Divorce without the presence of spouses

Divorce without the presence of spouses

Divorce without the presence of spouses in Ukraine

Modern family legislation in Ukraine considers marriage as a purely voluntary union of a husband and wife. Therefore, the law does not hinder the dissolution of a marriage on the initiative of one of the spouses. Even if the second does not agree or does not want to be present.

The only restriction imposed on divorce by the Family Code of Ukraine is the prohibition of divorce if one of the parties disagrees with it, namely when the party does not agree – a pregnant woman or the mother of a child under one year of age. This prohibition relates to the law for the protection of mothers and children. But the ban is temporary – as soon as the child turns one year old, the marriage can be dissolved without the consent of the wife.

Divorce is also possible without the presence of one of the spouses, or even both parties, at the procedure.

Is it possible to file a divorce without the participation of one of the spouses in Ukraine?

Family lawyers are often asked this question. The circumstances in which joint actions of the spouses to dissolve the marriage are difficult or impossible may be different. For example, as a result of damage to the relationship between spouses, she no longer wants to see each other, even in court. Or when one of the spouses has committed a criminal offense against the other.

Our clients often ask similar questions:

My husband and I divorced three years ago. He got a job abroad, and I didn't want to go with him. Subsequently, we both realized that our marriage did not make sense. We both want a divorce, but a person cannot and does not want to come to Lviv to formalize it. Can I file a divorce myself? What is needed for this?

Reasons for divorce without the participation of the parties in Ukraine

Divorce without the participation (as well as without consent) of one of the spouses is possible. But the course of the procedure itself depends on the reason for the absence of one of the parties. The reason may be valid, then the absent party must notify the court or the registry office about it. If the reason is disrespectful, and is explained by the desire of one of the parties to avoid divorce, the procedure will be delayed.

The physical impossibility of the presence of one of the spouses (absence for reasons not related to opposition to the breakup of marriage) is a fairly common problem, since sometimes it is difficult or impossible for him to appear at the registry office or at the court session. For example:

  • stay in hospital (or have an injury incompatible with the ability to move);
  • stay on a long business trip or work in another area of ​​the country;
  • stay abroad;
  • restricted in movement due to disability;

In such cases, the person should send (or transfer) the court a petition “to consider the case without the participation and presence of the defendant (plaintiff)” that he received a message about the time and place of the meeting, familiarized himself with the claim, has no objections to divorce, but not may come to the meeting for such and such a reason. Sample link.

The reason should be documented: provide a sick leave, a certificate of disability, a certificate of residence, a certificate from work, etc.). This will be quite enough for the court to decide on the satisfaction of the drawn up petition.

When divorce is possible without the presence of spouses (spouse) in Ukraine

A person who agrees to a divorce, who does not want to interfere with him, but does not have the opportunity to be present at the registry office or in court, has the right to perform the following actions (one of them is enough):

  • Submit a petition to consider the case without his participation and presence;

The application must be accompanied by documentary evidence of a valid reason for failure to appear. By the way, if both spouses submit such a petition, the court will consider the case and divorce them in absentia. In this case, neither of the parties will be in the courtroom, and this will not affect the outcome of the case.

  • To notarize consent to divorce and bring it to trial.

If both family members agree to a divorce, and there are no other disputes between them (the property is divided peacefully, an agreement on child support has been drawn up), the court may decide on the divorce at the very first meeting, bypassing the stage of “granting a time limit for reconciliation of spouses.”

  • Issue a power of attorney for another person notarized.

The trustee (representative) will be able to perform all the necessary actions on behalf of one of the spouses, in court and at the registry office. The representative does not have to be a lawyer; you can issue a power of attorney for a friend or relative.

  • Submit a motion to the court to use video conferencing.

If the technical capabilities of a particular court allow, it is possible to apply for a “remote” presence of one of the spouses in the courtroom. If there is a valid reason for physical failure to appear in court, but if you want to take part in the process, this option is allowed by modern courts.

Intentional absence (refusal to participate) of a spouse in divorce in Ukraine

The peculiarity of divorce proceedings is that their result is actually a foregone conclusion from the moment the claim is filed. If divorce is impossible (in the analyzed case of disagreement of a pregnant woman), the claim will simply not be accepted. In other cases, the dissolution of a marriage is only a matter of time.

Therefore, deliberate failure to appear at a court hearing due to disagreement with a divorce is both effective and ineffective. On the one hand, the court quite adequately perceives it – as a manifestation of the protest of one of the spouses against the divorce. On the other hand, the spouse’s disagreement in itself is not at all a reason to deny the other party the right to divorce. So, in the end, failure to appear for no good reason can only postpone, but not exclude, divorce.

In practice, it usually happens like this: if one of the spouses did not appear at the first meeting for an unjustified reason, the court gives the so-called “period for reconciliation” (for a period of one to three months). And he appoints a new meeting. In case of repeated failure to appear, the meeting is postponed for another month. For the third time, the decision on divorce is made in the absence of a husband, if a person appears and continues to insist on divorce.

If the divorce is complicated by disputes about alimony, children, property, the court may need even more time. But, in the end, no matter how much the dissenting man disrupts the court hearings, the spouses will be separated, and the property will be divided, and alimony will be appointed. It’s just not that fast.

It follows from this that deliberate failure to appear in court is a bad strategy, it does not bring any benefit to the one who uses it. Unless it makes it possible for a spouse to drag out the process.

Other reasons for divorcing spouses without the participation of the parties in Ukraine

Legal practice highlights several more circumstances in which a spouse does not participate in a court or registry office:

  1. one of the spouses does not know the place of actual residence of the other;
  2. a man who does not agree to divorce behaves aggressively, and the second is simply afraid of contact with him;
  3. the events leading up to the divorce were so conflicting that both parties chose never to communicate again;
  4. One of the parties categorically does not want to “waste time” on a divorce;

In all these cases, the law permits “unilateral” divorce.

Also useful information on the website “Divorce Online” of the family lawyer Alexei Nikolayevich Scriabin for you may be: state duty for divorce, divorce certificate, restoration of a divorce certificate, invalidity of marriage, restoration of marriage, divorce in the presence of common minor children, refusal to dissolve a marriage , divorce during pregnancy.

Where to go for divorce without the participation of spouses in Ukraine

Depending on the circumstances, the application is submitted to the registry office or the court at the place of residence of one of the spouses. Preference is given to those with whom the common young child remains to live.

Registry offices carry out a divorce in such cases:

  • Childless spouses, or such that has adult children;
  • With the common consent of the spouses or in the event that one of the spouses through the court is recognized as dead, missing, incapacitated, or imprisoned for a term of over 3 years (Family Code of Ukraine);
  • In the absence of property disputes (which is immaterial, since it is possible to divide property in court even after the divorce has taken place)
    District (city) courts terminate a marriage in the following cases:
  • If the spouses have common minor children (since the issue of alimony must be resolved)
  • If the spouses have disputes about which of the spouses the common child will stay with;
  • Recovery of alimony from one of the spouses to the other, if he is disabled;
  • If one of the spouses does not agree to divorce;
  • In the presence of property disputes;

Any of the authorities that dissolves the marriage can lead the divorce procedure without the participation of the spouses. Subject to certain conditions.

What to do if there is no way to come to the registry office or to the court in Ukraine

Objective or subjective, respected or disrespectful, but the reasons for not participating (not wanting to participate) in their own process of divorce can be in any person. However, there are constructive solutions to this problem, set out in the civil procedural legislation of Ukraine.

Presence of a representative of the spouses by proxy in Ukraine

The easiest and most obvious way to avoid a visit to the court or the registry office for divorce is to identify your representative. For this, the man should draw up a power of attorney for the person, which will allow him to act on your behalf. And certify it with a notary. However, a common method used in such cases is to conclude an agreement with a family lawyer.

The trustee – “Representative”, acquires all the rights and obligations of a citizen, instructed him to act on his own behalf. But only within the framework of the assigned case.

The power of attorney should indicate which part of the divorce process the representative’s powers apply to:

  • Collection and submission of documents to the court or registry office;
  • Attendance at court hearings;
  • Obtaining a divorce certificate;
  • All operations related to the dissolution of marriage, from the preparation of the claim and ending with the receipt of the final documents;

If your representative is a professional lawyer, he will tell you how to properly draw up a power of attorney.

The procedure for divorce through the registry office without the presence of spouses in Ukraine

Registry offices do not marry or divorce by proxy. The divorce procedure in the registry office has two steps – first, a joint application is submitted, and a month later the spouses, in fact, are present at the actual dissolution of the marriage. Changes to the register of acts of civil status are made when they arrive at the appointed time, at the same time receiving certificates of divorce.

Thus, there is simply no mechanism for applying a power of attorney. And according to the law, only personal filing of an application by both spouses is allowed. The exception is the disappearance of one of the spouses, his imprisonment or the court’s declaration of death. In this case, the other of the spouses comes to the registry office and submits an application on the existence of the listed grounds.

But a situation where none of the spouses comes in person is simply impossible.

However, there is still a way out (if you do not take into account the above reasons). One of the spouses can avoid an unwanted visit to the registry office. To do this, the husband and wife must agree on who will deal with the divorce proceedings. Usually, this role is played by the initiator of the dissolution of the marriage.

Anyone who does not want to go to the registry office to submit an application must write it in advance and notarize it, along with his signature. Then the second person goes to the registry office with this application and provides the documents to the representatives.

The procedure for divorce of spouses without being present in court in Ukraine

In the process of divorce without personal presence – it is easier than in the registry office. If each of the spouses has filed a motion to consider the case in his absence, the court will do so. In this case, alimony will be assigned, according to the statement of claim of the man with whom the children will live after the divorce, the property will be divided in the proportion established by law (in half).

In order for the court to make a decision on divorce without participating in the hearing of the plaintiff or the defendant, one of the following conditions is necessary:

  • the presence of a clause in the statement of claim on the request to consider the case without the participation of the plaintiff;
  • a motion to consider the case in the absence of the plaintiff or the defendant, supported by documentary evidence of the impossibility of taking part in the hearing;
  • a petition to consider the case in the absence of the defendant, supported by the notarized consent of the defendant to divorce;
  • a power of attorney addressed to the representative of the plaintiff or defendant, which indicates that the latter has the right to represent the plaintiff or defendant during the court hearing;

You can find a description of the list of documents required for filing a claim for divorce by following the link in the articles “Statement of Claim for Divorce” and “Documents for Divorce”.

Making a decision on the divorce of spouses in absentia in Ukraine

Under certain conditions, the court may decide the issue of divorce in absentia. The set of conditions is as follows:

  1. the defendant was notified of the place and time of the hearing, while he did not appear and did not report the reasons for his absence;
  2. the plaintiff does not object to the decision being made in the absence of the defendant;

It is the right to decide the case in absentia, and not the duty of the court. He can simply reschedule the meeting and send a notice to the defendant.

If the court makes a decision in absentia, a copy of it is sent to the defendant by registered mail with notification no later than 3 days after the hearing. In the event that the defendant has a valid reason for failure to appear, he may ask for a review of the decision in absentia.

But only if it was the first or second failure to appear. The third failure to appear at the hearing is a reason for making a decision in absentia, regardless of the validity of the reason why the defendant did not come.

Can the court refuse a divorce without the presence of the spouses in Ukraine

Divorce can only be denied at the stage of accepting the claim, and only for one reason – if a person wants to part with a pregnant wife or the mother of a child who has not reached the same level. A pregnant wife or a woman who has recently given birth has the right to divorce, even if the person is against it.

In all other cases, if the claim is accepted, the divorce is only a matter of time. If the plaintiff did not appear, did not express in the application a request that the case be considered in his absence, the claim will be left without consideration. This does not mean that you were denied a divorce.

If the defendant does not appear, the court will postpone the hearing for the first time or provide a “time limit for reconciliation” (1-3 months). Suddenly, a new meeting will be scheduled only if the reason for failure to appear is valid. For the third time, the divorce will take place regardless of the appearance or non-appearance of the defendant.

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