Methods of divorce without the presence of both spouses

When is divorce possible without presence?

The standard rule for ending a marriage is for both spouses to participate.

In this case, the entire procedure takes the shortest possible time, since it allows you to determine the attitude towards the divorce of both parties.

Divorce without the participation of a husband or wife is provided for by family law, but the specifics of holding a court hearing without the presence of one of the parties are regulated by the code of civil procedure.

Conditions for the registry office

The Family Code of the Russian Federation allows for the following situations in which the presence of the second spouse is not mandatory when dissolving family relations in the registry office:

• The consent to divorce (application) is drawn up in a notarized application and sent to the territorial registry office;
• The second spouse is officially recognized by the court as missing or incompetent;
• The husband was sentenced to serve a sentence of imprisonment for a term of more than three years for the crime.

Accordingly, to confirm points 2 and 3, it is necessary to submit a certified and duly executed court decision (sentence).

To obtain a divorce through the registry office without presence, you must submit:

• Application for divorce (the form can be obtained from the registry office);
• Passport.
• Marriage certificate.
• A receipt for payment of the state duty in the amounts established by Art. 333.26 of the Tax Code of the Russian Federation: 350 rubles for divorce from a spouse recognized as missing or in prison;
• 650 rubles from each spouse by mutual agreement or by court decision.

What to do if it is not possible to come to the registry office

If the parties have no objections to the divorce, and there are no minor children in the family, the spouses can register the divorce without their presence.

The law allows two ways of such a divorce:

• issuing a notarized power of attorney to your representative and his subsequent appearance at the registry office to represent your interests;
• registration and transfer to the registry office of a notarized consent to divorce.

Is the presence of both spouses always required during a divorce?

Article on the topic: Divorce

The process of divorce in some cases may require the presence of two spouses, in others - only one of them, and in other situations, a divorce can be filed even without the presence of both partners. For example, submitting an application to the registry office for a mutually agreed divorce of spouses who do not have minor children can only be carried out in their joint presence.
Spouses must personally record their desire for divorce by signing the document. Delegating this action to any other person is unacceptable. In some cases, only one of the spouses can apply to the registry office, and he will receive a legal divorce certificate. Even in this case, the spouse cannot delegate his right to apply for divorce to any other person, i.e. he is obliged to independently appear at the registry office as an applicant. The Family Code (Clause 2, Article 19) contains a complete list of cases (this list is not subject to broad interpretation), allowing the termination of a marriage at the request of only one of the spouses. This is possible provided that the second spouse is declared insane, missing or sentenced to imprisonment for a term of more than three years by a court decision.

A completely different picture emerges when it comes to litigation. Here, the law (Civil Procedure Code - CPC) provides for legal variability in the behavior of both the plaintiff and the defendant. In most cases, the plaintiff and defendant are both present at the hearings, trying to assert their rights.

When the plaintiff does not want to meet with his other half even in the courtroom, he can document and ask the court to consider the case in his absence (clause 5 of Article 167 of the Code of Civil Procedure). Since both the defendant and the plaintiff (clause 3 of Article 38 of the Code of Civil Procedure) have equal rights (bear equal responsibilities) in civil proceedings, the defendant can also petition the court to consider the case materials without his presence. As a result, a situation may arise where neither the plaintiff nor the defendant appears in court legally, but their case will be considered and the court will make an appropriate decision on divorce.

The ability of the parties to the proceedings to involve representatives to protect their rights implies that a person (party to the proceedings) can be present at the court hearing together with his representative, or has the opportunity to withdraw himself from procedural problems, completely transferring his rights and responsibilities to the representative. Therefore, both the plaintiff and the defendant can use the services of a competent divorce lawyer. In this case, the lawyer, being a representative, will contribute to a more complete implementation of the procedural rights and obligations of a person who is legally poorly informed or not informed at all.

Sometimes the defendant's representative is appointed solely by court determination. For example, if a wife applies to the court with a claim for divorce, and her husband’s last place of residence is unknown, then a representative can be appointed to such a person by the court (Article 50 of the Code of Civil Procedure).

In addition, it is possible that the defendant, notified of the date of the court hearing, does not appear at the court hearing. (The plaintiff who seeks to dissolve the marriage is, as a rule, more punctual.) In this case, no sanctions can be applied to the defendant (for example, his arrest is not possible), but the court will be able to consider the case in his absence.

Summarizing all legal norms, we can conclude: the joint presence of spouses is mandatory only when filing an application for divorce (by mutual consent) to the registry office. During the trial, both spouses have the right to attend the hearings, but they are not required to do so. Court hearings can take place either in the presence of one of the spouses or in their absence (subject to appropriate petitions or representation of the interests of the parties by lawyers).

Other articles on the topic: Divorce

Conditions for trial

In a divorce lawsuit, the spouses act as plaintiff and defendant, as in any other dispute.

The Civil Procedure Code of the Russian Federation allows the following conditions for consideration of a case without the participation of the plaintiff or defendant:

• conducting business through a representative;
• sending a corresponding written statement to the court with a request to consider the case without one’s presence;
• failure of the defendant to appear at a court hearing without good reason.

Failure to appear in court without notifying it and without expressing your position significantly reduces the chances of having your interests taken into account when considering the case.

If the failure to appear was not due to valid reasons, then it will be almost impossible to challenge the decision.

Circumstances that may be recognized by the court as valid reasons for divorce in the absence of a spouse are:

• long-term absence from the place of residence (service in the Armed Forces, business trip, etc.);
• having a serious illness or being hospitalized;
• territorial distance from the location of the nearest civil registry office.

With the help of our lawyers, any of the spouses will be able to prepare and send to the court the specified statement, allowing the court to consider the case on the merits in the absence of one or both parties, and also taking into account your position on the case.

Do I need to appear in court?

The appearance of the divorce initiator at the court hearing is mandatory. Because if you fail to appear at the trial on a secondary summons, the judge has the right to leave the claim without consideration, unless the defendant demands its consideration.

You can do without personal presence:

• declare the participation of a representative in the case by issuing him a notarized power of attorney;
• send a petition indicating the valid reasons for the absence and with a request to consider the case without your participation.

The defendant is also subject to these conditions, however, his failure to appear without good reason is not grounds for postponing or dismissing the case.

Established practice and law allow the applicant to request consideration of the case in his absence directly in the statement of claim.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

However, consideration of a divorce case in the presence of controversial issues may take an unexpected turn in the absence of the plaintiff or defendant, and therefore it is better to take care of protecting your interests in advance.

Our experienced lawyers are not only ready to advise you free of charge and online right now, but also, if necessary, will protect your interests in the divorce process and resolve any conflict situation.

What to do if it is not possible to come to court?

In this case, it is enough to send an application to the court with a request to postpone the court hearing or with a request to consider the case in the absence of a party.

It is highly advisable to indicate in the request for adjournment:

• validity of the reason for non-appearance;
• the need to appear in court: explanations of the case, presentation of evidence, etc. – that is, those actions that a party to the case necessarily plans to do when appearing at a court hearing.

Postponement of a case is a right, but not an obligation of the court. The judge evaluates the evidence presented according to his inner conviction and may recognize the reasons for non-appearance as disrespectful.

In this case, the judge’s refusal to postpone the trial can be reflected in a later appeal against the decision.

Presence of a representative

Conducting any legal matter through a representative is the right of each party. To send a representative to the divorce court, he must be issued a notarized power of attorney.

A representative's power of attorney can be:

1. Full - with the right to sign the claim, refuse it, receive a certificate of divorce, etc.
2. Partial – to perform a separate legal action. For example, for representation in court with a limited range of powers.

At the registry office

According to the provisions of Art. 33 of the Law “On Civil Status Acts”, divorce through the registry office is allowed only in the presence of one of the spouses.

It is impossible to divorce through the registry office in absentia in the absence of both spouses, as is directly stated in Part 4 of this article. At least one of the spouses must arrive at the institution after a month has passed from the date of filing the divorce registration application.

A similar rule applies in case of divorce due to the circumstances specified in Art. 19 of the RF IC - the applicant will have to appear at the registry office.

Divorce: Civil Registry Office

Divorce becomes possible with the mutual intention of the spouses and the absence of common minor children. Article 19 of the Family Code (FC RF) lists all situations when a divorce can take place without the presence of a wife or husband. The code does not contain any mention of divorce without spouses. Part four of Article 33 of Federal Law No. 143-FZ of November 15, 1997 states: state registration of the termination of a marriage takes place with the mandatory presence of one spouse. When divorcing through the civil registry office, one of the divorcing couple must be personally present during the registration of the common intention. Otherwise, the divorce will not take place.

To minimize costs, spouses must act together.

• The application for divorce is sent by each spouse separately. The RF IC and Federal Law No. 143-FZ provide for the possibility of sending applications to the registry office through special service centers (MFC) or through the “Public Services” portal. There are MFC branches in all cities.
• If spouses cannot visit the MFC or do not have a personal electronic signature to send an electronic document, the application can be sent by regular mail. The signature must be certified by a notary.
• State registration occurs 30 days after the registry office receives an application for divorce. On the day specified by the court, the personal presence of one of the spouses is mandatory.

Spouses with Russian citizenship permanently residing in another state have the right to divorce through the Russian consulate. But it is necessary that both appear for the divorce and confirm their consent.

In a court

Divorce without the participation of both spouses in court is a very common practice and is not anything exceptional.

To obtain a divorce in court without the presence of both spouses, you must:

• Absence of disputes about children, which may require additional evidence or survey of the parties' opinions.
• The plaintiff’s request to consider the claim in his absence, filed simultaneously with the claim or after its acceptance.
• The defendant’s request to consider the case without his presence, indicating his position on the claim.

Important! The parties can also send their representative to the court by issuing an appropriate power of attorney.

The absence of the defendant from the divorce hearing without notifying the court can only delay the process. However, this fact will not be an obstacle to making a court decision, even if the defendant does not declare the possibility of considering the case without his participation.

In order for the court to make a decision on divorce without the participation of the plaintiff, it is necessary to file a petition that the reasons for the applicant’s absence are valid and ask to consider the case without one’s presence.

You can submit such a petition directly in the statement of claim itself, and the court will be required to notify you of the time and place of the hearing. If you change your mind, then nothing prohibits you from arriving in court for the trial on time.

Important! The failure of the plaintiff to appear in court without notice entails the postponement of the consideration of the case, and a repeated failure to appear will leave the application without consideration on the merits, unless the defendant insists on completing the case and making a decision on divorce.

Physical impossibility of presence

In case of physical impossibility to attend the meeting, it is necessary to submit to the court evidence of justification for failure to appear (travel certificate, certificate from the hospital, etc.).

It is advisable to inform the court of the impossibility of attendance in advance. To do this, the application and copies confirming the absence of documents are sent by fax or e-mail, since mail does not always work promptly.

Opting out

Refusal to participate in a divorce case may be expressed in writing. Such a statement is submitted by both the plaintiff and the defendant to the court before the start of the court hearing, and the plaintiff can also be stated in the divorce claim itself.

Failure to appear in court without specifying reasons is also considered as a refusal to participate and entails negative consequences for the evading party (leaving the claim without consideration for the applicant or issuing a default divorce judgment for the defendant).

Documents for divorce without presence

For divorce in court without presence, you must submit the following documents:

• statement of claim;
• copy of the passport;
• marriage certificate;
• receipt of payment of state duty for 600 rubles;
• application for consideration of the case without the participation of the plaintiff.

For a divorce without presence through the civil registry office, you must send an application certified by a notary.

It is better to clarify the nuances of drawing up an application in advance with the civil registry office at the place of divorce; download a sample application from the official website of the territorial civil registry office.

Statement of claim

In order to consider a divorce case in the absence of the defendant, the latter must send a corresponding petition.

If the plaintiff does not plan to appear in court, he can immediately or separately ask the court to resolve the case in his absence.

In any case, the main document that initiates the divorce mechanism will be the statement of claim.

Submission and writing rules

The procedure for filing a claim is regulated in Article 131 of the Code of Civil Procedure of the Russian Federation. Violation of any of the conditions specified there entails leaving the claim without progress or even returning without consideration.

This article establishes general provisions, but not a single normative act contains requirements for a claim specifically for divorce in absence. Divorce in this case is carried out in accordance with the general procedure.

Based on the analysis of the provisions of this article and established practice, the claim must indicate:

• Name and address of the court to which the application is being filed.
• Full name of the plaintiff, defendant, addresses of their official registration and actual residence.
• Circumstances of the dispute: date of marriage; information about the actual termination of the relationship, the reasons for the divorce.
• Information about children or their absence, other disputes, as well as the possibility of reconciliation between spouses.
• Justification for the need to consider the claim in the absence of the applicant.
• Demand for divorce and consideration of the case without the participation of the plaintiff.
• Date, list of attached documents, personal signature.

Important! If the absence of the defendant is assumed, then the claim only needs to indicate that his location or residence is unknown. Such a claim will no longer contain any other features.

The claim can be submitted to the court either in person or sent by registered mail. Lawyers advise using the second method, as it reduces the risk of possible obstacles from court officials.

If there are any deficiencies, the judge will be required to issue a formal ruling requiring their elimination.

The statement of claim is subject to a state duty of 600 rubles. You can learn more about the procedure for calculating and paying duties from this article.

Sample claim

A sample claim for divorce in the absence of a spouse in court is just one example of drawing up a document reflecting a request to consider the case in the absence of the applicant.

A petition for divorce in court without a plaintiff can be filed after the filing of the claim, or it can be drawn up on a separate page, detailing the reasons for the absence.

The law, however, does not establish mandatory reasons - the plaintiff has the right to request a hearing of the case without his participation and without indicating any significant reasons.

Notarized consent

Notarized consent is required to be submitted to the registry office if the spouse does not have the physical ability or desire to be personally present during this procedure.

Remember that a notary has no right to give legal advice on the contents of the document being certified; he only certifies the identity of the person indicated in the documents and signing it.

For notarization of a document, a state fee and technical expenses are paid. The final cost of completing this application with a notary varies depending on the region of residence.

When can the court refuse a divorce without presence?

The only option when the court can refuse a claim for divorce without presence is if the plaintiff fails to appear at the court hearing without good reason and does not submit a petition to the court for consideration in his absence.

In this case, the defendant should not insist on considering the claim on its merits.

Important! The defendant's disagreement, failure to appear, or active opposition to the termination of the marriage is not a reason to refuse a divorce without presence.

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

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

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

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

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

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

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

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

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Divorce terms without presence

The period for divorce without the presence of the parties through the registry office is similar to a standard divorce and is one month from the date of filing the documents.

The timing of the trial depends on the following circumstances:

• if one of the parties is absent from the hearing for good reasons, the court may repeatedly postpone the consideration of the case;
• If the court has declared the appearance of one or both parties mandatory, it may extend the period for consideration of the case.

According to the norms of the Code of Civil Procedure of the Russian Federation, the period for considering a divorce case is set at 1 month, but the court has the right to give the spouses time for reconciliation of up to 3 months.

In addition, the court decision will come into force one month from the date of its issuance and only on the condition that it is not appealed. All the nuances of compliance with procedural deadlines can be clarified during a free consultation with a lawyer on our portal.

Algorithm of actions in case of unilateral divorce

When initiating a unilateral divorce, you must perform several sequential steps:

• collect the necessary documents, they will be discussed in more detail in the next section;
• file a claim with the courts. It is legally determined that divorce proceedings can be handled by district courts or magistrates located at the place of residence of the plaintiff or defendant;
• come to the court hearing on the date specified by the judge (no earlier than a month after filing the application); get a divorce with a positive court decision. The decision comes into force 1 month after it is made;
• draw up a divorce certificate at the registry office and, if necessary, change documents or make adjustments to existing ones, for example, a work book (read about how to obtain a divorce certificate here https://divorceinfo.ru/3252-poryadok-vydachi- svidetelstva-o-razvode-cherez-sud-zags)

If there is a child in the divorcing family, then the court has the right to postpone the final decision for 3 months in order to provide the spouses with time for reconciliation.

Divorce proceedings for childless couples, or spouses with adult children, even in the absence of the defendant’s consent to divorce, can be carried out in a magistrate’s court. But only on the condition that the value of the divided property does not exceed 50,000 rubles for each of the spouses.

The decision period is about 1 month. If the verdict of the magistrate does not satisfy one of the spouses, then he has the right to file an appeal to the district court within 1 month to protest the decision. The appeal takes about 2 months. In the absence of an application for review of the case, the decision comes into force after 1 month.

Absentee ruling

If the defendant fails to appear in court, having been notified of the date of the court hearing and has not asked for consideration in absence or has not indicated valid reasons for his failure to appear, the court may make a decision in absentia.

The Code of Civil Procedure of the Russian Federation allows for the possibility of canceling a court decision in absentia at the request of the defendant.

If it is filed with the court within 7 days from the receipt of a copy of the decision and if it indicates the grounds that could influence the court’s adoption of this decision.

The petition to cancel the default judgment is considered at the court hearing and if it is satisfied, the hearing of the case begins again.