Divorce through the registry office in the presence of minor children

According to Russian legislation, the registry office is authorized not only to enter into marriages, but also to dissolve marital relations in some of the simplest cases. One of the grounds allowed by law for starting the divorce procedure through the registry office arises when the following 2 facts are simultaneously present:

1. Absence of at least one common child under 18 years of age. What does the phrase “common child” mean? This phrase refers to a minor for whom both persons who are in a legally registered and, accordingly, official marital relationship act as parents. Thus, if a baby is related by blood to one spouse or was adopted by only one spouse, then he cannot be considered common.
2. Husband and wife agree to end the marriage.

However, the state civil registry office can begin divorce proceedings not only upon the application of both marriage partners, but also in exceptional cases upon a unilateral application, even if there are children under 18 years of age. Such cases include:

• Incapacity of the marital partner. Please note that it must be confirmed by the court, and this confirmation must be issued in the form of a court decision.
• The unknown absence of another marriage partner. It is also confirmed and formalized in the form of a court decision.
• Criminal punishment for the marriage partner, which is a term of imprisonment of at least 3 years, which he or she must spend in prison.

Divorce procedure through the registry office

Mutual agreement

First of all, it is necessary to determine the state civil registry office, which has the right to register the termination of marriage. Family law distinguishes 2 types of civil registry offices that have the right to divorce a wife and husband:

1. The one who officiated the wedding.
2. Those that are located in the place of registration of one or both marriage partners. For example, if the wife is registered in Kazan, and the husband is registered in Nizhny Novgorod, then the spouses can divorce both in Kazan and Nizhny Novgorod at their choice.

Having decided on the registry office, the next step is to prepare the documents required for the divorce procedure:

• Passports of each spouse.
• Certificate of entry into marital relations.
• Joint statement. The sample can be downloaded from here.
• A document proving payment of the required amount for state duty. These could be bank receipts; printed checks generated as a result of paying the state fee with electronic money or via Internet banking.

Next, you should choose the most convenient and least expensive way to submit the collected papers for consideration. Currently, three such methods are possible. The features of each of them are described in detail in the table.

The registry office grants a divorce only after 1 month has passed from the date of delivery of the divorce documents, and only in the presence of at least one marriage partner. The absence of both spouses means that they are not interested in divorce, and, therefore, the registry office has the right to terminate the procedure for ending the marriage.

The divorce is formalized by making an appropriate note in the register of vital records in the presence of the marriage partners and issuing them divorce certificates.

Unilateral statement

First of all, it is necessary to determine the state civil registry office, which has the right to register the termination of marriage. Family law distinguishes 2 types of civil registry offices that have the right to divorce a wife and husband:

1. The one who officiated the wedding.
2. Those that are located in the place of registration of one or both marriage partners.

Having decided on the registry office, the next step is to prepare the documents required for the divorce procedure:

• Marriage certificate.
• Applicant's passport.
• Grounds for termination of marital relations. This role is played by the original of the relevant court decision, recording the unknown absence of the second spouse or his incapacity, or the original of the sentence of criminal conviction.
• Statement. The sample can be downloaded from here.
• A document proving payment of the required amount for state duty. These could be bank receipts; printed checks generated as a result of paying the state fee with electronic money or via Internet banking.

The law provides the only way to initiate a divorce in the case of a unilateral expression of the will of the spouse. Only personal transfer of documents is allowed. Thus, it is impossible to start a divorce from home through the State Services website or using the MFC in this case.

After accepting the necessary papers, the state registry office will set a time for the dissolution of the marriage relationship. As a rule, this time cannot occur earlier than 1 month from the date of transfer of the required documents. In addition, the registry office does not have the right to conduct a divorce procedure and enter information about a divorced marriage into the register book without the personal presence of the applicant during this action. Upon completion, the ex-spouse is issued a divorce certificate against signature.

How to divorce a foreigner?

If a foreigner and a Russian citizen are in a legal marital relationship, then the procedure that they will have to go through during the divorce depends on the country in which they want to get a divorce. Possible solutions to this problem are listed in the table.

In what cases can you not file for divorce?

Stages of the divorce process

Determination of territoriality and jurisdiction

According to the law, the claim must be filed at the place of residence of the defendant, but exceptions are possible on the basis of the plaintiff having a minor child, in which case the claim can be filed at his place of residence. Divorce cases are most often decided in the Magistrates' Court or the Court of General Instance.

Filing a claim

At this stage, it is best to contact an experienced lawyer who will help you correctly draw up a statement of claim and take into account the pitfalls of divorce. But, if you decide to file a claim yourself, then remember that it must include the following information: details of the court and the parties, as well as the grounds for divorce.

Payment of state duty

You will have to pay eight hundred and fifty rubles for the claim.

Providing a package of documents

• copy of the claim;
• a copy of the marriage document;
• copies of documents confirming the birth of children;
• a check confirming payment of the state duty;
• if you are represented by a proxy - a copy of the notarized power of attorney.

Next, the claim is submitted to the court (in person or by mail).

Afterwards there is a court hearing.

Making a decision. The marriage will be considered dissolved from the moment the decision comes into force.

What to do if your spouse doesn’t show up

The absence of one of the marriage partners at the final stage of the divorce, i.e. on the registration of divorce certificates by the state registry office and registration of the fact of divorce in the deed book, if a month before he signed an application for termination of the marriage, this does not entail any legal consequences for the second spouse. The divorce will be registered in any case.

However, a marriage partner who refuses to prepare a joint application for the registry office and come there with personal documents in order to initiate divorce proceedings prevents the second spouse from exercising his family rights. The Family Code identifies such behavior as evasion of divorce and allows the spouse, whose rights are violated by the evading partner, to dissolve the family relationship through the court.

According to Russian law, a divorce from a evader spouse can be dealt with by 2 courts.

Claim documents are sent to the court, which is located in the city of residence of the defendant, in most cases in accordance with the rules of jurisdiction. An exception to this rule is that the plaintiff, if he has documented evidence of a serious illness (cancer, tuberculosis, heart failure), can submit documents to the court of his city or district.

In the application sent to the court, you must write:

1. Court details (name, index, location address).
2. Details of the parties (full name, postcode and registration address, contact information).
3. Information about the marriage (where and when it was concluded, as well as with whom).
4. Brief information about children, if any.
5. The reason that prompted you to seek legal assistance. Here you need to indicate that the spouse is avoiding divorce, for example, he does not want to write a joint statement to the state registry office.
6. Other requirements related to the main requirement for divorce, for example, for the division of an apartment, cottage, furniture, car or household appliances. If desired, the wife and husband can draw up a property agreement or prenuptial agreement before the divorce.
7. Legislative acts and articles that serve as justification for claims.
8. A complete list of requirements, as well as a list of supporting documents and evidence.
9. Date of writing, painting.

If at the meeting the defendant confirms that he was only avoiding the divorce, but not against him, then the court has the right to divorce the marriage partners in one meeting. This is possible only on the condition that the plaintiff or the other party does not make claims to the division of the family’s property assets.

Once the court decision is recognized as legal and valid, the spouses become free from marital responsibilities. Each of them will need to come to the civil registry office with a passport, a court extract, a check for state fees, an application and a marriage certificate. A certificate confirming the divorce will be issued on the same day.

When is it possible to divorce a marriage at the request of one of the spouses?

According to the RF IC, unilateral divorce is allowed only in 3 cases:

• Establishment in court of the incapacity of one of the spouses;
• Establishment by the court of the fact of the disappearance of a spouse;
• The presence of a sentence on the basis of which one of the spouses is obliged to spend a period of more than 3 years in prison.

In such cases, circumstances such as young children or the desire/protest of the other half are not taken into account. The application form is unified and regulated by Government Decree No. 1274, in addition, on the basis of Art. 333.26 of the Tax Code of the Russian Federation, the state duty will be a fixed 350 rubles.

At the end of the month after filing the application, the plaintiff will receive a completed document confirming the fact of the divorce.

Help from a divorce lawyer

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Basic principles of property division

The division of marital assets can be done in three ways:

1. Marriage contract.
2. Property Agreement.
3. A court decision based on the norms of the Family Code.

Their legal features are indicated in the table.

The following assets acquired during a marital relationship and registered in the name of either spouse are recognized as common property:

1. 
   Real estate. This includes houses, land, apartments.

2. Royalties paid for intellectual works or inventions.
3. Earnings from business, salaries, benefits, any type of financial assistance, pensions.
4. Deposits.
5. Ownership of shares in various legal entities.
6. Bills and shares.
7. Movable things.
8. Jewelry.
9. Investment income.
10. Luxurious things (fur coats, expensive cutlery, antiques).
11. Bonds.

The law recognizes as personal belongings:

• Personal property (things necessary for practicing the chosen profession and generating income from it; clothing; cosmetics; shoes).
• Inherited property.
• Assets received or purchased before marriage.
• Items that were given or received free of charge during the marriage.

Legislation

During the divorce process, the Investigative Committee of the Russian Federation is in charge.

In more detail you need to pay attention to the following articles:

• 16 (grounds and reasons),
• 17 (limit for spouse),
• 18 (termination procedure),
• 19 (divorce through the registry office),
• 20 (divorce disputes).

If a divorce occurs at the initiative of one of the parties, then you need to be guided by Articles 21-24, which govern legal proceedings in divorce.

The RF IC imposes certain limits on the divorce process on the part of the man: you cannot divorce at the request of your spouse if there is a child under one year old in the marriage or the wife is pregnant.

List of documents for filing a claim

It includes:

1. Marriage certificate.
2. Copy of the passport.
3. Proof of payment of the fee, such as a bank receipt.
4. Evidence of the spouse’s evasion of divorce through the state registry office (correspondence by e-mail or instant messenger, audio or video recordings, witness statements).
5. Inventory of marital assets during their division.
6. Appraiser's report.
7. Property agreement or marriage contract.
8. Power of attorney from a representative.

Arbitrage practice

The case was considered by the Kambarsky District Court of the Udmurt Republic in August 2021.

The requirements stated in the statement of claim by the wife were as follows:

1. End official relations with your husband.
2. Divide the common property 50/50 and give her a third of the apartment, half of the garage and half of the car.

The plaintiff's reasoning was as follows:

• She wanted to get a divorce at the state registry office, and her husband, who verbally agreed with the end of the marriage, in fact did nothing, because the marriage did not interfere with him in any way.
• There is no family household at the time of the court hearing; she does not want to reconcile and live again with her husband in the same territory.
• They did not enter into a marriage contract or property agreement.

The husband, in turn, stated that he has no objections to separating from his wife, but does not agree with her claims regarding the property described in the lawsuit, so he asks the judge to deny his wife these demands.

Having examined the arguments and written documents presented by the parties, the judge made the following decisions:

1. Since the husband agrees with the request of the wife asking for a divorce, the court, taking into account the mutual will of the parties, grants a divorce to the marriage partners.
2. The court is obliged to take into account the following fact: property assets acquired by marriage partners after the actual termination of joint housekeeping and cohabitation, but while still married, cannot be common. As shown by the testimony of the parties and documents provided by the spouses, the car and apartment were purchased by the defendant during the separation of the marital partners. Consequently, this property cannot be divided, since it is not common.
3. As for the garage, it was purchased when the wife and husband were still running a common household and living together. For this reason, the court considers the garage a joint asset that must be divided 50/50.

Features of the law that complicate the process of divorce at the request of one of the spouses

The Family Code is very loyal to a woman and her problems. The spouse who has drawn up an application for divorce will have to obtain the written consent of his wife if the following circumstances exist in the family:

• Small child under one year old;
• The baby died less than a year ago;
• Woman's pregnancy.

Note: if a woman demands a divorce during pregnancy, the court will not take into account the husband’s protest on the grounds that he is pregnant with the woman. Since, according to legal norms, a woman’s pregnancy is her problem, and she has the right to manage her life, as well as the fate of the unborn child, at her own discretion.

If the expectant mother is against it, then the father has only two options for divorce - wait for the birth of the child and his one-year return, or still convince his wife and get an amicable divorce. Such norms are designed to protect a woman and baby from lack of money during her period of incapacity.

Regulatory framework