Entry into legal force of a judge's decision on divorce in absentia?

Is it possible to get a divorce in absentia, without personal presence?

Termination of marriage in absentia is usually understood as consideration of an application for dissolution of a marriage without the presence of the husband, wife or both spouses at the same time. According to the general rule, divorce in the territorial registry office or in court can only be carried out in the personal presence of the parties. This is done so that each partner has the opportunity to express a personal opinion or declare circumstances prohibiting the termination of the union.

On the other hand, the Russian Constitution guarantees every person the protection of personal rights, including the impossibility of being forced to live in marriage. In order to protect constitutional interests, it is stated that in exceptional situations, divorce is possible without the presence of the parties.

Table No. 1 “Conditions for termination of marriage in absentia”

Take the survey and a lawyer will share a free divorce action plan in your case

You might find it useful:

Where to file for divorce

Samples of divorce documents

Divorce lawyer consultation

Grounds for canceling a default judgment

• the defendant’s failure to appear at the court hearing was caused by valid reasons, which he was unable to inform the court in a timely manner
• the defendant refers to circumstances and presents evidence that may influence the content of the court's decision. It should be noted that when deciding whether to cancel a default judgment, the defendant is required to prove the circumstances to which he refers. If he does not do this, then the default judgment may not be overturned. The most common grounds for canceling a default judgment are:
• the defendant changed his place of residence and therefore he did not receive court notices
• change of phone number and therefore inability to receive an SMS notification from the court
• being away from home due to a business trip, military service, imprisonment, long-term treatment, etc.
• intentional actions of the plaintiff who hid the true contact information of the defendant

This list is not exhaustive. The court evaluates any circumstances that could prevent the defendant from taking part in the court hearing. The court also takes into account what information and documents the defendant provides and how they may influence the court’s conclusions. For example, the plaintiff collects a debt by receipt. The court satisfies his demands and makes a decision in absentia. When filing an application to cancel a default judgment, the defendant provides a response receipt according to which the plaintiff received the debt. Thus, the court sees that it is necessary to cancel the default judgment and find out from the parties whether the debt has been returned. Circumstances that may affect the outcome of the case can be very diverse and there is no specific list of them.

In what cases is a divorce in absentia acceptable?

Consideration of divorce disputes by civil registry authorities occurs without the presence of one of the participants under the following circumstances:

• mutual consent of the parties to divorce;
• absence of disputes regarding the division of joint property;
• there are no children or they have reached the age of majority;
• submission by the husband/wife of a notarized application for divorce without personal presence.

Without filing a notarial application and without notifying the defendant about the termination of the marriage, it is possible only in case of imprisonment for a criminal offense, recognition as missing or incompetent.

In the future, such a divorce may be refuted by the spouse who has restored legal capacity, or whose place of residence has been revealed.

In the absence of mutual consent to divorce, in the event of additional disputes about children or common property, the divorce is registered in court. You need to know the following about a divorce in absentia:

• You can delegate the authority to represent you in court to a lawyer (documented);
• You can apply to postpone the trial for compelling reasons;
• If a person is repeatedly absent without explaining the reasons, the decision is made in absentia.

Is it possible and how to get a divorce if the child is under 1 year old?

Is it possible to get a divorce without a marriage certificate?

Problems when appealing

In practice, lawyer Vyacheslav Astafyev notes several of the most common mistakes made by defendants when appealing decisions in absentia.

• Missing appeal deadlines. In this case, a person loses the right to cancel a decision that does not satisfy him.
• Refusal to attempt to restore the appeal period if it is missed for a valid reason. The law provides for the opportunity to restore the missed deadline and protect your rights.
• Appeal against default decisions independently without involving a civil lawyer. People use application templates and articles on the Internet, but in practice they use them incorrectly and therefore receive refusals from the courts.
• Comprehensive evidence is not provided to the court to overturn a default judgment. People, as a rule, rely on their own strength, but without knowing judicial practice, they make mistakes and lose the dispute.
• They ignore the default judgment, forgetting that once it enters into force it becomes binding on the defendant.

Basically, the listed errors arise due to a person’s reluctance to pay for a lawyer’s services and the erroneous idea that it is easy to cancel and appeal a default decision. Defendants should keep in mind that any judicial procedure requires special legal knowledge, which is verified by experience in judicial practice. Otherwise, without qualified legal assistance, the defendant risks losing the dispute.

Attention! The information provided does not reflect the entire practice of considering cases of this category and does not guarantee a positive outcome of the case. Each situation is unique and requires an individual approach and personal interaction between the client and the lawyer. This material is the intellectual property of the author. Any use of the material is possible only with reference to the source of information.

Methods for filing for divorce without the presence of a second spouse

The interested spouse has the opportunity to send a petition to terminate the marriage to the registry office in the following ways:

• personally to the authority;
• on the State Services website;
• postal service.

Filing claims in court without the presence of the defendant is available in the following ways:

• Russian Post (function “inventory of attachment”);
• personally;
• through a representative (by notarized power of attorney).

A spouse who does not want to be present during the divorce procedure must contact a notary and prepare:

• written consent to dissolve the marriage;
• a trust letter for the second spouse, allowing you to file an application unilaterally.

The spouse who has given consent for an absentee divorce pays the state fee in the general manner, but the registry office is not obliged to send him a divorce certificate.

Are you tired of reading? We’ll tell you over the phone and answer your questions.

Will it be possible to obtain a divorce in absentia through the registry office?

It is not always possible to file a divorce at the registry office. This is permitted when both spouses have reached an amicable agreement and they do not have children together. In addition, both husband and wife must be present when the divorce proceedings are registered, and they must submit one joint application in advance. But here there are some nuances that allow you to file an absentee divorce.

at the registry office.

This is possible if one of the spouses wrote an application for divorce (in accordance with Form No. 8) and had it certified by a notary. After which he transfers this statement to the other spouse. After receiving the document, the latter must bring it to the registry office along with his application. To do this, you need the mutual consent of the spouses.

The exception is when the spouse:

• missing or declared dead,
• incapacitated
• is serving a prison sentence exceeding 3 years, which he received on the basis of criminal law.

If your case fits one of these circumstances, you need to submit the appropriate document that proves these facts. For example, a court decision that has entered into force, a sentence. The application in this case is submitted in accordance with the established form No. 9.

Note! In the situations described above, divorce in absentia

possible without any problems.
But if the circumstances change (for example, a person was declared missing and then found) that served as the reason for the divorce, the decision to dissolve the marriage can be canceled .
There are no longer any ways to file a divorce in the registry office without the participation of the second spouse. We'll have to go through the courts.

Absentee divorce in court

In most cases, it is in the registry office that the presence of both spouses is required for a divorce, but if the procedure takes place in court, such circumstances occur much more often. One or even two spouses may be exempt from participation in the trial. But to take advantage of this opportunity, you also need to comply with some rules.

First, you need to remember that you should not immediately run to court to get a divorce. You need to understand which institution should handle your case. So, for example, if complete agreement is reached between the spouses, and they have no children, and there are no property disputes, there is no need to go to court. Therefore, when the issue of divorce can be resolved in the registry office, there is no point in going to court for a decision.

Divorce in absentia without the applicant spouse

Breaking off a family relationship is always very difficult. The matter is complicated by the need to collect a package of documents in order to defend the decision. And then there is the excitement associated with the upcoming meeting in the courtroom. Divorcing people are also worried about the future court decision.

This means that even the applicant has the right to delegate the conduct of the case in court to another person who will file an application, be present in the courtroom and even appeal the court decision, if necessary.

Moreover, there are cases when the consideration of a case occurred much faster and more efficiently if one of the spouses entrusted its management to another person. Emotions are not always on the side of the spouses, and in most cases they also harm them.

To transfer his rights, the plaintiff spouse must issue a power of attorney for divorce . It will be better if you can inform the judge involved in the case in advance. It is quite possible that the other spouse will not appear in the courtroom, but will send a proxy in his place.

Divorce in absentia without a respondent spouse

Very often, an absentee divorce is filed without the presence of the respondent spouse. The reasons for refusal to appear in the courtroom may be different:

• disease,
• ignorance about the beginning of the procedure,
• the spouse is located in another city at a great distance from the plaintiff.

Regardless of the reasons, the divorce will be filed in any case. It is for those who like to delay time that the possibility of divorce in absentia is provided .

If notices indicating the time and place of the procedure are regularly sent to the defendant, the court has the right to dissolve the marriage without the presence of the defendant spouse . According to existing legislation, only 3 failures to appear are enough.

But there is an exception here too. Sometimes the defendant does not have enough time to notify the court that he has a valid reason for not appearing in the courtroom. Therefore, if the judge made a default decision, he can ask for its cancellation. The defendant is given only a week from the date of receipt of the court decision to do this. When the court sides with the defendant and overturns the previous decision, the case is tried again . But in this case, the respondent spouse must be present.

Example

A girl living in Moscow came to court with a request to dissolve her marriage and collect alimony, due to the fact that she and the defendant have two minor children. It turned out that the defendant did not care at all what was happening at the moment in his family life, so he did not consider it necessary to come to the courtroom. The court found that the spouse actually resides at the address noted in the claim. After no response to the summons, the court decided to divorce and collect monthly payments for two children.

Procedure for filing an application for divorce in absentia

Divorce proceedings are carried out:

• civil registration authorities;
• district courts;
• justices of the peace.

Universal algorithm for submitting an appeal:

• the emergence of grounds for divorce;
• agreement with the other party;
• collection of required documents;
• preparing an application;
• submission of necessary documents;
• payment of state duty.

If it was not possible to obtain the written consent of the defendant, it is necessary to submit documents confirming the sending of notice of the upcoming divorce process. A receipt of registered mail will be sufficient.

How to file for divorce unilaterally through the registry office?

It is much easier and faster to make an official separation of marriage obligations in the registry office. It is possible to submit applications through State Services - there you will find a detailed algorithm and samples of all forms, and also receive a 30% discount on the payment of the fee.

Each of the divorcing couple writes a separate application and pays a fee for himself (650 rubles by transfer or 455 rubles by State Services).

The form and receipts are accompanied by original passports and a marriage certificate (original) (the latter will be confiscated at the registry office).

Both spouses agree to divorce and have no children together

This route (according to a simplified procedure at the registry office) can be used by a couple who do not have children under 18 years of age, and both divorcing people have decided to separate. Applications are submitted directly to the registry office using the sample Form 8 (they write that the desire to break away from family ties is a common peaceful decision, and there are no minor children in the family).

See also:

How does divorce by mutual consent occur without children and with children?

Under these conditions, even if one of the two cannot come to the divorce, it is registered at the registry office.

Anyone who cannot be present writes an application to the State Services (or sends certified documents by mail) and issues a power of attorney for a spouse or other person. This procedure is a very good option from a psychological point of view if those divorcing due to conflicts cannot interact calmly or it is morally difficult for them to see each other.

After submitting the applications, 30 days later the registry office will file a unilateral divorce without the presence of one of the spouses, by his power of attorney.

Divorce initiated by one of the spouses when the consent of the other is impossible or not required

A divorce can be filed unilaterally through the registry office, if the insurance company allows you not to ask your partner’s opinion. Then the initiator of divorce writes one application and pays the fee only for himself. But he will be required to provide documents confirming that it is not necessary to take into account the opinion of the other half.

You can submit an application without your spouse’s consent if:

• he was declared missing (disappeared);
• he received a sentence of serving in a colony/prison for 3 years or more;
• he is incompetent.

Time limits for a court decision to enter into legal force

Art. 321 of the Civil Procedure Code establishes that after the final verdict is rendered by the judge, the parties have a month to appeal it. If after this period the appeal has not been filed, the decision enters into legal force. From this date the marriage is considered dissolved.

Within 3 days from the date of the decision, the decision is transferred to the registry office for the preparation of a divorce certificate. At this stage, each spouse who wishes to obtain a certificate of divorce must pay 350 rubles of state duty for its production.

Time limits and procedure for appealing a default decision

• the defendant has the right to appeal a decision in absentia within seven days from the date of delivery of a copy of this decision to him
• A decision in absentia can be appealed by the parties on appeal within a month after the expiration of the deadline for the defendant to file an application to cancel this court decision
• if such an application to cancel a decision in absentia was filed, but it was refused, then the decision in absentia can be appealed within a month from the date of the court ruling to refuse the application

Cancellation of a court decision in absentia divorce

The legislation provides for 2 ways to cancel a court decision:

• before entering into legal force;
• after entering into legal force.

During the appeal period

Within 3 days from the date of divorce, each of the participants is sent a copy of the court verdict. Spouses can receive their copy of the document in the judge's office or remotely by mail. Then, within 1 week, an application is prepared to cancel the decision in absentia if the participant does not agree with the verdict.

Question from judicial practice: I received a notification that the court has issued a divorce decree. I did not receive any notices that my wife decided to end the marriage, or any summons to appear in court. Is it possible to appeal a divorce?

Lawyer's answer: The spouse, having decided to end the marriage, is obliged to send her husband a notice of the upcoming divorce with a copy of the statement of claim. If such notice was not received, then procedural requirements were violated and the spouse has the right to appeal the decision.

The second condition is the presence of compelling reasons for absence during the meeting. A court clerk is authorized to issue subpoenas to all participants. Ignoring 3 official calls leads to an absentee decision by the court. If a citizen was absent from his place of residence for good reasons (business trip outside the garrison, illness with inpatient treatment) and the summons was not received, then the judge is obliged to cancel the previously made decision and set a new date for resolving the dispute, when all participants can be present.

Upon expiration of the period for appeal

According to the general rule, it will no longer be possible to cancel a decision made after a month. But there are a number of cases when the defendant has the right to annul a court decision on appeal. These include:

• lack of information about the divorce process;
• failure to receive an accepted verdict;
• violation of the deadlines for sending a court decision before it enters into legal force.

The interested participant must collect a complete package of evidence to restore the appeal period, prepare a statement of claim to the court where the main decision was made. If the judge grants the request and restores the deadline for filing an appeal, then a second appeal will be made, but to a higher authority.

Article 240 of the Code of Civil Procedure of the Russian Federation. Consideration of an application to cancel a court decision in absentia (current version)

The above and other violations of the law listed in the decision of the qualification board of judges led to the fact that the absentee decision on divorce dated May 16, 2003 was canceled after the death of the plaintiff Z., who died on April 6, 2007. After the cancellation of the absentee decision, the defendant, Referring to this circumstance, she filed an application to terminate the proceedings, which was granted, which allowed her to claim the property acquired by Z. after the divorce, and led to numerous complaints from other heirs, citing the fact that P. never shared with Z. . did not live, knew about the court decision on divorce in 2003 and about his death when filing an application to cancel the default judgment. At the same time, these persons indicate that they do not have the right to appeal court decisions in the case of Z.’s claim for divorce, issued after his death.

As a result of the consideration of the case, the Supreme Court of the Russian Federation came to the conclusion that the magistrate committed significant violations of the norms of civil procedural law, which diminished the authority of the judiciary and raised doubts about its objectivity, fairness and impartiality (decision of the Supreme Court of the Russian Federation of December 16, 2008 No. in case No. GKPI08-1969).

4. The holding of a court hearing on the issue of considering an application to cancel a default judgment is carried out according to the general rules of judicial proceedings, taking into account the specifics of the issue being resolved. The subject of judicial activity is limited in this court session exclusively to the range of issues outlined in Art. 242 Code of Civil Procedure of the Russian Federation. The court must establish whether there are provisions provided for in Art. 242 of the Code of Civil Procedure of the Russian Federation there are grounds for canceling a default judgment or they are absent.

The court hearing is opened by the presiding judge, who informs what application is being considered by the court: he names the defendant who filed the application, as well as the contents of the default judgment.

After this, the appearance of the persons participating in the case is established at the court hearing and the identity of the participants in the process who appeared and the powers of the representatives are verified.

Then the presiding judge announces the composition of the court, provides information about other participants in the process: the prosecutor, the secretary of the court session, representatives of the parties and third parties, an expert, specialist, translator.

The presiding officer also explains to the persons participating in the case the right to submit self-challenges and challenges, the grounds for which are established by Art. 16, 17 Code of Civil Procedure of the Russian Federation. Received applications for self-recusal and recusal are considered by the court in the deliberation room and are resolved in a ruling announced by the court at the court hearing.

The presiding officer explains to the persons participating in the case the procedural rights granted to them by law and the procedural duties assigned to them.

5. The law does not regulate the question of whether the procedural rights of the defendant who filed an application to cancel the default judgment include the right to refuse the submitted application, as well as the procedural consequences of such refusal. However, given the discretionary nature of civil proceedings, it seems illogical to prohibit the defendant from refusing an application, the filing of which depends solely on the will of that person.

The absence of a legal norm defining the consequences of such a refusal cannot serve as an obstacle to the implementation of this procedural action, since Part 4 of Art. 1 of the Code of Civil Procedure of the Russian Federation provides for the use of an analogy of law in the absence of a rule of procedural law regulating relations that arose during civil proceedings.

Yes, Art. 326 of the Code of Civil Procedure of the Russian Federation allows for the refusal of an appeal or presentation before the court issues an appeal ruling and provides that the appellate court issues a ruling on accepting the refusal of an appeal or presentation, which terminates the proceedings on the corresponding appeal or presentation.

Considering that the application to cancel the default judgment has a similar legal nature to the appeal and is aimed at canceling the decision, if the defendant refuses the application to cancel the default judgment, it is possible to apply by analogy the provisions of Art. 326 Code of Civil Procedure of the Russian Federation.

6. In the preparatory part of the court session, the court also resolves the issue of the consequences of the failure of any of the persons participating in the case to appear at the court session.

According to the general rules for conducting a court hearing, the failure to appear of persons participating in the case and their representatives entails the legal consequences specified in Art. 167 Code of Civil Procedure of the Russian Federation.

For the consideration of an application to cancel a default judgment, the commented article establishes special consequences for the non-appearance of persons participating in the case - the failure of these persons to appear does not prevent the consideration of the application.

However, this does not preclude the court from establishing the reasons for the participants’ failure to appear in court and information about their proper notification of the court hearing. If it is established that the failure of the persons participating in the case to appear is caused by improper notification of them about the time and place of the court hearing, consideration of the application must be postponed, for which a new court hearing is scheduled. The court has the right to postpone the trial on an application to cancel a default judgment and on other grounds if it finds this necessary for the correct consideration of the application.

7. In judicial practice, there are conflicting approaches to assessing the failure to appear at the court hearing of the defendant who initiated the procedure for reviewing the decision in absentia. There is an opinion that if the defendant who filed an application to cancel the default judgment repeatedly fails to appear at the court hearing, the legal consequences established by paragraph. 7th and 8th Art. 222 of the Code of Civil Procedure of the Russian Federation, that is, the application may be left without consideration.

Example 1: by absentee decision of the Berezovsky District Court of the Krasnoyarsk Territory dated November 19, 2015, the claims of Sovcombank PJSC were satisfied, and the debt under the loan agreement was recovered from B.

B. applied to the court to cancel the default judgment, citing the fact that she was not properly notified of the time and place of the consideration of the case.

By the ruling of the judge of the Berezovsky District Court of the Krasnoyarsk Territory dated March 14, 2021, B.’s application to cancel the default judgment was left without consideration, based on the provisions of paragraph. 8 tbsp. 222 of the Code of Civil Procedure of the Russian Federation, according to which the court leaves the application without consideration if the plaintiff, who did not ask for the case to be heard in his absence, does not appear in court for a second summons, and the defendant does not demand consideration of the case on the merits.

The appellate court did not agree with this conclusion of the first instance court and canceled the ruling to leave the application without consideration. At the same time, the judicial panel was guided by the fact that the grounds for leaving the application without consideration are indicated in Art. 222 Code of Civil Procedure of the Russian Federation; Leaving an application to cancel a default judgment without consideration after it has been accepted for processing is not provided for by current legislation. In case of failure of any of the persons participating in the case to appear at the court hearing, the court was obliged to consider on the merits B.’s application to cancel the default judgment and accept one of the provisions provided for in Art. 241 of the Code of Civil Procedure of the Russian Federation decisions: on the refusal to satisfy the application or on the cancellation of a court decision in absentia and on the resumption of consideration of the case on the merits by the same or a different composition of judges.

Under such circumstances, the court of first instance had no legal grounds for leaving the application to cancel the default judgment without consideration, and therefore the ruling was declared illegal and canceled (see Appeal ruling of the Krasnoyarsk Regional Court dated May 25, 2021 in case No. 33-6821 /2016).

Example 2: The Vidnovsky City Court of the Moscow Region issued a default judgment in the case of the claim of Sberbank of Russia OJSC against K. for the collection of debt under a loan agreement and termination of the loan agreement.

K. applied to the court to cancel the said court decision in absentia.

By the ruling of the Vidnovsky City Court, K.’s application was left without consideration due to failure to appear at court hearings.

The appeal ruling of the Moscow Regional Court overturned the ruling of the district court. At the same time, the appellate court took into account that the law does not provide for leaving an application to cancel a default judgment without consideration after it has been accepted for proceedings. In the event of the failure of any of the persons participating in the case to appear at the court hearing, the court was obliged to consider on the merits K.’s application to cancel the default judgment (see the Appeal ruling of the Moscow Regional Court in case No. 33-10359/2015).

In the examples given, the position of the appellate courts seems correct. Application by analogy of the norms of Art. 222 of the Code of Civil Procedure of the Russian Federation, when considering an application to cancel a decision in absentia, it is unacceptable, since the law establishes special consequences for the failure of persons participating in the case to appear at a court hearing - consideration of the application in their absence. If the application is left without consideration, the question of the beginning of the calculation of the period for appealing the court decision and, as a consequence, determining the moment the court’s decision in absentia enters into legal force remains uncertain.

8. Before considering the application on its merits, the court resolves the petitions of the persons participating in the case.

After resolving the petitions of the persons participating in the case, the court proceeds to consider the merits of the application to cancel the default judgment. This consideration begins with the report of the presiding officer, in which he sets out the content of the adopted decision in absentia and the main arguments of the defendant, set out in the application to cancel this decision.

Then the opinion of the persons participating in the case regarding the application submitted by the defendant is clarified and their explanations are heard.

When considering an application to cancel a default judgment, the court examines the evidence necessary for this. The court does not have to examine all the evidence available in the case. Taking into account the specifics of the issue being considered at the court hearing, the court should not enter into the essence of the resolution of the case and assess the legality and validity of the absentee decision. The volume of evidence examined should be determined based on the range of circumstances to be established:

— whether the defendant had a valid reason for absence from the court hearing;

— whether the defendant had the opportunity to communicate the reason for his failure to appear in court;

— whether there is information about circumstances that may affect the content of the court decision, confirmed by evidence presented by the defendant.

For example, when resolving a request to question witnesses, the court may grant it if the witnesses know information about the valid reason for the defendant’s absence at the court hearing in which a decision was made in absentia. It is inappropriate to interrogate witnesses on the merits of the case, since the court does not have the right at this stage of the trial to establish new circumstances and examine evidence confirming or refuting the facts included in the subject of proof in the case.

To resolve the application, a motivated, well-founded statement by the defendant about the range of circumstances that were not examined by the court when considering the case, as well as the availability of evidence confirming these circumstances, is sufficient. For example, the defendant can name information about witnesses who can confirm the facts necessary to consider the case on the merits.

After explanations from the persons involved in the case and examination of the necessary evidence, the court hears the debate of the participants in the process, after which it retires to the deliberation room to make a determination under Art. 241 Code of Civil Procedure of the Russian Federation.

Lawyer's answers to frequently asked questions

I received a divorce decree in absentia, which comes into force on the 17th, can I purchase real estate before the 17th and will my husband be able to claim it?

The Civil Code states that property acquired during marriage will be considered joint and subject to division during divorce. Marriage relations are considered terminated:

• after making an entry in the civil registration book (divorce through the registry office);
• after the court decision enters into legal force (in the current example, on the 17th).

The spouse will not be able to purchase real estate, since the consent of the official spouse is required to participate in the transaction. You will be able to complete the purchase only after the 17th.

If a car was purchased after a court decision in absentia and it entered into legal force, but the defendant subsequently cancels the court decision, will he have rights to the car?

The car will remain the individual property of the spouse who made the purchase, since the partners were divorced at the time of purchase.

Procedure for proceedings in absentia

The trial in absentia is conducted as a regular trial with the examination of all evidence in the case, but without the participation of the defendant. Based on the results of the consideration of the case, a decision is made, which comes into force within a month from the date of its adoption. Since absentee proceedings are a kind of simplified procedure for considering a case and the defendant does not participate in the consideration of the case, it is considered that his rights are limited and therefore the law provides for additional guarantees of his rights when canceling and appealing a decision in absentia.