Concept of divorce
Considering the equality of men and women, any of the spouses can raise the issue of ending the relationship, that is, file for divorce. From a legal point of view, divorce is a procedure established by law to terminate marital relations.
Current legislation provides for the possibility of dissolving a marriage both voluntarily and through the courts.
In the first case, the dissolution of the marriage relationship is carried out through the registry office. In the second - through territorial courts in the procedure of claim proceedings in accordance with the norms of civil procedural legislation of the Russian Federation.
Husband's right to end marriage
It is quite understandable that the easiest way to get a divorce is for people who do not have young children and common wealth, because the decision they make concerns only two people. It is enough for a married couple to contact the registry office with a corresponding application and get a divorce according to a simplified procedure. Important - after a month, both parties are required to personally visit a government agency to obtain a certificate of termination of the marriage.
Marriages in which children were born who were under 18 years of age at the time of divorce are subject to dissolution only in court. If there are disputes about where and with whom the offspring will live after the parents separate, and the spouses do not have significant property claims against each other, the magistrate’s court will be able to divorce the couple.
But when we are talking about a difficult, high-conflict divorce, in which not only the reasons that prompted the spouses to separate are clarified, but also the issue of division of property, and it is also determined who the children will remain with after the divorce, then only a district-level court can make a decision .
By law, both husband and wife have the right to file for divorce. The only circumstance that gives a woman an advantage is if the girl is pregnant or is the mother of a baby under one year of age. This fact does not allow a man to initiate divorce proceedings. The unfortunate circumstance when the baby did not survive childbirth or died before its first birthday does not change matters. In this way, the law protects representatives of the fair sex who are in an unstable emotional state.
When it comes to a wife’s pregnancy, the Family Code does not clearly define that the legal spouse must be the father of the unborn child. To avoid divorce, a pregnant woman only needs to provide the judge with a certificate of her pregnancy, without specifying paternity.
If the expectant or newly made mother agrees to dissolve the marriage, she must give written consent to this.
Regulatory documents
What rights a wife has when divorcing her husband and what a man has the right to count on is determined by the requirements of family and civil law. The legislative framework in the field of events related to divorce is:
- ;
- (in terms of property relations).
- (if the marriage is dissolved not through the registry office, but in court).
If court decisions are enforced, the rules apply.
Personal non-property rights of husband and wife
Family law includes among the personal non-property rights of spouses those that are inextricably linked with the personality of the husband or wife and their legitimate interests. Among them, in particular, we can list such intangible benefits as the right to:
- free choice of occupation and activity;
- professional implementation;
- freedom of movement and determination of place of residence;
- equality in matters of family planning and raising children;
- equal distribution of property benefits;
- resolving other issues of family life.
Personal non-property rights cannot be the subject of any agreements in a marriage contract, they cannot be changed, they do not terminate in connection with a person’s entry into marriage. In other words, these are rights of a strictly personal nature, so they cannot be changed whether the second spouse wants it or not.
Parental rights of married partners
In accordance with, the rights and responsibilities of parents in relation to children are determined by the origin of the latter. Thus, the birth of children, as well as adoption, entails the establishment of a whole list of parental rights to:
- upbringing;
- representing the interests of the child before third parties;
- communication with your child;
- access to educational and medical information from relevant institutions;
- receiving maintenance from their adult children (for persons deprived of the ability to work) and others.
When children reach the age of majority, parental rights in relation to them are automatically terminated, except for the right of disabled parents to receive maintenance. Termination of parental rights also occurs if children become legally competent before the age of 18.
Property rights
Upon marriage, spouses acquire mutual rights and obligations, including those of a property nature. Here it is necessary to distinguish between two modes of property: acquisition of property before marriage and after marriage. In the second case, material assets will belong to both spouses by right of joint ownership.
Thus, the main property rights are the rights of spouses to property upon divorce.
The category of subjective property rights of a husband and wife includes alimony relations associated with the obligation of one of the spouses to support joint children.
According to the joint property regime, the disposal of jointly acquired property is possible only with the mutual consent of both spouses.
Division of property after divorce
After a divorce, former spouses often have property disputes. As a rule, this concerns the conditions for the division of material wealth acquired during marriage: what the wife has the right to in the event of a divorce, and what will go to the ex-husband.
It is important to understand that, regardless of whether certain benefits were acquired only with the funds of one of the spouses, each of them has equal rights to this property. The concept of community property implies that everything acquired during marriage is considered common property and therefore should be divided equally.
To understand this issue more deeply, read about how property is divided during a divorce.
How is the division of marital property carried out?
When dividing property, as a general rule, everything jointly acquired is divided equally.
After the divorce, the ex-husband and wife have questions related to property relations. Such disputes are related to the division of property acquired during marriage. The peculiarity of such a division is that without taking into account at whose expense material assets were acquired, the rights to them are distributed in equal shares, and accordingly it will be divided equally.
Property subject to division during a divorce is joint property, provided that there are no provisions on this issue in the marriage contract. The exception to the rule is property that is personal property. Joint property will include:
- Wages, as well as any other income received in the course of employment;
- Any patent or copyright royalties;
- Real estate;
- Blocks of shares received through transactions, donations or actions of one of the spouses, shares in limited liability companies, shares in a cooperative.
There is also property that is not subject to division. This will be everything that belongs individually to everyone:
- Value acquired before marriage;
- Property received through gratuitous transfer (gift, inheritance);
- Individual items that can only be owned and disposed of individually: shoes, work tools, clothing, sports equipment;
- Results of sports or intellectual achievements: awards, original works, certificates, diplomas, inventions;
- Living space provided for residence by the department in which one of the spouses is serving in the military;
- Property acquired during the period of living separately, as well as during the divorce process;
- Maternity capital funds.
Living space purchased before the official marriage will never become the subject of disputes between former spouses, since according to the law it cannot be subject to division. The same situation will happen with an apartment given to a husband or wife during a period of happy family life.
Agreement on the upbringing and maintenance of children, assignment of alimony
Regardless of who the children will live with after their parents' divorce, the former spouses retain parental responsibilities. The duty of parents is to raise their child and provide for him financially.
According to current family law, parents have the right to agree among themselves which of them will take on these responsibilities and to conclude an appropriate agreement on the upbringing (maintenance) of the child.
In addition, parents can independently determine the amount of funds to be paid for child support, establish the frequency and procedure for payment.
The alimony agreement comes into force from the moment it is notarized, after which it becomes binding on both parties.
Find out more about how to properly draw up a child support agreement in order to receive alimony.
The right for children to live with their parents
In accordance with, children have the right to live and be raised in a full-fledged family. The same article provides for the child’s right to live together with his parents.
Unfortunately, sometimes situations arise when children cannot live with both parents, for example, if the father or mother has an antisocial lifestyle. In such cases, the fate of the child, including his place of residence, is determined with the participation of the guardianship and trusteeship authorities.
In the event of divorce, the question of which parent the children remain with must be resolved. In the vast majority of cases, the court takes the mother's side.
The baby is left with his mother, and the father is entrusted with the responsibility for his maintenance. This does not mean that dad has no chance of winning the argument - often the judge takes into account the opinion of the child himself.
Read more about how current legislation regulates a father’s rights to a child after a divorce.
What to do to avoid dividing property after divorce?
The only way to resolve the issue of distribution of property between ex-husband and wife without the participation of the court is a peace agreement.
It may well be that one of them does not want to claim his share and will give it to the other. In practice, such situations are less common than judicial sections.
Another option is to enter into a prenuptial agreement that suits both parties and allows them to preserve what each of them needs in the event of a divorce. Also, the question is irrelevant if there is nothing to divide, there is no property. This happens in short-term marriages.
In all other cases, it is unlikely that it will be possible to protect yourself from division, therefore, when entering into a family relationship, even with complete trust, it is advisable to treat this issue responsibly.
conclusions
Russian legislation protects the property rights of a wife during a divorce. Even if she sat at home with the child, while her husband worked and brought his income into the house, upon divorce, all jointly acquired property will be divided equally.
During the trial, the court proceeds from the fact that a woman protects the family hearth, and therefore makes the same valuable contribution to the increase of joint property as a man who earns money to support the family.
At the same time, the rights of the husband during a divorce are equal to the rights of his wife. The law does not provide any preferences or exceptions based solely on gender.
How are monthly child benefits calculated?
In addition to the division of joint property, the issue of calculating alimony for child support arises. If the spouses were unable to resolve it on their own, the court will do so.
If the payer has a permanent, confirmed income, then the amount of payments is determined as follows:
- ¼ per child;
- 1/3 for two;
- ½ for three or more of the amount of income.
However, the court has the right to increase or slightly reduce the amount of payment if there are appropriate grounds.
If the payer does not have an official income, the payment is determined in a fixed amount.
