Refusal to divorce

Refusal to divorce

The current legislation of Ukraine provides for cases when a marriage that has taken place at the stage of divorce may not be dissolved. First of all, this is associated with the expression of the will of the spouses who no longer wish to carry out this procedure, or as a result of the refusal of the authorized body.

The refusal procedure in any of these cases is strictly regulated. It is necessary to note that a divorced marriage may be subject to restoration on the grounds specified in the Family Code of Ukraine.

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Candidate of Legal Sciences
Welcome to the website rozirvannya-shlyubu.com.ua! In the article “Refusal to dissolve a marriage,” I will talk about the grounds for refusing a divorce, refusing an application for divorce, refusing a claim for divorce, renewing a marriage if one of the spouses refuses to get a divorce. Read the article to the end and contact our law firm for legal assistance in family matters.

Grounds for refusal of divorce

In accordance with the Family Code of Ukraine, divorce can be accomplished with the help of civil registry offices or in court. In this regard, the procedure and grounds for its registration differ and are regulated, in addition to the norms of family legislation of Ukraine, in the first case by the Civil Registration Rules, in the second by the Civil Procedure Code of Ukraine.

The most common type of termination of a marriage is its dissolution with the help of the registry office. The basis for its implementation are:

  • joint consent of the spouses (in the absence of minor children);
  • at the request of one of the spouses, when the second one recognized by the court is missing or incapacitated.

It would seem that everything is quite simple, however, in a number of cases the civil registry office may refuse applicants to register a divorce. The registry office identifies among the grounds for such a refusal the presence of certain contradictions, as well as cases when the submitted documents do not meet the established requirements.

Example

Situation regarding divorce by mutual consent: one of the spouses applied to the registry office for its dissolution. According to the person, it became clear that his wife agreed to this, but she herself did not appear and did not document her will in any way. In this regard, the registering authority has the right to refuse to register this fact, since there are violations of the requirements of the Family Code of Ukraine (when dissolving a marriage, the presence of both parties in the civil registry office is required; divorce on the basis of a power of attorney is not allowed).

Another basis for refusal to carry out state registration can be defined as the case when one of the spouses is declared legally incompetent, and the second man applies to the registering authority with an application for divorce before the specified court decision enters into legal force.

It is important to note that the interested person, independently or through his representative, may demand an explanation of the reasons for such a refusal, and the head of the registration authority is obliged to give such an explanation in writing to such person upon his request.

In any case, the applicant retains the right to appeal these actions of the registration authority to a higher authority or to court.

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Refusal of an application for divorce

Considering the fact that the body registering the divorce process always implies the presence of a statement expressing the will of both spouses, and in exceptional cases of one of them, sometimes the decision of the interested parties can be changed.

The current family legislation of Ukraine, as well as the Civil Registration Rules, do not sufficiently reflect the entire procedure for the possibility of abandoning the divorce process, as a result of which some misunderstandings arise in everyday life on the part of those interested in this.

First of all, here it is necessary to note the period established by the legislation of Ukraine after filing an application for divorce and issuing the corresponding certificate. Its duration is one month. This is due to the fact that the applicant reconsiders his decision to proceed with the divorce.

In accordance with the norms of the current legislation of Ukraine, divorce when filing an application jointly is carried out in the presence of both spouses, and only in the presence of both. However, at any time before the expiration of the month, as well as on the appointed date, a person can withdraw his application, regardless of whether it is a husband or a wife. The Laws of Ukraine do not provide any obstacles for this.

It should be noted that refunds for unprovided paid services are carried out upon a written application of the person on the basis of the payment document presented by the applicant (receipt, payment order, etc.)

Refusal of the divorce claim

The termination of a marriage through its dissolution is carried out, as mentioned earlier, not only in the registry office, but also in court. The basis for this may be the presence of common minor children, the lack of consent of one of the spouses, as well as his evasion of divorce in the registry office.

The procedure for carrying out such a divorce process is somewhat different from that previously discussed, since it is regulated not only by the norms of the Family Code of Ukraine, but also by the Civil Procedure Code of Ukraine. In particular, divorce in court is carried out according to the rules of claim proceedings.

Taking into account the above, the parties (interested persons) retain all procedural rights and obligations provided for by the Civil Procedure Code of Ukraine. It is important to note that the plaintiff has the right to change the claims, as well as to waive them.

However, to exercise this right, the following conditions must be met:

  • Such refusal must not contradict or violate the rights and legitimate interests of other persons.
  • It must be carried out before the end of the consideration of the case on the merits, that is, before a decision is made.

To determine the time limits for waiving a claim, it is necessary to remember that after filing and accepting it for proceedings, the court may set a time for reconciliation of the parties. The divorce process itself can last from one to six months. It is at this moment that the plaintiff has the opportunity to exercise his right to refuse the stated claims.

Another important fact is that the general consequences for abandoning a claim are specified in the Civil Procedure Code of Ukraine. This means that the plaintiff retains the right to re-apply to the court for the dissolution of the marriage with the same person, but the factual circumstances will be somewhat different in the new statement of claim, since the legal relationship continues.

If the claim is abandoned, the judge makes a decision to close the proceedings.

Restoring a marriage if one of the spouses refuses to divorce

The family legislation of Ukraine provides for a case when an already dissolved marriage can be renewed. In this case, we are talking about a situation where one of the spouses was recognized as missing or declared dead in accordance with the procedure established by law.

First of all, the following should be noted here:

  • а citizen is declared dead if there is no information about his stay for three years at his place of residence;
  • declaring a person missing has the same definition, only the period of absence of such information is one year.

In any of these cases, this procedure is carried out only in court. Considering the above, it is necessary to pay attention to such a result of this procedure as dissolution or termination of marriage. The date of its termination will be the date of entry into force of the court decision in this circumstance or the date expressly indicated in it.

However, the law allows for a situation where a person was recognized as missing or dead, and after some period of time he appeared. What happens in this case?

In accordance with the Civil Code of Ukraine, the court decision in this case is canceled. This means that an terminated marriage can be restored, but only when both parties consent to this.

Another scenario in this case may also be that the other spouse has already remarried. In this case, the second marriage is not annulled and the previous one cannot be restored.

Conclusion

In conclusion, considering the topic of refusal to dissolve a marriage, it is necessary to once again dwell on such points as:

Either spouse retains the right to change the decision to terminate the marriage, regardless of the body in which this procedure is carried out.

The civil registry office has the right to refuse registration actions strictly on the grounds specified in the law.

A terminated marriage may be subject to restoration in cases where a man declared dead or missing in court appears.

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