The procedure for terminating officially registered relationships is determined by the Family Code. The presence of children and material disputes are grounds for appealing to the court.
Spouses do not always have the opportunity to attend court hearings on the day they are held. In some cases, there is outright sabotage on the part of one of the participants in the process. In this case, the “truant” may have a question: what will happen if you don’t come to court for a divorce?
Divorce proceedings
Statistics show: approximately half of the marriages entered into in the country break up over time. Find out more about the reasons. This trend, according to experts, will continue to persist in the future.
Family Law enshrines the right of each party to a relationship to initiate its breakup (with the exception of the presence of a newborn child).
Termination of relations, in accordance with the eighteenth article of the Insurance Code, may occur in one of the following institutions:
- Registry office;
- judicial authority.
Peculiarities! The first option is suitable only for those couples who have not had children and agree on the need for the procedure.
You should go to court in all other cases. That is, the court considers such cases if:
- While living together, the couple had children.
- There are property disputes between citizens.
- One of the spouses does not want to end the relationship.
Some citizens mistakenly believe that failure to appear in court for a divorce will lead to the preservation of the relationship and, thus, strive to preserve the disintegrating family. You need to figure out what will happen if one of the spouses does not appear in court for a divorce.
Consequences of failure to appear during the proceedings
In accordance with current legislation, the judicial process provides for the presence of at least two parties to the case: the plaintiff and the defendant.
Court hearings must take place in their presence.
Each party has the right to argue and defend its position, as well as provide evidence to the judge to decide the case in its favor. In this regard, the question arises: what will happen if you do not appear in court for a divorce?
Is there any punishment?
To figure out what will happen if the spouse does not appear in court for divorce, you need to turn to the legislation.
In accordance with it, in civil cases no penalties are provided for the failure to appear of persons who are parties to the case (that is, the plaintiff and the defendant). But such a sanction can be applied in relation to:
- translator;
- witness;
- expert;
- specialist
Important! If one of the persons listed above was supposed to take part in the court hearing, his absence will be punishable. The form of punishment is a monetary fine.
But it is necessary to pay attention to Article 99 of the Code of Civil Procedure of the Russian Federation. In accordance with it, the judge, if the spouse does not appear in court, can recover compensation from him for loss of time in favor of the other party to the process. The amount of this compensation will depend on the specific circumstances of the case.
Penalty for failure to appear for the plaintiff
However, the absence of a specific penalty does not mean that there will be no consequences for the person who misses meetings. This is especially true for plaintiffs.
If the husband does not appear in court for a divorce, and does not provide valid reasons, or does not file a petition to postpone the consideration of the case, his behavior may be regarded as disrespect for the judge.
In this case, the latter has the right to consider the case without his presence. Accordingly, the plaintiff will not have the opportunity to defend his position.
This applies to both men and women. You should also take into account the fact that failure to appear at meetings may reduce the chance of a review of the case by higher authorities.
For the defendant
For example, if during the proceedings issues related to common children are resolved, the judge has the right to demand the forced delivery of the truant to the meeting.
In this case, one more important nuance should also be considered. If the case is considered without the defendant (and this is possible in the absence of a valid reason for failure to appear), he will not be able to defend his position.
Accordingly, the judge will be guided by the arguments of only one side. If the defendant does not appear at the court hearing, the judge will most likely rule against him.
Litigation in the absence of one of the parties
The absence of one of the parties to the proceedings is not grounds for termination of legal proceedings. First of all, the judge will be required to find out whether the reason for failure to appear is valid.
To do this, you just need to know:
- whether the party who failed to appear was given notice of the proceedings;
- whether she filed a petition to postpone the consideration.
If there was a notice and the truant did not file a petition, the judge has the right to consider the case without him.
However, in practice, most often the hearing is postponed to another date. However, in this case there is one caveat.
The legislation provides for no more than two adjournments of meetings.
When will a couple be divorced if the husband has not come to court for divorce for the first time? At the third meeting, the judge will make a decision, regardless of whether both parties are present or not.
Reference! If both citizens do not appear at the meeting, the proceedings are terminated.
Conclusion
Thus, the failure of any of the parties to the trial to appear at the court hearing is not grounds for dismissal of the case (this is only possible if both citizens ignored the process). For such conduct, a person may be punished by paying compensation to the other party to the case.
During the third court hearing, the marriage union will be dissolved, even in the absence of one of the participants in the proceedings. It should be taken into account that failure to appear may negatively affect the judge’s decision for the party that ignored the summons.
If the defendant does not appear in court for a divorce: what will happen if he does not appear in court for a divorce
Divorce proceedings between spouses begin when there is no agreement between them and administrative proceedings are not possible. The Judicial Code of the Russian Federation determines the reasons and conditions for divorce. The consideration of such a case relates to civil proceedings and is regulated by Art. 8 IC RF.
Article 167 of the Code of Civil Procedure of the Russian Federation specifies that if spouses are unable to attend the consideration of the case, they are obliged to notify the participants in the process about this. The court notifies the participants of the meeting about the time and place of the meeting on the case, by inviting them in the form of a summons. Article 113 provides for several types of communication with participants in the case, but all of them record the fact of a summons to court.
One of the spouses did not come
Failure to appear at a court hearing may be due to a valid reason or due to the defendant’s unwillingness to annul the marriage. A valid reason for both parties must be recorded by writing a corresponding statement, which must be sent to the court and to the opponent in the divorce proceedings.
If the plaintiff or defendant did not exercise their right to be present at the court hearing for a good reason, then the court has the right:
- Postpone trial.
- Hold a meeting and register the divorce , if there is a request to consider the case in the absence of one of the parties.
What happens if you don’t come to the hearing? There is no established punishment by law for failure to appear at court hearings in divorce proceedings. The plaintiff or defendant does not face any fines for absence.
Important! Article 99 of the Code of Civil Procedure of the Russian Federation provides for the possibility of imposing a fine for lost time if any obstacle was created to the correct consideration and conduct of the trial.
The defendant, having received notice of the court hearing, did not appear, and the notification to the judge about the absence was not recorded; the judge can make a decision to terminate the union.
The husband is not
If a spouse does not appear at the divorce proceedings, regardless of whether he is a plaintiff or a defendant, the obligation to notify the participants of the meeting about his absence is mandatory for everyone. The reason for failure to appear and proposals regarding further actions of the court must be indicated.
The spouse can write in writing:
- Request to consider the case in his absence.
- Request to adjourn the meeting.
Important! The judge has the right to take measures to preserve the family and postpone the hearing.
If a person fails to appear at the hearing without a good reason and without prior notification of the interested parties and the court, a decision may be made in his absence.
There is no defendant
If the defendant does not appear at the consideration of the plaintiff’s application, this rather confirms the fact of his reluctance to annul the marriage.
Important! If there are controversial issues regarding the termination of the marriage, the plaintiff must carefully monitor the development of the process and regularly visit the court office in order to monitor the scheduled hearings on the process.
The most common controversial issues include:
- Minor children.
- Joint business .
- Joint property , etc.
In any case, no matter what actions the defendant takes, the marriage union will be dissolved , since even the court cannot force someone to be married. If there is a systematic absence from meetings on this issue, the court will make a decision in favor of the plaintiff.
Conclusion
One of the spouses, the defendant, may want to save the marriage, but also simply ruin the life of the other. If the plaintiff insists, the application will be granted by the court, sooner or later. Active or passive actions of the defendant, without reconciliation, will not lead to a positive result, without the desire of the plaintiff.
Judges give time for possible reconciliation when, when considering a specific application of a particular married couple, they see the need for it. The court has the right to decide on providing the spouses with the opportunity to save the family.
Failure to appear at the hearing only delays the final decision, but does not change it.
What happens if the plaintiff or defendant does not appear in court for divorce?
There are quite a few reasons why citizens do not appear at court hearings. Among them there may be both completely valid reasons and those related to the deliberate delay of the trial. We will find out what will happen if the defendant does not appear in court for divorce, whether this will become an obstacle to the process, or whether divorce is possible in the absence of one of the parties.
Reasons for no-show
Spouses who have minor children or cannot agree on the procedure for dividing property are forced to divorce through the courts. However, sometimes a husband or wife “boycotts” the hearings, which results in failure to appear at the hearing. Explanations for such behavior can be both logical and malicious (contributing to the deliberate delay of the process).
The list of reasons considered valid is not regulated by law. In law enforcement practice, reasons that meet the following criteria will be convincing:
- documented;
- clearly prove the impossibility of being in court at a particular point in time.
The most common compelling reasons are:
- illness - proven by a sick leave certificate or a certificate from a medical institution;
- inability to arrive at your destination on time - temporary interruption of transport links due to natural disasters (confirmed by a certificate from the transport company);
- man-made accidents, catastrophes - recorded by the Ministry of Emergency Situations;
- the absence of a summons or its receipt on the day of the meeting is confirmed by the date stamped on the summons or postal notification of delivery;
- departure to another region is proven by a business trip order, a certificate of illness of a close relative, a birth/death certificate, etc.
If a citizen cannot attend a court hearing for a good reason, for example, due to illness, he is obliged to inform the court about this in writing. Upon subsequent appearance, the reason for absence must be confirmed with documents.
Sanctions for failure to appear at the trial are determined by the judge. If you did not have time to prepare supporting documents in a timely manner, you need to draw up a petition to request the necessary documents and then attach them to the case. Unjustified absence from a meeting entails procedural liability.
Are there sanctions for failure to appear in court?
In case of malicious evasion from giving evidence, the perpetrators may be subjected to forced transportation to the courtroom, as well as a fine of 1,000 rubles. for contempt of court, expressed in failure to appear at a hearing. Similar sanctions apply to other participants in the process who are required to testify in court (experts, translators, witnesses) but who fail to appear.
Options for notifying the parties
The court must notify the participants in the process of the date and place of its holding (Article 113 of the Code of Civil Procedure of the Russian Federation). The summons is sent to the parties in one of the following ways:
- by mail (registered mail with acknowledgment of delivery);
- by telegram;
- telephone message;
- by fax;
- in another way that allows recording the date of service of the summons.
The document is sent in advance so that the parties have time to reconsider their plans, freeing up time for a visit to court. Receiving a summons on the day of the hearing or the day before is a valid reason for filing a motion to reschedule the hearing.
Is divorce possible in the absence of one of the spouses?
In addition, if the plaintiff and defendant take care in advance that the divorce takes place in their absence, they will not be able to attend the court at all. Drawing up a power of attorney to represent your interests will allow you to resolve the issue quickly and painlessly for both parties. In addition to the notarized power of attorney, it is necessary to provide the court with written consent to divorce and a petition to consider the claim in the absence of the parties (Article 167 of the Code of Civil Procedure of the Russian Federation).
If one of the spouses believes that his participation in the process is important, but for some reason cannot come to court, he has the right to petition to postpone the date of the hearing.
What to do if the plaintiff does not come to court?
If the applicant fails to appear for the first time, the court hearing will be postponed to another date. The citizen will be notified of this by summons. If the plaintiff skips the hearing a second time, the judge has the right not to consider the case. In this case, the defendant can insist on considering the claim by asking the court for a divorce.
What if there is no defendant at the meeting?
The defendant's absence from court usually indicates his reluctance to get a divorce. However, such actions deprive a citizen of the opportunity to defend his position, petition for reconciliation with the offended spouse, and in the case of division of property, to present documents and evidence that would allow him to make a more favorable decision.
In case of absence at the first meeting, the judge will ask whether the citizen has a valid reason for failure to appear. If the answer is positive, he will set a new date for consideration of the case.
If the defendant does not come to the second hearing, it will be rescheduled again. However, “pulling on” indefinitely will not work, since each hearing of the case inevitably brings the parties closer to a judicial verdict. If the defendant misses the third meeting, the judge makes a decision on divorce in absentia.
If a citizen has taken all measures to ensure that legal proceedings proceed as usual (issued a power of attorney to his representative, formalized consent to consider the case without him), the meeting will not be postponed. The judge has the right to dissolve the marriage in the absence of the defendant.
Methods to speed up the consideration of a claim
If the opposite party deliberately delays the divorce process, you should find out the reason for such actions. There are three possible options:
- ignorance that divorce proceedings have been initiated;
- significant reasons for absence;
- reluctance to go to court.
Depending on the reason for the delay, methods for resolving the issue are selected.
Failure to receive notice of the date and time of the meeting
Judicial authorities often make mistakes when sending subpoenas, for example, sending them to a different address or not delivering letters to the post office in a timely manner. In addition, correspondence may be delayed in transit or even lost due to the fault of the postal service.
To exclude failure to appear due to ignorance of the date of the court hearing, you can personally serve the summons on the defendant (Article 115 of the Code of Civil Procedure of the Russian Federation does not prohibit such actions), transfer it through the employer, or send a telegram to the addressee notifying the date and place of the hearing at the place of residence.
What happens if the judge does not have documentary evidence that the defendant was properly notified of the meeting? If there are no supporting documents in the case (telephonograms, notification of delivery of a registered letter, a summons with a mark), the decision made by the court will be invalid.
Unexpected situations
Unforeseen situations cannot be excluded, but a busy defendant can obtain consent to divorce and a petition to consider the case in his absence.
Deliberate evasion of participation in a court hearing
If you deliberately fail to appear in court, it is recommended to be patient. If the defendant does not come to the first hearing, the trial will be postponed for a month.
On the second, he can ask for a three-month period for reconciliation, on the third, he can petition to postpone the deadline, on the fourth, he can again fail to appear in court for a good reason.
A reasonable solution: try to come to an agreement with your spouse on a divorce, resolving all controversial issues due to which the consideration of the case is constantly postponed.
In addition, the failure of the defendant, who was notified in a timely manner of the place and time of consideration of the claim, allows the commencement of proceedings in absentia (Article 233 of the Code of Civil Procedure of the Russian Federation). In this case, it is necessary to obtain the appropriate consent of the plaintiff.
In divorce cases, it is paramount to document that the parties have been properly notified of where and when the hearing will take place. The appearance in court or the absence of the plaintiff or his opponent are not the main reasons for refusal to conduct the process.
Divorce through the registry office
Administrative divorce requires the presence of a husband and wife. Divorce in the registry office in the absence of the second spouse is possible only if he is declared dead, incompetent, missing, or he is serving a long sentence (more than 3 years).
The divorce will take place if the applicant writes a corresponding statement in which he indicates the reason for which he requires a unilateral dissolution of the marriage, and also collects all the documents giving him the right to apply for a divorce without notifying the second spouse.
What happens if the plaintiff or defendant does not appear in court for divorce?
If the defendant does not appear in court for a divorce, the rules of trial provided for in Ch. 22 Code of Civil Procedure of the Russian Federation. The divorce decree will still take place, unless the defendant warns the court that the reason for failure to appear is valid.
The proceedings are being conducted according to the rules of absentee proceedings. The plaintiff's opinion is taken into account.
If he agrees to the proceedings without the presence of the defendant, then the magistrate or district judge (depending on the specifics of the claims) makes a determination on the need to study the case in absentia. If the plaintiff is against this, then the court must adjourn the case and send the defendant a second notice to appear.
Legal nuances
One of the spouses may not agree to the divorce. This manifests itself in avoidance of court proceedings, including cases when it is necessary to determine the place of residence of a common child and collect alimony.
The initiator of the divorce has the right to file a statement of claim in the manner prescribed by the Code of Civil Procedure of the Russian Federation - Art. 131-132. The claim must contain a demand for the need to end the marriage, as well as determine the place of residence of common minor children, and collect alimony from them and from the disabled spouse.
The defendant may not recognize the claim, not send reasoned objections to it, and completely avoid appearing in court. The judge is not obliged to take measures to actually force the defendant to participate in the case (i.e., he cannot initiate the detention and bringing the evading spouse to the hearing).
The powers of the court are limited to proper notification of the defendant spouse about the upcoming court hearing - a summons, which is sent to the last known place of residence of the defendant (notification can also be sent by SMS messages or email). The statement of claim must indicate the name of the court, information about the parties to the proceedings and third parties. You should indicate the circumstances of the marriage (date, time, place), information about common minor children.
The statement of claim contains facts confirming the impossibility of living together and preserving the family.
The plaintiff should attach information confirming his procedural position: a copy of the passport, documents on the birth of the child, copies of documents confirming the financial situation of the plaintiff - necessary for collecting alimony. The claim must be signed by the applicant or his legal representative.
The application must be submitted at the place of residence of the defendant or the place of marriage registration. A separate copy of the documents should be prepared for each party to the litigation. After accepting the claim for consideration, the court notifies the defendant of the date for consideration of the dispute on the merits. Delivery of a summons (notice) against signature is considered proper notification of the party.
If the defendant fails to appear at the trial, the judge, with the consent of the plaintiff, issues a ruling to consider the case in absentia.
The court hearing is held with the participation of the plaintiff, his representative, hearing the parties’ explanations, and studying the evidence presented. The court has the right to postpone the hearing of the case for a period of no more than three months. It is reserved by the Family Code (Article 22) for the reconciliation of spouses. If reconciliation efforts are unsuccessful, the judge must dissolve the marriage.
The failure of the defendant to appear at court hearings for unexcusable reasons does not suspend the case. Court:
- makes a decision on divorce, which indicates the date of termination of the marriage;
- resolves other controversial issues - places of residence of common children, collection of alimony for them and for a disabled spouse who needs financial support;
- distributes costs between the parties.
The court sends a copy of the act to the defendant within 3 days from the date of adoption of the judicial act. The defendant has seven days to file an application with the court to vacate the default judgment. The main condition is the valid reasons for failure to appear in court and the ability to prove that the defendant did not have the opportunity to warn the court about his absence at the hearing.
The application is submitted at the place where the decision was made. It states:
- address and level of the court;
- information about the applicant;
- information about the opposite party;
- information about valid reasons for failure to appear in court, as well as information that confirms the impossibility of notifying the court of one’s absence.
The application must be signed by the initiator of the cancellation of the default court decision or his representative. It is not subject to state duty. It must be accompanied by documents confirming the reasonableness of the defendant’s failure to appear in court.
An application to cancel a default judgment is examined by the court after notifying the parties. Their absence does not prevent consideration of the document on its merits. The court refuses to satisfy the application or cancels the default judgment and begins the proceedings again. The subsequent failure of the defendant to appear in court excludes the possibility of canceling a new default judgment.
In any case, if one of the spouses insists on dissolving the officially registered marriage in court, then after three months the divorce will take place, regardless of the defendant’s appearance in court (except for cases where it is recognized as valid). A court decision in absentia can be appealed within a month after its adoption or within a month after the application for its cancellation is rejected.
Avoidance of court proceedings does not prevent the progress of the case, unless the absence of the defendant is proven justifiable. The case may be considered in the absence of the defendant, regardless of his consent to the claim. The decision on absentee proceedings may be announced at the first meeting. A similar determination is possible if it is necessary to divide the common property of a husband and wife.
Failure to appear at a court hearing does not relieve you from the obligation to follow the lawful orders of the bailiff. The Federal Law “On Enforcement Proceedings” allows for foreclosure on the debtor’s income and property. This can be done regardless of the wishes of the owner of valuable things, including shared property. There is a list of income and property that cannot be foreclosed on:
- single dwelling;
- social benefits;
- compensation for business trips;
- wear of the working tool.
Failure to appear in court due to unknown absence also does not relieve one from the obligation to proceed to trial. A claim can be filed against the trustee of the property - for example, if there is a need for a general division of jointly acquired material assets.
At the same time, the spouse of a missing citizen can apply for a survivor’s pension for the child.
If the payer appears, the amounts paid as a pension to the child will be recovered from the parent who evaded fulfilling his alimony obligations.
Failure to appear for a divorce after a court decision may be expressed in the absence of the spouse at the registry office, which is necessary for state registration of the divorce. The plaintiff spouse should not be interested in such a fact, since after the court decision comes into force, he has the right to apply to the registry office and receive a unilateral divorce certificate.
The absence of a spouse in court during a divorce, including when the dispute is related to the division of property, also does not prevent the court from making a unilateral decision.
It is in the interests of the defendant spouse to overcome a possible negative attitude towards the situation and come to the court hearing, and, if necessary, to submit reasoned objections to the plaintiff’s demands.
Separately, the interests of common minor children should be taken into account, who should not suffer from misunderstandings and disagreements between parents. In controversial situations, it is recommended to seek the support of a competent lawyer.
Last changes
In 2023, there are no significant changes in legislation on this issue.
Our experts monitor all changes in legislation to provide you with reliable information.
If the defendant does not appear in court for a divorce, what are the consequences for him and when will he be divorced?
If the defendant, notified of the court hearing does not appear in court for the divorce without providing valid reasons for his non-attendance, then at the third meeting the divorce will be carried out without him. The situation changes when a party requests a delay in the consideration of the case due to the fact that it did not have an objective opportunity to take part in the court hearing.
The court can divorce spouses in one hearing if both the husband and wife agree to the divorce, and there are no aggravating factors (for example, division of property, determination of the future address of children, establishment of alimony payments), and the parties themselves express a clear desire to separate.
If one of the spouses expresses a clear disagreement to divorce, even if it is expressed in a silent “no show” during the court hearing, then the divorce will drag on - but this will not completely cancel it.
The preparatory stage for consideration of the case consists of notifying the participants of the meeting, including the plaintiff, defendant and third parties. The document must be sent in advance so that the parties have time to prepare for the process. If the notice was sent 1-2 days before the meeting, then this is a forgivable reason for requesting a change in the date of its holding.
You can notify the defendant in several ways - by sending a registered letter, SMS message, telegram. If the notice was sent taking into account all legal requirements and rules, then it is considered that this participant in the trial has received it.
The agenda contains information about the date of the meeting and the address.
Spouses will be divorced even if the defendant does not appear in court. His non-arrival will only delay the divorce, but will not prevent it.
Thus, if the defendant does not provide excusable explanations for his failure to appear in the courtroom, then the court will separate the parties for a third hearing of the case only with the participation of the plaintiff. However, the requirement to properly notify the person concerned must be met.
If the defendant filed a petition asking to suspend the divorce and provided excusable reasons for his decision, then the court is highly likely to meet him halfway.
In this case, the court will not make a decision, the hearing will be postponed, and the plaintiff, defendant and other parties to the case will be sent a copy of the shift in the date of the court hearing and repeated summonses.
However, another problem arises - the defendant may not know that his wife has filed for divorce, especially if she does not simultaneously file claims for division of property, collection of alimony payments, if there is no dispute about the children (for example, they have already reached the age of majority) . Thus, a woman can collect subpoenas from the mail in advance or even live separately from her husband.
It is almost impossible to find out that the wife secretly filed a divorce suit in court. Residents of Moscow can use the website http://www.mos-sud.ru - using the link “Court areas of justices of the peace”, you need to find your site and view current court proceedings in civil cases. But this method requires time.
You should not assume that court staff will provide all the necessary information over the phone, since in this case the caller will not be able to confirm his or her identity. When visiting the court directly, all the required information will be provided, but “visiting” this institution on a regular basis is problematic.
- If the divorce was carried out “in absentia”, about which the husband had no idea, then he can hire a lawyer to appeal the court decision and protect his interests.
- Another situation arises when the plaintiff himself, on whose initiative the divorce is planned, does not come to the meeting.
- If the plaintiff does not appear at the initial hearing without providing an excusable explanation for his non-attendance, or a petition to shift the date/consider the case without him, then the court will shift the date for the trial of the circumstances of the divorce.
If the plaintiff, just like the first time, “ignores” the court hearing, then his claim will be returned without consideration. The judge rules that the case is not going to be heard.
However, if the plaintiff had no opportunity to inform the court about the excusable reasons for his non-arrival, then he has the right to appeal the decision not to consider.
Attention! If the plaintiff does not arrive, but the defendant appears at the hearing, then he has the right to insist that the case be considered without the presence of the initiator of the proceedings.
In such situations, the courts either postpone consideration of the case or leave the claim without consideration.
If both parties understand that they will not be able to attend the court hearing, then they should submit a request in advance to consider the case on a different date or without them.
When the plaintiff or defendant fails to arrive in court at the appointed time, no fines will be imposed on them. However, punishment awaits professional participants in the trial - specialists, experts, witnesses, translators, guardianship officials and other people. A certain amount of money will be collected from these people.
Unreasonable failure to attend a meeting is regarded by the judge as disrespect for oneself. Such an offense will prevent you from protecting your interests in higher authorities later, if necessary.
Divorce solely on one’s own personal initiative through the registry office is permissible if the spouse is serving a prison sentence of at least 3 years, has disappeared without news, or has been deprived of legal capacity. In all other cases, the spouse’s reluctance to divorce requires the case to be examined in court.
If both spouses submitted an application for divorce to the registry office (this is allowed if they do not have property disputes and common minor children) and did not come again at the appointed time, then this indicates the following: the parties changed their minds about getting a divorce, as a result of which their application is cancelled.
So, if the defendant, notified of the upcoming court hearing, does not come to court on the established date, then at the third hearing the divorce will be carried out without him. In the case where the defendant did not know that the plaintiff had sent such a statement to the court, he has the right to hire a lawyer and then appeal the divorce decree.
If only the defendant came to the hearing, and the party that initiated the hearing of the case is absent, then he has the right to demand that the hearing be held without the plaintiff. In this case, the plaintiff must provide evidence that the reasons for missing the meeting were truly excusable.
If neither party can be present in the courtroom on the set date, then they must either request that the time for the consideration of the case be moved up, or ask for the divorce to be carried out without them, in absentia.
What to do if the husband does not come to court for divorce?
Hello! I'm divorcing my husband. I am the initiator; my husband is categorically against dissolving the marriage. There was already a preliminary first court hearing, to which the husband did not come. The judge postponed the meeting, but he is unlikely to come next time.
Will my husband and I be divorced if he, as the defendant, does not appear in court for divorce?
In the event that the spouses do not agree on the need to dissolve the marriage, the divorce process is carried out in court. In practice, situations in which one of the parties does not agree to divorce are the majority.
It is impossible to force a person against his will to give his consent to divorce, however, the judicial procedure presupposes the possibility of resolving a dispute in such circumstances.
It should be understood that the lack of consent of the husband (wife) cannot significantly affect the outcome of the case. If a divorce proceeding is initiated, it will be resolved by the court on its merits, regardless of emotional grounds.
Legislative regulation of the procedure
Divorce is carried out by the court on the basis of the applicant’s requirements set out in the statement of claim, in strict accordance with the norms of the Civil Procedure Code (Civil Procedure Code of the Russian Federation).
According to these requirements, during the claim proceedings, the judge’s duty is to notify all parties involved in the case about the time and place at which the hearing will take place by sending a judicial notice (summons).
Article 113 of the Code stipulates that the parties are notified by sending to their addresses:
- registered letter with return receipt requested;
- summons with the same notice;
- telegrams or telephone messages;
- other means of communication through which it is possible to record the fact that a citizen has been summoned to court.
Since notifying the plaintiff and defendant about the date on which the hearing will take place is the responsibility of the court, their appearance or failure to appear at the trial, as well as the presence (or absence) of valid reasons for failure to appear, is always reflected in the corresponding minutes of the hearing.
It is important to know that issuing a court decision when the defendant is absent from the case and without written confirmation of his proper notification of the date of the hearing may serve as grounds for declaring such a verdict illegal.
Procedure for notifying the defendant
So, in order to consider a claim for divorce without violating the procedural rights of the parties involved in the case, what is important is not the very fact of the appearance or non-appearance of these persons, but the fact of their proper notification of the time and place of the hearing.
Notification of the plaintiff and defendant will be considered appropriate if the court case file contains a document containing the handwritten signature of the person notified of the day, time and place of the hearing (such a receipt may be contained in notices of delivery of registered letters, counterfoils of subpoenas, etc. .d.).
In such circumstances, even if the husband does not appear in court for divorce, the judge (magistrate) will have the right to hear the claim in his absence and render a verdict in the case.
This statement is confirmed by clause 4 of Art. 167 Code of Civil Procedure of the Russian Federation. According to this paragraph, the judge may consider the claim in the absence of the defendant, who was notified of the time and place of the court hearing, if he did not inform the court of valid reasons for his absence, and also did not send a written request to the judge to consider the case without his presence at the hearing. hearing.
What to do if the defendant evades?
There are often situations when a husband (wife), who does not agree to a divorce, does not appear in court, evades and in every possible way avoids receiving subpoenas, believing that such behavior will prevent the dissolution of the marriage.
What to do if the husband (wife) refuses to receive a subpoena from the court? There are several ways out of this situation:
- According to Art. 115 of the Code of Civil Procedure of the Russian Federation, you can ask the court to issue a summons for the defendant to the plaintiff. The latter will be able to try to serve the defendant with a summons against signature. If he refuses, you should, in the presence of a witness (indicating his passport details), make a note on the summons stating that the defendant, without explaining the reasons, refused to accept the summons. The summons must be returned to the court with a stamp.
- You can provide the judge with the defendant's personal and work phone numbers. The law does not exclude the possibility of notifying the parties to a case by telephone, including through the employer.
- The best way, in our opinion, would be to send a telegram with a notification of its delivery to the addressee. In this case, the postman will deliver a telegram with the text of the summons to the house at the location (residence) of the defendant. If the latter refuses to sign for its receipt, the postman will make a note about this on the notification, with the text: “The telegram was not delivered. Reason: refusal of the addressee."
In any of the above cases, according to Art. 117 of the Code of Civil Procedure of the Russian Federation, a defendant who refuses to accept a notice against signature will be considered notified in the prescribed manner.
As judicial practice shows, if the defendant fails to appear at a hearing without good reason three times in a row, the court makes a decision on the case without the presence of the defendant.
In conclusion, we note that the divorce process can take quite a long period if the husband (wife) repeatedly, without any important reasons, avoids appearing in court. However, by taking the initiative and assisting the judge in notifying the defendant of the need to come to the hearing on the appointed day, you can speed up the completion of the procedure as much as possible.
The plaintiff did not appear in court for divorce
The power of attorney that is issued to the representative must indicate which part of the divorce process is entrusted to him. Thus, the participation of a representative in the divorce process can be:
- partial (for example, only preparation of documents, presence at a court hearing)
- complete (from drawing up a claim and submitting documents to the court to participating in meetings and receiving a divorce certificate).
Sometimes the participation of a representative in a court hearing is possible without a power of attorney, but on the basis of an oral or written petition in court, which is recorded in the protocol. For example, if the defendant's place of residence is unknown, the court may appoint a lawyer to represent him.
- However, the procedure for divorce without the participation of one of the spouses depends on the reasons for such failure to appear.
- Divorce: The plaintiff asked for a divorce in his absence. If the plaintiff himself filed and did not appear, then it is postponed until the next time.
- If the plaintiff himself does not appear three times after being postponed to other days, then the consideration is terminated.
If the plaintiff comes to court, and the defendant does not come, having received or not received a summons, three times in a row, then the case is considered unilaterally. That is, in favor of the plaintiff. If the defendant has objections to the divorce, then even if the case is considered unilaterally, he has the right to file a complaint with the court to consider the case in his presence.
Registration on the site please? Or should we still go tomorrow? Failure to appear in court will not help you resolve your case faster.
it is better to provide evidence that you and your husband have not been running a common household for a long time, do not live together, do not communicate. evidence can be documents, testimony of witnesses.
Divorce without the presence of one of the spouses and without the participation of both parties
Important The court can refuse to accept and consider a claim (no matter - in the presence or absence of spouses) only on the basis of law. Attention For example, the court will not accept a claim for divorce from a husband whose wife is pregnant or has a child under one year old (even if the child has died, but not yet a year has passed since his birth). The court will not refuse to accept and consider a claim for divorce if one of the spouses disagrees with the dissolution of the marriage. All that the court can do to save the family is to give the spouses time for reconciliation of 1-3 months.
Features of divorce in court without the presence of one of the spouses
Is it possible to get a divorce without a second spouse? Question My husband and I have been living separately for several years; we do not live together - he lives and works abroad. I want to divorce my husband, and he is not against it, but he does not intend to return in the near future.
Is it possible to file a divorce in Moscow on your own, without the presence of your husband? What is needed for this? The answer is yes.
The law provides for several ways to file a divorce on the initiative of one of the spouses without the presence of the second spouse.
Will a divorce take place if the plaintiff fails to appear at court hearings several times?
As we have already described above, a person must inform in writing about the impossibility of attendance and reflect his position in relation to the claim - indicating, for example, consent to divorce.
In all other cases, the judge makes a decision without the defendant in absentia. For consideration in absentia, the consent of the plaintiff will be required.
If the plaintiff does not agree to a trial in absentia, the judge postpones the hearing until the defendant appears.
Features of absentee divorce:
- The defendant is given 7 days to file an application to set aside the judgment;
- The date for entry into force of the decision is extended by these seven days;
- If the defendant has arguments and evidence, the examination of which could affect the verdict, the court may reverse the decision and order a new trial.
IMPORTANT: Often the defendant may not know that the second spouse has filed for divorce.
What happens if the husband does not come to court for divorce, the defendant does not appear
- But the spouse’s disagreement usually leads to the fact that the judge gives the parties a period for reconciliation, which means the divorce process takes much longer.
- If the plaintiff does not appear The absence of the applicant at the first hearing does not mean that the case will not be considered at all.
After the first failure to appear, the court reschedules the hearing and attempts for a rehearing.
For this purpose, a second notice of the date and time of the new meeting is sent.
At the same time, the court ascertains the opinion of the second spouse – the defendant.
- And if he does not want to dissolve the marriage, and the plaintiff does not appear a second time, the statement of claim is simply returned to the plaintiff.
- IMPORTANT: Returning the claim does not prevent the plaintiff from filing it again the next time he appears in court.
- If the defendant fails to appear When a retrial is ordered, the court sends a new summons to the defendant spouse.
- the absent spouse agrees with the divorce, confirmed by a written document with the relevant content, certified by a notary;
- the absent spouse sent a representative by proxy in his place;
Other reasons for divorce without the participation of the parties There are other reasons why spouses do not want or cannot appear at the registry office or in court:
- Categorical disagreement with the divorce of one of the spouses, accompanied by aggressive behavior and causing fear in the second spouse;
- reluctance to see and communicate with your spouse in the circumstances of divorce proceedings;
- reluctance to waste time on the divorce process;
- lack of information about the spouse’s place of residence.
Where to contact? An application for divorce can be filed with the registry office, the magistrates' court or the district court.
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