How is divorce carried out in court?

Divorce in court is the only method of divorce if there are no grounds for terminating the union of a man and a woman through the registry office. More details about this process can be found in the article below.

Family Code on judicial divorce

General requirements for the procedure and methods for terminating a marriage are set out in Chapter. 4 of the Family Code of the Russian Federation dated December 29, 1995 No. 223-FZ (hereinafter referred to as the FC). Based on the provisions contained in the norms of this chapter, it can be understood that divorce of spouses can be carried out only in 2 ways:

• by filing a corresponding claim in court;
• by contacting the Civil Registry Office.

Accordingly, divorce in court is always carried out when this cannot be done through the registry office.

To know which body to contact, you need to determine whether there are grounds provided for in Art. 19 SK:

1. Do both spouses who do not have minor children agree to divorce and will they submit a corresponding application to the registry office.
2. Is there a judicial act by which one of the spouses, regardless of the presence or absence of minor children:

• declared incompetent;
• sentenced to imprisonment for more than 3 years;
• declared missing.

If any of the above circumstances occurs, then you need to contact the civil registry office; if not, go to court. In Art. 21 of the IC also lists the grounds on which divorce is carried out through a judicial authority:

• presence of minor children (does not apply to exceptions under clause 2 of article 19 of the IC);
• disagreement of the husband or wife to divorce;
• avoidance of a husband or wife from filing an application with the registry office, if they have the opportunity to get a divorce through them.

Determination of jurisdiction and jurisdiction

Jurisdiction of the court in civil cases arising from family relations parties, which include divorce, is established in subsection. “1” clause 1 art. 22 of the Civil Procedure Code of the Russian Federation dated November 14, 2002 No. 138-FZ (hereinafter referred to as the Civil Procedure Code).

As a general rule, divorce cases are subject to the jurisdiction of a magistrate if the divorcing spouses have entered into an agreement among themselves and determined the future fate of the child, including with whom he will live. However, if the plaintiff declares not only a demand for termination of the marriage union, but also other demands, then in order to determine jurisdiction (amicable or district court), it is necessary to understand this issue more thoroughly.

For example, a claim should be filed in district court if, in addition to the termination of the marital relationship, it contains one or more of the following claims:

• on the division of common property, the price of which is more than 50,000 rubles. (if the price is less than this amount, you need to contact a magistrate);
• deprivation parental rights for the child of the second spouse;
• establishing paternity;
• other claims related to children, or claims that are beyond the jurisdiction of the magistrate in accordance with Art. 23 Code of Civil Procedure.

More detailed information about the determination of jurisdiction, including territorial, can be obtained from the article How is the jurisdiction of divorce cases determined? .

The procedure for divorce in court

A statement of claim may be filed in court by a limited number of persons:

• husband;
• wife;
• guardian of the incapacitated spouse.

The claim must meet the requirements of Art. 131 and 132 of the Code of Civil Procedure, but in addition the plaintiff must:

• indicate the date and place of marriage registration;
• report the presence of children under 18 years of age, their dates of birth, agreement with the spouse on their maintenance;
• attach to the claim certificates of marriage and birth of common children.

The procedure for dissolution of marriage through the court is similar to other legal proceedings considered in lawsuit proceedings, and is regulated by Chapter. 15 Civil Procedure Code. In this case, the process takes place in an open meeting. At the request of one of the parties, a judicial dissolution of marriage occurs in a closed proceeding, if compelling justification is presented that an open trial may cause:

• disclosure of protected secrets (for example, adoption);
• violation of the privacy of a participant in the process;
• the occurrence of circumstances that may contribute to the violation of the rights and interests of participants in the process.

Spouses - plaintiff and defendant - must appear at the court hearing when summoned by the court. Evasion of this obligation and failure of someone to appear entails the consequences specified in Art. 167 Code of Civil Procedure.

Divorce through the courts in accordance with Art. 22 and 23 SC can be classified into 2 types when the process takes place:

• with the consent of both parties to divorce;
• without the defendant's consent to divorce.

Depending on the presence or absence of this consent, some features are determined divorce proceedings.

What is the procedure for dissolving a marriage in court with the consent of the spouse. Judicial practice on divorce

The mutual desire of a husband and wife to divorce is the basis for a court hearing trial in more simple procedure without asking the parties the reasons for the divorce. In this case, it is considered that there is mutual agreement if:

• the plaintiff and defendant confirmed their decision at the court hearing;
• the defendant did not appear in court, but a corresponding statement was received from him, by which he admits the claim and asks for a divorce (see decision judicial section No. 13 of St. Petersburg dated November 9, 2010 in case No. 2-516/2010-13);
• the defendant did not appear at the trial, but no objections were received from him claims(see the decision of the court district No. 235 of the Chertanovsky judicial district of Moscow dated February 13, 2015 in case No. 02-0097/235/2015).

In all similar situations the judge has the right not to find out the circumstances that arose in married couple and served as a reason for the disagreement, however, he cannot make his decision on divorce earlier than a month from the moment the plaintiff-spouse filed the claim. Reducing this month period not provided for by law.

It is worth noting that reconciliation measures in relation to spouses who mutually desire a divorce cannot be applied by the court.

IMPORTANT! When compiling statement of claim, if the defendant agrees to a divorce, the plaintiff does not have to indicate the reasons why he wants to dissolve the marriage. This circumstance follows from paragraph 7 of the resolution of the Plenum of the Armed Forces of the Russian Federation “On the application of legislation by courts when considering cases of divorce” dated November 5, 1998 No. 15.

Divorce through court if the spouse disagrees

If one of the spouses does not agree to stop marital relations, and the second insists on this, such a trial will already have its own characteristics. Thus, the judge’s right to make a decision on the dissolution of the union will arise only when he establishes the following mandatory circumstances:

• the family has broken up and there is no way to save it;
• living together husband and wife will no longer be possible.

The fundamental difference between the process when the spouses agree to divorce and the proceedings when one of them is against it is precisely that the court must find out the above-mentioned circumstances of the irreparable collapse of the social unit and establish what exactly led to this result.

During the consideration of the case, if the court has doubts that the spouses really want to separate, and it decides that they can still restore the relationship, the plaintiff and defendant may be given time for reconciliation - no more than 3 months.

Such a decision may, in particular, be influenced by:

1. Submission of a corresponding petition by a party to the case.
2. Establishing circumstances indicating the possibility of reconciliation. These circumstances may arise when the judge determines the nature of the relationship between the spouses, establishes the reasons why the statement of claim was filed, and as a result of other actions.

In other words, the decision to postpone the trial can be made not only at the request of one of the spouses, but also by the court on its own initiative.

The court's decision

The final judicial act, which is issued by the court and which resolves the issue on the merits, must comply with the requirements established in Chapter. 16 Civil Procedure Code. However, in divorce proceedings, in addition to these requirements, others, defined in Art. 24 SK. Thus, the judge is obliged in his decision:

• indicate which parent the child will live with;
• establish which parent will pay money for child support and in what amount;
• if a demand for division of property is made, resolve it;
• if a claim is made for the collection of alimony for a spouse, collect it, indicating in what amount it will be withheld and for how long.

Given the high importance of these issues, the court must provide the parties with the opportunity to reach an agreement on them in voluntarily. And only if the husband and wife have not reached such an agreement or the agreement they have concluded violates someone else’s rights or interests, the court resolves them independently.

IMPORTANT! When resolving the question of whether a child who has not reached the age of majority will live with his mother or father, the court primarily proceeds from the interests of the child, and not the parents. To do this, he finds out whether parents can create for their child the necessary conditions for his upbringing and development (clause 3 of article 65 of the IC).

At what point does it end when a marriage is dissolved in court?

The result of a divorce is its termination. The moment of such termination is determined by the legislator in Art. 25 SK. In contrast to dissolution through the registry office, when the termination of marriage occurs on the day the corresponding entry is made in the registration book, when judicial termination of a marriage union, it is considered terminated on the day when the decision on this enters into legal force (see Article 209 of the Code of Civil Procedure). In this case, the court is entrusted with the obligation to notify the civil registry office of the decision.

Despite this, divorced citizens cannot limit themselves to just obtaining a judicial act. In order to certify the fact of divorce, they also need to obtain a certificate of this from the registry office. Without obtaining a certificate, some of their rights will be diminished. For example, they will not be able to:

• enter into another marriage;
• receive a passport with a new surname;
• complete some other documents.

It is noteworthy that previously the moment of termination of a marriage, regardless of the method of its dissolution, was determined by the day of making an entry in the registry office registration book. This practice led to the fact that persons divorced through the court did not always receive a certificate from the registry office, believing that they were already divorced. However, legally their marriage continued to exist.

Thus, divorce in court, although it is a simple procedure, can take a long time. certain time in the absence of mutual consent of the spouses.

IN modern society many families fall apart over time.

And there is no escape from this phenomenon. After all, there are many prerequisites for this.

At the same time, today there are several options, which we will consider below.

Today you can find a great variety. This is both the fading of mutual feelings and the emergence of new love.

In addition, over time, psychological incompatibility may appear between two people living under the same roof.

However, there may be other reasons for ending a relationship.

These include the abuse of bad habits by one of the spouses or the manifestation on his part various types violence. Often people get divorced due to health conditions. In a word, if you want to end your marital relationship, then you can always find a reason for this.

Currently, there are two ways for spouses to file a divorce: either through a court decision. As a rule, in the registry office the termination of a marriage is formalized when both people do not mind getting a divorce, and at the same time they do not have a divorce. However, in some cases, in this way it is possible to end the relationship even on the initiative of only one half of the family.

Divorce in the registry office at the request of one of the spouses

• establishment in court of the fact of incapacity of the second spouse;
• recognition, also by court, of a husband (wife) as missing;
• a court conviction that has entered into force, according to which the other spouse will have to serve a sentence of imprisonment for 3 years or more for committing a crime.

Then you can get a divorce regardless of whether there are common small children in the family or not. In all the situations described, the divorce application is signed by only one spouse. Its form is contained in the text of Decree of the Government of the Russian Federation No. 1274 of October 31, 1998. You can also fill out an application both at the registry office that registered the marriage, and at the institution at your place of residence.

It must be accompanied by a copy of the relevant court verdict regarding the second spouse. In addition, we must not forget that such a divorce procedure requires the payment of a state fee. In accordance with Article 333.26 of the Tax Code of the Russian Federation, its size today is 350 rubles.

After submitting your application, you need to wait about a month. After which the spouse who initiated the divorce process will be given an official document (certificate) confirming the dissolution of the marriage.

It is important not to forget that the procedure described above only applies to divorce.

If there are still claims against the ex-spouse, etc., then they will be the subject of a separate lawsuit.

Divorce through court

However, in most cases, in order to end a marital relationship, you still have to go to court.

In particular, the judicial procedure for divorce applies to cases where there is a dispute between people regarding divorce.

With the exception of the situations described above, divorce occurs through the court when the family grows up.

It also happens that the second spouse, although he agrees to the divorce, avoids in every possible way a visit to the registry office. In this case, there is also nothing left to do but go to court.

Which court to choose? Today, according to the law, divorce cases can be heard by both district courts and magistrates. It makes sense to turn to the latter when there are no disagreements between the spouses regarding the future fate of the children. In addition, if the claim plans to raise the issue of property, then the magistrate has the right to consider the case when the value of the disputed property does not exceed 50 thousand rubles.

Now it’s time to decide where to go to court based on the territory. According to the current Code of Civil Procedure of the Russian Federation, the plaintiff has the opportunity to file a claim for divorce in the court at his place of residence if it contains minor child or it will be difficult for him to travel to another court due to illness.

It is worth noting that, along with divorce, the claim may also include other demands against the opposite party. These include:

• division of joint property;
• both for the child and;
• determining the future place of residence of common children;

There are also situations when, along with a divorce, the plaintiff insists that... In this case, they are involved in the case mandatory also employees of the prosecutor's office and the guardianship and trusteeship authority.

However, a separate claim for property or alimony can be filed after the divorce. Moreover, if it comes to the fate of common property, then you need to remember limitation period. It is 3 years from the moment the court decision on divorce entered into legal force.

Documents for divorce

Any statement of claim, including divorce, is not complete without attachments. They include the evidence with which the initiator of the claim substantiates his claims.

If we talk specifically about divorce, then copies are usually attached to the claim:

• own passport;
• marriage certificates;
• birth certificates of children (if available).

For example, if the divorce is due to the second spouse having bad habits, then copies of the relevant medical reports may be attached to the statement of claim. When the case additionally concerns the division of joint property, a list of it, as well as documents confirming the value of the disputed property, are attached to the claim.

Nowadays, more and more spouses are entering into agreements with each other regarding the procedure for maintaining and raising children after a divorce. And if there is such a thing, a copy of it should also be attached to the claim.

Any statement of claim demanding divorce requires making a payment such as a state fee. If the case concerns only divorce, then the amount will be 600 rubles. When spouses still want to divide the property among themselves, a certain percentage of its value is additionally paid as a fee. The payment can be calculated based on the rates given in paragraph 1 of Art. 333.19 of the Tax Code of the Russian Federation.

A receipt from the bank must also be attached to the statement of claim. Otherwise the court will have every right first leave the claim without movement, and then return it to the plaintiff.

Procedure for ending a marriage

Using the court includes several stages. First, there are court hearings, of which there may be several. During them, the judge listens to the position of the spouses, interviews witnesses, if any, and also examines all the evidence provided by the parties. If one of the spouses is categorically against divorce, then the judge can give people time to think and make peace. For this purpose, the hearing of the case is postponed for approximately three months.

During the divorce process, the judge decides on the future fate common children. If the child has already reached 10 summer age, then the court must also listen to his opinion about which parent he wants to continue living with.

The consideration of the case ends with the issuance of an appropriate decision.

It is considered not an easy task. After all, it is necessary to collect all the documents, correctly draw up a statement of claim, while remaining psychologically calm when meeting with your ex-spouse. What grounds are needed for divorce? Now we will sort it out for you.

Divorce through the courts occurs in accordance with Article 21 of the Family Code for the following reasons:

1. There are children who are under 18 years old, the exception is when one of married couple considered missing, unable to perform work, or in prison for more than three years.
2. The other party does not want to get a divorce.
3. The spouse does not want to get a divorce at the registry office because he does not want to file for divorce, or he announces that he will not come to the court hearing.
4. If we consider Article 17 of the Family Code, then the husband does not have the right to divorce without the wife’s confirmation when she is pregnant and until the baby is one year old.\

What issues are decided by the court?

The main issues that the court decides during divorce are:

1. Who will the child live with after the divorce?
2. What amount of alimony will the husband pay?
3. What funds are available for the second spouse who is unable to work?
4. How will the division of jointly acquired property take place?

Based on Article 24 of the Family Code, the spouses must provide the court with an agreement in this regard. The court checks the interests of the children, the second spouse possible violation their interests. If this concerns children, then the court independently decides the fate of each child, regardless of the opinion of the divorcing spouses. If a divorce violates the interests of a spouse who is unable to work, at his request, the court rejects the application of the first spouse.

Therefore, consent is determined by the spouses or the court, which will decide the question of with whom he will live. minor child and which parent will receive child support.

When transferring children to one of the spouses, the court first of all takes into account the opinion of the child if there is no agreement on this issue between the parents. In this case, the main question for the court will be how his relationship with each of the spouses is, his age this moment, will this parent be able to create necessary conditions for his upbringing and healthy development.

The division of property will be carried out if one of the spouses files a claim. If the property includes third parties, then the court has the right to open a new case in accordance with paragraph 3 of Article 24 of the Family Code.

How long can a divorce last?

The least amount of time for the divorce process is needed for spouses who jointly decided on a divorce and resolved among themselves the issue of division of property and with whom the child will live.

In this case, the court does not offer them time for reconciliation; they do not need additional agreements and requirements. That's why the only negative in this case, two deadlines established by law for divorce proceedings are considered:

1. Month. The period of court proceedings is considered from the time of filing an application for divorce until the court hearing. The court's decision is considered illegal and may be subject to appeal.
2. Month. The period for challenging a court decision from adoption to entry into force. If during this time the husband and wife do not appeal to the court, then their marriage is considered dissolved.

What will be the duration of the divorce process if the spouses disagree?

If one of the spouses is against divorce, then the divorce process may take up to three months. In this case, the dissenting party invites the other party to decide conflict situation peacefully, then the court can extend the reconciliation period, which is one month, to a maximum of three months. If the spouses confirm that the period for reconciliation needs to be shortened, then the trial will go towards them. After time has passed, if reconciliation has not occurred between husband and wife, the court begins divorce proceedings. In general, the amount of time required for such a divorce process is about five months.

Divorce term if the defendant avoids court

If the husband or wife does not come to the court hearing, the court is postponed to the next hearing. If one of them requires a delay, then the court will accommodate it, but for no more than three months. Therefore, evading court, as well as failure to appear at the trial, may delay judgment for a while.

Duration of divorce proceedings in the presence of disagreements

If there is disagreement between the spouses on who the child will live with and how to divide the jointly acquired property, this is the reason for postponing the divorce. Since decisions on each issue are made in different courts, the divorce process can drag on from three months to one year.

Instructions for divorce through court with and without children

The first stage of a divorce is the collection of all necessary documents.

The main documents for filing with the court are:

1. Statement of claim from one of the spouses. Where indicates the absence of joint children and consent to divorce.
2. A copy of the statement of claim.
3. Passport details of each spouse. This includes pages 3 and 5.
4. Copies of passports of husband and wife, pages 3 and 5.
5. Marriage registration document.
6. Claims against the defendant. These include the collection of funds for the child, the division of property where the child under 18 years of age will live.

The following points must be clarified in the statement of claim:

• the presence of a conflict between the parties;
• lack of marital relations;
• further life together is impossible;
• evasion of the other party from the divorce.

You must submit an application with the documents specified above to the court, Where is the respondent spouse registered?.

Documents to be submitted to a district or magistrate court for the purpose of collecting alimony or a sum of money from the second spouse in divorce proceedings:

1. Statement of claim.
2. A copy of the statement of claim.
3. A document confirming payment of the state duty.
4. Marriage registration document.
5. Marriage contract. If there is one.
6. Written confirmation from the second spouse of consent to divorce.
7. Extract from the defendant's home book. At the request of the court in exceptional cases An extract from the applicant for divorce is required.
8. If the plaintiff makes any claims, evidence in the form of documents of his words will be required.
9. When filing a claim for alimony, the defendant will be required to provide proof of income for the previous three months before filing the claim.
10. A prescribed amount is required from the plaintiff to recover from the defendant.
11. Birth certificate of children under 18 years of age, or a notarized copy.

The judge himself determines what documents are needed in each individual case, since they are not prescribed in the Legislation.

After everything has been collected necessary documents, the paperwork will begin and the date will be indicated court session.

The next stage of the divorce will be an invitation two weeks from the date of filing of the statement of claim by each party. During communication with the defendant, he may agree with the claim or appeal it, but everything will be decided directly at the court hearing.

The next stage is the trial itself. If the plaintiff cannot clearly formulate a claim against the spouse, and he, in turn, refuses the divorce process, the judge gives 3 months to resolve the relationship. If after three months the conflict is not resolved, the judge is forced to divorce the couple.

Final stage - court decision recognizing divorce between spouses. It enters into force thirty days after its adoption at a court hearing. This is the solution ex-husband and the wife are required to take it to the registry office, presenting a passport, where, on its basis, both will be issued a certificate of divorce and a mark will be placed on the corresponding page of the identity document.

If the defendant fails to appear in court

1. If the defendant has any reason to miss the court hearing, then he has the right to send a representative in his place with a notarized power of attorney.
2. In the absence of a defendant good reasons with the appropriate document confirming the fact, the trial will be postponed to another date.
3. If the spouse deliberately skips the court, the hearing will take place without his direct participation and the decision on divorce will be made without his presence at the third court hearing. But the period for divorce will increase by one month.

Possible difficulties

When divorcing through court for a couple without children, the main difficulty is the division of joint property. Usually things are about real estate last for years, the division of an unfinished house or cottage is especially difficult. Its assessment will require considerable additional costs.

Another difficulty is the separation of a business during a divorce, since in this case there are third parties.

If the couple has a loan or mortgage, this can slow down the process if one of the spouses can file a lawsuit to refuse to pay it.

Question answer

Question: Is it possible to file an application for divorce at the registry office if my husband and I have a 7-year-old child. He doesn’t answer the phone, we haven’t lived together for a year.

Answer: No. An application for divorce can be filed in court at your place of registration, because you have children together.

Question: How long will a divorce through court last if we decided to get a divorce together?

Answer: In your case, the divorce will last no more than a month. To begin with, the judge will offer time for reconciliation of about a month, but if you refuse, then the divorce will be finalized in a month.

Question: What to do if the husband is not going to come to the court hearing? We have two kids.

Answer: If the husband avoids the court hearing, it is postponed to the next hearing. But this will happen no more than 3 times. After this, the judge will decide to dissolve the marriage in the absence of the spouse.

The judge explains

Magistrate Sergei Kolmykov talks about the procedure for divorce through the court.

17. Divorce in court.

A marriage is dissolved by the court if the breakdown of the family is obvious; maintaining such a marriage does not meet the interests of the spouses themselves, their children, or society.

The court considers divorce cases in accordance with the procedure established by the Code of Civil Procedure. A claim for divorce is brought to the district court at the place of residence of the spouses, if they live together, or the defendant spouse, if they live separately. A claim for divorce from a person whose place of residence is unknown may be brought at the choice of the plaintiff or the latter famous place residence of the defendant, or the location of his property. In cases where the plaintiff has minor children or when, for health reasons, it is difficult for the plaintiff to travel to the defendant’s place of residence, a claim for divorce may be filed at the plaintiff’s place of residence.

Divorce in court is provided for in the following cases:

1) with mutual consent of the spouses, but if the spouses have common minor children, except for cases where one of the spouses:

– declared missing by the court;

– declared incompetent by the court;

– convicted of committing a crime to imprisonment for a term of over three years;

2) in the absence of consent of one of the spouses to divorce;

3) if one of the spouses, despite his lack of objections, evades divorce from the registry office: refuses to submit an application, does not want to appear for state registration divorce, etc.

In case of divorce by mutual consent of both spouses who have common minor children, the court has no right to:

– refuse divorce;

– find out the reasons for the divorce;

– take measures to reconcile the spouses;

– in any other way invade their privacy.

Spouses have the right to submit to the court an agreement on children concluded in writing, which states:

? with which spouse the minor children will live;

? the procedure for payment and the amount of funds for the maintenance of minor children;

? the procedure for communication between children and the parent with whom they will not live.

The court has the right:

1) approve the agreement on children;

2) invite the spouses to clarify the agreement and approve it;

3) refuse to approve the agreement if it does not meet the interests of the children.

If the spouses have not submitted an agreement on children (or this agreement has not been approved by the court), the court is obliged to determine which parent the minor children will live with, what will be the procedure for communication between the children and the spouse with whom they do not live.

Various sociological studies show that the motives for initiating divorce proceedings are constant quarrels and conflicts in the family, immoral behavior of one of the spouses, drunkenness, adultery, etc. Most divorce claims contain a standard motive - dissimilarity of characters. The Family Code does not contain any list of circumstances under which a marriage can be dissolved. In accordance with Art. 22 of the Family Code, a marriage is dissolved if the court finds that the above and other circumstances have led to the fact that the further life together of the spouses and the preservation of the family have become impossible. If the court concludes that the claim for divorce is not sufficiently substantiated and it is possible to save the family, it may postpone the hearing of the case and set a period for reconciliation of the spouses within three months. Reconciliation of the spouses leads to the termination of the divorce case. If the conciliation procedure does not produce results and at least one of the spouses insists on dissolution of the marriage, the marriage is dissolved. In these cases, the court does not have the right to make a different decision to refuse divorce.

In cases where a marriage is dissolved, the court, at the request of the spouses (one of them), simultaneously resolves issues arising from the termination of the spouses' joint life: about children, about the division of common property, about the payment of funds for the maintenance of a disabled spouse. Issues related to the fate of children: about their place of residence (with mother or father), about the payment of funds for their maintenance, the court is obliged to resolve even in the absence of relevant demands of the divorcing spouses, if they have not reached an agreement on these issues or the agreement they have reached, in the opinion of the court, it is contrary to the interests of the child (Article 24 of the Family Code).

Determining the moment of termination of marriage is important for ensuring the rights and legitimate interests of former spouses. This point is defined in Art. 25 SK. A marriage dissolved by the civil registry office is terminated from the date of state registration of the divorce, i.e. from the date of drawing up the act of divorce. A marriage dissolved in court is considered terminated from the day the court decision on divorce enters into legal force. Accordingly, former spouses do not have the right to enter into new marriage before receiving a certificate of divorce from the previous marriage from the civil registry office, i.e. before its state registration.

The result of divorce is the termination of personal and property legal relations of the spouses, with the exception of certain rights and obligations specified in the law. Thus, the former spouse (former spouses) have the right to retain the surname assigned to him upon marriage (Clause 3, Article 32 of the Family Code). The consent of the other spouse is not required. The former spouse has the right, under certain conditions, to receive funds for his maintenance (alimony) from the other spouse (Article 9 °CC).

18. Issues resolved by the court when making a decision on divorce.

Divorce of marriage entails termination of marital responsibilities. Consequently ex-spouses have to decide a number of vital issues on which they can submit an agreement to the court. In the agreement, the spouses indicate with which of them the minor children will live, establish the procedure for paying funds for the maintenance of children and (or) a disabled spouse in need, and the amount of these funds. The agreement can also stipulate the issue of division of common property. As a rule, these issues are resolved peacefully, and no dispute arises over them in court.

If the spouses were unable to reach an agreement on the above issues or the spouses submitted an agreement to the court that, in the court’s opinion, violates the interests of the children or one of the spouses, the court is obliged to determine which parent the minor children will live with after the divorce. In resolving this issue, the court primarily considers the interests of the child. If the child has reached 10 years, the court takes into account his opinion.

The court is obliged to determine from which parent and in what amounts the child support for their children. In most cases, children remain to live with one parent. In this case, the other parent must pay child support. If the children remain to live with each parent, the court determines the amount of alimony taking into account the financial situation of each parent. The wealthier parent pays child support to the less wealthy parent. If at the time of divorce the children do not live with their parents, but are with third parties, then the issue of transferring them to their parents or one of the parents is resolved by filing an independent claim.

If during a divorce the spouses do not raise these issues with the court, then the court is obliged to resolve them on its own initiative.

At the request of the spouses or one of them, the court is obliged to divide the property in their joint ownership. Spouses who do not file a claim for division of property upon divorce retain the right to file a claim for division of jointly acquired property within three years after the divorce. If the division of common property affects the interests of third parties, the court has the right to separate the requirement for division of property into separate proceedings.

Also, the court is obliged, at the request of a spouse who has the right to receive maintenance from the other spouse, to determine the amount of this maintenance. To resolve this issue, the spouse who made such a demand is obliged to submit to the court documents confirming the spouse’s right to receive maintenance. A disabled or needy spouse has the right to receive alimony from a former spouse.

Divorce is carried out in court:

1) if the spouses have common minor children, except for the cases provided for in paragraph 2 of Art. 19 of the RF IC (recognition of a spouse by the court as missing, incompetent, or conviction of the spouse for committing a crime to imprisonment for a term of more than three years);

2) in the absence of consent of one of the spouses to divorce;

3) if one of the spouses, despite his lack of objections, evades divorce from the registry office.

Divorce of a marriage in court in the absence of the consent of one of the spouses to dissolve the marriage is carried out if the court determines that further life together of the spouses and the preservation of the family is impossible. When considering a divorce case in the absence of the consent of one of the spouses to dissolve the marriage, the court has the right to take measures to reconcile the spouses and has the right to postpone the hearing of the case, assigning the spouses a period for reconciliation within three months. Divorce is carried out if measures to reconcile the spouses are unsuccessful and the spouses (one of them) insist on dissolution of the marriage. If there is mutual consent to divorce spouses who have common minor children, as well as spouses specified in paragraph 2 of Art. 21 of the RF IC, the court dissolves a marriage without clarifying the reasons for the divorce. Spouses have the right to submit to the court an agreement regarding children (with which spouse they will live). In the absence of such an agreement or if the agreement violates the interests of the children, the court resolves this issue itself.

Divorce of marriage is carried out by the court no earlier than one month from the date the spouses filed an application for divorce. If a marriage is dissolved by court, the spouses may submit to the court an agreement on which of them will live with their minor children, on the procedure for paying funds for the maintenance of children and (or) a disabled, needy spouse, on the amount of these funds, or on the division of the spouses' common property . If there is no agreement between the spouses on these issues, and also if it is established that this agreement violates the interests of the children or one of the spouses, the court is obliged to:

1) determine which parent the minor children will live with after the divorce;

2) determine from which parent and in what amount alimony for their children is collected;

3) at the request of the spouses (one of them), to divide the property that is in their joint ownership;

4) at the request of the spouse who has the right to receive maintenance from the other spouse, determine the amount of this maintenance.

If the division of property affects the interests of third parties, the court has the right to separate the requirement for division of property into separate proceedings.

Divorce in court is subject to state registration in the manner established for state registration of civil status acts. The court is obliged, within three days from the date of entry into legal force of the court decision on divorce, to send an extract from this court decision to the civil registry office at the place of state registration of the marriage.

The grounds for declaring a marriage invalid are the following:

1) lack of mutual voluntary consent of a man and woman entering into marriage. This may be coercion into marriage, deception, delusion of the person entering into marriage, as well as if it is established that at the time of registration of the marriage the person did not understand the significance of his actions and could not manage them;

2) failure of married persons (or one of them) marriageable age at the time of marriage, unless it was reduced by in the prescribed manner local government body. However, in this case, the court may refuse a claim to invalidate a marriage concluded with a person under marriageable age if the interests of the minor spouse so require, as well as in the absence of his consent to invalidate the marriage;

3) marriage between persons, at least one of whom is already in a registered marriage. Only the second marriage is invalid;

4) marriage between close relatives or marriage between an adoptive parent and an adopted child;

5) marriage between persons, of whom at least one person is recognized by the court as incompetent due to a mental disorder, since such a person cannot understand the meaning of his actions or manage them, and therefore cannot consciously express his will to enter into marriage;

6) concealment by one of the persons entering into marriage of a sexually transmitted disease or HIV infection. The legal significance here is not the presence of such diseases in the spouse, but the fact of their concealment upon marriage; 7) fictitious marriage. A marriage entered into without the intention of the spouses (or one of them) to start a family is recognized as fictitious. The theory indicates the need to distinguish the concept fictitious marriage from the so-called “failed marriage” and from the “marriage of convenience”. A failed marriage is a marriage concluded in violation of the rules for its registration. Such a marriage does not exist and does not need to be declared invalid. The registration record of him is canceled on the basis of a court decision. A marriage of convenience is concluded, although out of certain selfish motives on the part of the spouse (or both), but with the unconditional intention of starting a family.

This list of grounds is closed. A marriage can only be declared invalid by a court in civil proceedings. A marriage cannot be declared invalid after its dissolution, except in cases where there is a degree of relationship prohibited by law between the spouses or the condition of one of the spouses at the time of state registration of the marriage in another undissolved marriage. A claim to declare a marriage invalid is not subject to the statute of limitations. An exception to this rule is if one of the persons entering into marriage concealed from the other the presence of a sexually transmitted disease or HIV infection (the statute of limitations is one year from the day the spouse learned or should have learned about the other spouse’s concealment of this circumstance). The court, within three days from the date the court decision enters into legal force, sends an extract from this decision to the civil registry office at the place of state registration of the marriage.

Personal non-property rights and obligations of spouses.

A marriage concluded in accordance with the established procedure gives rise to the rights and obligations of the spouses. They are divided into personal (non-property) and property. Legal regulation non-property rights and obligations are reduced to a minimum. They are characterized by the fact that:

– closely related to the personality and inseparable from it;

– inalienable at the will of their owner;

– cannot be the subject of any transactions;

– do not have a cash equivalent or salary;

- arise with the conclusion of marriage and cease from the moment of its termination.

Personal rights and responsibilities include:

1) the right of spouses to freely choose their occupation, profession, place of stay and residence. These opportunities comply with the Constitution of the Russian Federation, which proclaims freedom of labor and establishes the right of everyone to freely manage their ability to work, choose their type of activity and profession. The right of everyone who is legally present on the territory of the Russian Federation to move freely, choose their place of stay and residence is also enshrined in the Constitution of the Russian Federation. Restrictions on the rights of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence are permitted only on the basis of law. The place of residence of the spouse is the place where the spouse permanently or primarily resides. The place of stay means a hotel, sanatorium, rest home, boarding house, other similar institution, as well as residential premises that are not the citizen’s place of residence, in which he resides temporarily. A change of place of residence by one of the spouses does not entail a mandatory change of place of residence by the other spouse;

2) joint resolution by spouses of issues of motherhood, paternity, upbringing and education of children, and other issues of family life. Raising children is an equal right and responsibility of parents. All issues related to raising children must be resolved by parents by mutual consent, taking into account the opinions of the children and based on the interests of the children. Other issues of family life include the distribution of the family budget, purchases, determining the time and place of vacation and other issues covering all areas of family life. The personal non-property rights of a spouse correspond to the duties of a non-property nature of the other spouse, which consist in the fact that the spouse is obliged not to interfere with the other in the exercise of his personal non-property rights;

3) the right to choose a surname upon marriage and divorce. The exercise of this right is carried out upon marriage by indicating the chosen surname in the application for marriage. However, each spouse has the right to retain his or her premarital surname upon marriage. In addition, spouses have the right to have a double surname. Upon divorce, each spouse also has the right to independently and independently resolve the issue of their surname. In this case, the spouses have the right to leave a common surname or restore their premarital surnames;

4) the right to give consent to the adoption of a child by the other spouse, if the child is not adopted by both;

5) the right to divorce;

6) the duty of spouses to build their relationship on the basis of mutual respect and mutual assistance, as well as the duty of spouses to promote the well-being and strengthening of the family, to take care of the well-being and development of their children.

General characteristics of property relations between spouses.

The property relations of spouses are amenable to legal regulation much better than

personal non-property. Therefore, taking up significantly less space compared to them in life

spouses, they nevertheless constitute the majority of the relations between spouses regulated by law.

Property relations between spouses require legal regulation because, firstly,

property rights can almost always 1 be exercised by force and for non-fulfillment

property obligations, it is possible to establish sanctions. In addition, in property

relationships need certainty. Both the spouses themselves and third parties are interested in this:

heirs, creditors, counterparties.

However, not all property relations between spouses are regulated by law. Some of them remain

outside the law, such as agreements between spouses in everyday life about who

pays the rent, who pays for the summer vacation, as a rule, are of a purely domestic nature and not

subject to enforcement.

General provisions on the property of spouses are currently included in the Civil Code of the Russian Federation (Article 256).

Consequently, the joint property of spouses is regulated simultaneously by civil and

family law. All general norms of the Civil Code on

property in general and joint ownership in particular. Family law about

matrimonial property cannot conflict with the Civil Code.

It, firstly, details and supplements the provisions of the Civil Code, and secondly, it establishes certain

exceptions to general rules provided for by civil legislation, related to special

fika of family relationships. The ratio of civilians and family norms about property rights

legislation can be considered as general and special norms.

It would not be an exaggeration to say that the rules governing property relations between spouses

were subjected to _______in Family Code the most significant changes. The very principles of regulation of property relations have changed. Instead of the legal regime of matrimonial property,

established by mandatory rules that do not allow its change through agreements

spouses, the new legislation contains a legal regime for matrimonial property established

dispositive norms. This regime applies to property relations between spouses only in

if the spouses did not want to change it with the help marriage contract or marriage contract

terminated or declared invalid.

Property relations of spouses can be divided into two groups: matrimonial relations

property and alimony legal relations of spouses. This chapter covers only the first

relationship group. The rules governing relations between spouses regarding property include

norms establishing the legal regime of property of spouses, norms defining contractual

regime of property of spouses, and rules governing the liability of spouses for obligations

to third parties.

Legal regime of marital property.

Legal regime of marital property– regime of their joint ownership. The legal regime for the property of the spouses applies unless otherwise provided by the marriage contract. Property acquired by spouses during marriage is their joint property.

Property acquired by spouses during marriage (common property of spouses) includes:

– income of each spouse from work, entrepreneurial activity and results of intellectual activity;

– pensions, benefits received by them, as well as other monetary payments that do not have a special purpose (amounts of financial assistance, amounts paid in compensation for damage due to loss of ability to work due to injury or other damage to health, etc.);

– movable and immovable things acquired at the expense of the spouses’ common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations;

– any other property acquired by the spouses during the marriage, regardless of which spouse’s name it was acquired in or in the name of which or which of the spouses contributed funds.

The right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income.

Possession, use and disposal of the common property of the spouses is carried out by mutual consent of the spouses. When one of the spouses enters into a transaction to dispose of the spouses’ common property, it is assumed that he is acting with the consent of the other spouse. A transaction made by one of the spouses to dispose of the common property of the spouses may be declared invalid by the court on the grounds of lack of consent of the other spouse, only at his request and only in cases where it is proven that the other party to the transaction knew or should have known about the other spouse’s disagreement spouse to complete this transaction.

In order for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the notarized consent of the other spouse. The spouse, whose notarized consent to carry out the said transaction was not received, has the right to demand that the transaction be declared invalid in court within a year from the day when he learned or should have learned about the completion of this transaction. Real estate includes land plots, subsoil plots, isolated water bodies and all objects that are connected to the land in such a way that their movement is impossible without disproportionate damage to their purpose, including forests and perennial plantings, residential and non-residential premises, buildings, structures, enterprises as property complexes. If the court satisfies the request of one of the spouses to recognize the transaction of the other spouse regarding the disposal of common property as invalid, the rules of civil law are applied. The RF IC does not have a special rule regulating the right of spouses to enter into transactions with each other. However, they certainly have such a right, since they are subjects of civil law.

Division of common property of spouses.

The division of the common property of the spouses can be made on different stages family life:

- during marriage;

– after its termination at the request of any of the spouses;

– in the event of a creditor filing a demand for division of the spouses’ common property in order to foreclose on the share of one of the spouses in the spouses’ common property.

The law (Article 38 of the RF IC) provides for three ways of dividing common property:

- by their agreement (the form of agreement can be any - written, oral);

– notarized agreement;

- judicially. In the event of a dispute, the division of the common property of the spouses, as well as the determination of the spouses' shares in this property, are carried out in court.

When dividing the common property of spouses, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses. If one of the spouses is transferred property whose value exceeds his or her share, the other spouse may be awarded appropriate monetary or other compensation. The court may recognize the property acquired by each of the spouses during the period of their separation upon termination of family relations as the property of each of them. Items purchased solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, children's library, etc.) are not subject to division and are transferred without compensation to the spouse with whom the children live. Contributions made by spouses at the expense of the spouses' common property in the name of their common minor children are considered to belong to these children and are not taken into account when dividing the spouses' common property. The court may take measures to secure the claim (seizure of property, prohibition of the defendant from performing certain actions, prohibition of other persons to transfer property to the defendant, etc.).

In the case of division of the common property of the spouses during the marriage, that part of the common property of the spouses that was not divided, as well as the property acquired by the spouses during the marriage in the future, constitutes them joint ownership. The property subject to division includes common property acquired by spouses during marriage and available or held by third parties (rent, gratuitous use, trust management, contract, etc.).

When dividing the common property of the spouses and determining the shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses. The court has the right to deviate from the beginning of equality of shares of spouses in their common property based on the interests of minor children and (or) based on the noteworthy interest of one of the spouses, in particular in cases where the other spouse did not receive income from for unjustifiable reasons or spent the common property of the spouses to the detriment of the interests of the family (abuse of alcohol or drugs, gambling, lotteries, etc.).

When dividing the common property of the spouses, the common debts of the spouses are distributed between the spouses in proportion to the shares awarded to them.

A three-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved.

Contractual regime of spouses' property.

defining the property rights and obligations of spouses during marriage and (or) in the event of its dissolution. A marriage contract can be concluded both before the state registration of marriage and at any time during the marriage.

A marriage contract concluded before the state registration of the marriage comes into force on the date of state registration of the marriage. The marriage contract is concluded in writing and is subject to notarization. In this case, the notary must not only check the compliance of the marriage contract with the law, but also explain to the parties its meaning and significance. A state fee is charged for notarization of a marriage contract. Failure to comply with the notarial form of the marriage contract entails its invalidity. Such an agreement is void and does not entail legal consequences.

The subjects of a marriage contract can be both persons entering into marriage and persons who have already entered into legal marriage, - spouses. If a person has not reached marriageable age, but has received permission from a local government body to get married, then he can enter into a marriage contract before registering the marriage with the written consent of his parents or guardians. After marriage, the minor spouse acquires full civil legal capacity and, therefore, has the right to enter into a marriage contract independently.

By means of a marriage contract, spouses have the right to change the regime of joint ownership established by law, establish a regime of joint, shared or separate ownership of all the property of the spouses, their individual species or on the property of each spouse.

A marriage contract can be concluded both in relation to the existing and in relation to the future property of the spouses. The provisions of the marriage contract should not contradict the norms of the Civil Code of the Russian Federation.

Spouses have the right to define their rights and obligations in a marriage contract:

– according to mutual content;

– ways to participate in each other’s income;

– the procedure for each of them to bear family expenses;

– determine the property that will be transferred to each spouse in the event of divorce;

– include in the marriage contract any other provisions relating to the property relations of the spouses.

The rights and obligations provided for in a marriage contract may be limited to certain periods or made dependent on the occurrence or non-occurrence of certain conditions. The deadline can be determined by a calendar date, the expiration of a period of time, or an indication of an event that must inevitably occur.

A marriage contract cannot:

– limit the legal capacity or capacity of spouses;

– limit their right to go to court to protect their rights;

– regulate personal non-property relations between spouses;

– regulate the rights and obligations of spouses in relation to children;

– provide for provisions limiting the right of a disabled spouse in need to receive maintenance;

Responsibility of spouses for obligations.

Obligations of spouses to third parties may arise from various grounds: contracts, harm, as a result of unjust enrichment or the commission of a crime, etc. The obligations of spouses can be personal and general. Personal obligations of spouses include those that each of them has independently incurred. General obligations arise on the initiative of both spouses in the interests of the entire family. In these obligations, both spouses are debtors. An obligation aimed at satisfying the interests of the family may arise from a legal relationship in which only one of the spouses is the debtor, but everything received is spent on the needs of the family. General obligations also include the obligations of spouses to compensate for damage caused by their minor children. For the obligations of one of the spouses, recovery can only be made on the property of that spouse. If this property is insufficient, the creditor has the right to demand the allocation of the share of the debtor spouse, which would be due to the debtor spouse during the division of the common property of the spouses, in order to foreclose on it. This rule applies regardless of what property regime is in effect between spouses (legal or contractual).

Execution is applied to the common property of the spouses for the common obligations of the spouses, as well as for the obligations of one of the spouses, if the court establishes that everything received under the obligations of one of the spouses was used for the needs of the family. If this property is insufficient, the spouses bear joint liability for these obligations with the property of each of them. If a court verdict establishes that the common property of the spouses was acquired or increased from funds obtained by one of the spouses through criminal means, the penalty may be applied to the common property of the spouses or to a part of it, respectively.

The liability of spouses for harm caused by their minor children is determined by civil law and depends on the age of the child and the extent of his legal capacity. Foreclosing on the property of spouses when they compensate for damage caused by their minor children is carried out in accordance with paragraph 2 of Art. 45 RF IC. Parents who have compensated for damage caused by minor children do not have the right of recourse against them.

The list of types of citizens' property that cannot be levied under executive documents is determined by law.

The spouse is obliged to notify his creditor(s) of the conclusion, modification or termination of the marriage contract. If this obligation is not fulfilled, the spouse is liable for his obligations, regardless of the contents of the marriage contract. However, the establishment of this rule does not mean that the spouse is obliged to disclose the contents of the marriage contract to the creditor.

The creditor of the debtor spouse has the right to demand changes in the terms or termination of the agreement concluded between them in connection with significantly changed circumstances in the manner established by Art. 451–453 of the Civil Code of the Russian Federation.

Establishment of paternity and maternity.

The paternity of a person who is not married to the child’s mother is established by submitting a joint application to the registry office by the father and mother of the child. In this case the man expresses his will to recognize the child born from him, and the mother agrees to recognize his paternity. Establishing paternity at the request of the guardian of a person declared incompetent is not allowed. Acknowledgment of paternity by the person declared incompetent is not allowed. State registration of paternity establishment is carried out by the civil registry office at the place of residence of the child’s father or mother, who are not married at the time of the child’s birth, or at the place of state registration of the child’s birth.

If the father or mother of the child does not have the opportunity to personally submit an application, their expression of will can be formalized in separate applications to establish paternity. The signature of a person who is unable to be present when submitting such an application must be notarized. A joint application to establish paternity can be submitted during state registration of the birth of a child, as well as after state registration of the birth of a child.

If there is reason to believe that filing a joint application to establish paternity after the birth of the child may be impossible or difficult, the future father and mother of the child, who are not married at the time of the child's birth, may file such an application during the mother's pregnancy. If there is such an application, state registration of paternity establishment is carried out simultaneously with the state registration of the child’s birth and a new application is not required if, before the state registration of the child’s birth, the previously submitted application was not withdrawn by the father or mother. The joint declaration of paternity must include:

– recognition of paternity has been confirmed by a person who is not married to the child’s mother;

– mother’s consent to establish paternity;

– the following information is indicated: full name, date and place of birth, citizenship, place of residence of the person who recognizes himself as the father of the child and the mother of the child; Full name, gender, date and place of birth of the child;

– details of the record of the act of his birth (when establishing paternity after state registration of the child’s birth);

– details of the record of the marriage act (in the case of the child’s mother marrying his father after the birth of the child);

– last name, first name, patronymic of the child after paternity has been established;

– details of documents proving the identity of the father and mother of the child.

In the event of the death of the mother, her recognition as incompetent, the impossibility of establishing the whereabouts of the mother, or in the event of deprivation of her parental rights, the paternity of a person who is not married to the child’s mother is established upon the application of the child’s father with the consent of the guardianship and trusteeship authority, in the absence of such consent - by decision court.

Establishing paternity in relation to a person who has reached the age of eighteen is allowed only with his consent, and if he is declared incompetent, with the consent of his guardian or guardianship authority.