a claim will no longer contain any other features.

The claim can be submitted to the court either in person or sent by registered mail. Lawyers advise using the second method, as it reduces the risk of possible obstacles from court officials.

If there are any deficiencies, the judge will be required to issue a formal ruling requiring their elimination.

The statement of claim is subject to a state duty of 600 rubles. You can learn more about the procedure for calculating and paying duties from this article.

Sample claim

A sample claim for divorce in the absence of a spouse in court is just one example of drawing up a document reflecting a request to consider the case in the absence of the applicant.

A petition for divorce in court without a plaintiff can be filed after the filing of the claim, or it can be drawn up on a separate page, detailing the reasons for the absence.

The law, however, does not establish mandatory reasons - the plaintiff has the right to request a hearing of the case without his participation and without indicating any significant reasons.

Notarized consent

Notarized consent is required to be submitted to the registry office if the spouse does not have the physical ability or desire to be personally present during this procedure.

Remember that a notary has no right to give legal advice on the contents of the document being certified; he only certifies the identity of the person indicated in the documents and signing it.

For notarization of a document, a state fee and technical expenses are paid. The final cost of completing this application with a notary varies depending on the region of residence.

When can the court refuse a divorce without presence?

The only option when the court can refuse a claim for divorce without presence is if the plaintiff fails to appear at the court hearing without good reason and does not submit a petition to the court for consideration in his absence.

In this case, the defendant should not insist on considering the claim on its merits.

Important! The defendant's disagreement, failure to appear, or active opposition to the termination of the marriage is not a reason to refuse a divorce without presence.

Methods for citizens to dissolve a marriage using a unilateral simplified procedure remotely

If you do not have the opportunity to come with your spouse to the registry office and submit an application, you can do the following:

1. Submit an application for dissolution of a legal marriage unilaterally in absentia using Form No. 10, approved by Order of the Ministry of Justice No. 201. It is filled out by the sole applicant in his own hand; notarization is required. The exception is when a document is submitted through Gosuslugi - using the portal significantly simplifies the procedure, and there is no need to go to a notary.
2. Wait for the certificate to be issued. If there are no grounds for a simplified procedure, or the unilateral divorce was not carried out through the court, it will take 1 month.
3. Get certificates. You can send your legal representative to the registry office so that he can pick up all the documents for you. The joint appearance of both spouses is not required.

There are alternative options for sending documents for unilateral divorce remotely:

• Through Russian Post. Sending is carried out by registered mail with a list of attachments. The date of acceptance of the documentation is the day of receipt of the relevant notification. Thus, you can go to court, it is better to submit an application for divorce unilaterally to the registry office in electronic form, through the “State Services” portal;
• Through a legal representative. This is the best option: a human rights defender can act on behalf of a client both in the registry office and in court, depending on the situation. Unilateral divorce with his participation is the fastest, because experienced lawyers know what needs to be done to quickly obtain a certificate for the client;

Divorce terms without presence

The period for divorce without the presence of the parties through the registry office is similar to a standard divorce and is one month from the date of filing the documents.

The timing of the trial depends on the following circumstances:

• if one of the parties is absent from the hearing for good reasons, the court may repeatedly postpone the consideration of the case;
• If the court has declared the appearance of one or both parties mandatory, it may extend the period for consideration of the case.

According to the norms of the Code of Civil Procedure of the Russian Federation, the period for considering a divorce case is set at 1 month, but the court has the right to give the spouses time for reconciliation of up to 3 months.

In addition, the court decision will come into force one month from the date of its issuance and only on the condition that it is not appealed. All the nuances of compliance with procedural deadlines can be clarified during a free consultation with a lawyer on our portal.

How much will a divorce cost?

Before going to court, it is never a bad idea to ask how to file a claim and how much state fees you need to pay.

Payment of the fee is a prerequisite for acceptance and consideration of the claim. Failure to comply with this requirement will result in the court refusing to accept the claim.

Currently, the state fee for filing a claim for divorce is 650 rubles.

Once you receive the decision, you will still have to go to the registry office, where they will issue you a divorce certificate. This will cost you another 650 rubles.

Absentee ruling

If the defendant fails to appear in court, having been notified of the date of the court hearing and has not asked for consideration in absence or has not indicated valid reasons for his failure to appear, the court may make a decision in absentia.

The Code of Civil Procedure of the Russian Federation allows for the possibility of canceling a court decision in absentia at the request of the defendant.

If it is filed with the court within 7 days from the receipt of a copy of the decision and if it indicates the grounds that could influence the court’s adoption of this decision.

The petition to cancel the default judgment is considered at the court hearing and if it is satisfied, the hearing of the case begins again.

Grounds for divorce in the claim

When going to court, you must strictly follow all the requirements of civil procedural law. Failure to complete the claim correctly will result in a refusal to initiate proceedings, in which case the document will be returned to you to correct the identified deficiencies.

Thus, it is extremely important to take a responsible approach to drawing up a claim, to consistently and in detail set out in it all the circumstances that led to the decision to go to court: if there is a child, indicate information about him in the claim, set out in the application those circumstances that prevent further cohabitation, and so on Further.

Find out in more detail what reasons for divorce to indicate in the statement of claim.

Jurisdiction and jurisdiction

According to jurisdiction, the divorce procedure is assigned to the registry office and the courts.

The registry office carries out divorce according to a simplified procedure when there is mutual consent of the parties, there are no minor children and disputes about property, as well as in cases where there are circumstances established by the court for the termination of the marriage.

According to the jurisdiction, such a procedure is imputed to the magistrate or district court.

The World Court considers that category of divorce cases in which the parties have neither a mutual desire to divorce, nor minor children, nor joint property.

In general, cases are considered by district judges, who, in addition to the divorce request itself, must determine either the order of residence of the minor and his financial support, and/or also resolve the issue of dividing joint rights to property that the couple acquired during their marriage.

Each of the justice bodies makes a decision, which is subject to further execution by the registry office.

A sample claim on how to file for unilateral divorce can be found in the court premises and on Internet resources.

Regulatory framework

Arbitrage practice

The case was considered by the Petrovsky District Court of the Tambov Region in June 2021.

The spouse filed a claim document for consideration by the judge, in which she demanded to divide the common property and dissolve the family relationship. In support of her claims, the plaintiff stated that:

• The marriage actually broke up.
• She does not live in the same territory with her husband and does not run a joint household.
• The couple had a daughter who was 20 years old at the time of filing the application.
• The husband in every possible way avoids jointly drawing up an application to submit to the state registry office in order to begin the divorce process.
• Common assets acquired during the marriage include 2 plots of land, a house and a car trailer.

The wife's demands were as follows:

1. End your marital relationship with your husband.
2. Divide 2 plots of land and a house in half.
3. Give the trailer to your ex-husband, and in return oblige him to hand over a compensation payment equal to 50% of the cost of the trailer.
4. Do not provide the 3 month period established by law for reconciliation.

The defendant, in turn, at the court hearing spoke in favor of dissolving the family union, dividing common material assets in shares proposed by the plaintiff, and refusing to provide a period for reconciliation.

Having examined and assessed the circumstances of the case, the judge came to the following conclusions:

1. The defendant acknowledges the plaintiff’s claims and understands the consequences of his decision.
2. The court does not object to the defendant’s position because it does not affect the interests and rights of the participants in the process, as well as third parties.
3. In this regard, the spouse’s demands must be satisfied in full.