Conciliation procedures in the dissolution of marriage (matrimony)

By virtue of article 20 of the Code and paragraph 10 of the Regulatory Decree, the courts take measures to reconcile the spouses only if one of them does not agree to the dissolution of the marriage (matrimony) and postpone the trial, assigning the spouses a period for reconciliation within six months.

The summary showed that most of the divorce claims were dismissed at the request of the plaintiff on the basis of subparagraph 8) of Article 279 of the CPC in connection with the reconciliation of the parties, and the courts rejected the claim in case of reconciliation of the parties and terminated the proceedings.

By the ruling of the Nauryzbay District Court of Almaty dated September 27, 2021, the spouses Zh.A. and Zh.K. were given a one-month term in order to preserve their family. At the end of this period, the claim was returned without consideration in connection with the reconciliation of the parties.

Another example: Court No. 2 in Uralsk, in the case of D.M.'s claim to D.A. for the dissolution of marriage, the parties were given a one-month reconciliation period, as a result of which, on March 10, 2021, the plaintiff received a notice of dismissal of the claim in connection with the reconciliation of the spouses.

However, if, after the expiration of the deadline set by the court, the reconciliation of the spouses has not taken place and at least one of them insists on terminating the marriage, the courts terminate the marriage, which complies with the requirements of the Code.

The generalization showed that the courts, along with providing time for reconciliation, take measures to resolve the dispute (conflict) through mediation.

According to parts 1, 2 of Article 174 of the CPC, the court takes measures to reconcile the parties, assists them in settling the dispute at all stages of the process. The parties may settle the dispute in full or in part by concluding a settlement agreement, an agreement to settle the dispute (conflict) through mediation, or an agreement to settle the dispute through a participatory procedure, using other methods in accordance with the procedure established by the CPC.

In accordance with article 1 of the Law on Mediation, mediation procedures can be applied to disputes arising from civil law relations, as well as to disputes arising from labor and family law relations.

Thus, in the case of H.A. to T.T., the Turksib District Court of Almaty city decided on the dissolution of the marriage on April 22, 2021.

At the same time, during the trial, the parties reached a mediation agreement on the issues of determining the place of residence, maintenance and upbringing of two minor children, in connection with which, the court issued a ruling on approval in this part of the mediation agreement.

However, mediation agreements are approved when the parties have actually reconciled.

At the same time, mediation agreements specify the following conditions::

"The parties undertake to provide each other with due attention, treat each other with respect and understanding, help in the moral plan for raising children, maintain a proper atmosphere in the family," or: "The plaintiff refuses the claim, and the defendant undertakes to stop performing negative actions and save the family."

Such conditions, reflected in mediation agreements and judicial acts, cannot be enforced, since the actions reflected in them are inextricably linked to the personality of the party to the dispute, who cannot be forced into a voluntary marriage, and such agreements do not comply with the requirements of article 27 of the Law "On Mediation".

Other judges approve mediation agreements, which state that the plaintiff has dropped the claim, and no terms of mediation agreement are provided.

In this case, the court should have accepted the waiver of the claim and terminated the proceedings in the case, or clarified the right to file an application for the return of the claim.

In cases where the plaintiff withdraws the claim, the courts should explain to the parties the consequences of terminating the proceedings on the dissolution of the dispute for reconciliation of the parties and the possibility of resorting to court on other grounds.

According to paragraph 23 of the Normative Resolution, in cases of reconciliation of spouses after the decision on the dissolution of marriage (matrimony), the court, if they have a written statement about it, has the right to terminate the execution of the decision by its ruling before the expiration of the effective date of the decision.

It is established that the courts terminate the execution of the decision in such cases.

Example: By the decision of the Kokshetau City Court of March 18, 2021, B.O.'s claim to B.G. for the dissolution of marriage was satisfied. On March 26, 2021, that is, before the decision entered into force, an application was received from both parties asking them not to send the decision for execution, since they reconciled and did not want to end the marriage.

By the ruling of the Kokshetau City Court dated March 30, 2021, the execution of the above-mentioned court decision was suspended. The original Marriage Certificate was returned to the plaintiff, thereby the marriage is considered preserved.

The courts should explain to the parties the provisions of paragraph 23 of the Regulatory Resolution and the possibility, when reconciling the entry into force of the court decision, to apply for termination of the execution of the court decision.

Since the court's decision has not entered into legal force, the marriage is considered terminated, therefore the parties have the right to re-apply to the court with a claim for the dissolution of the marriage.

Case review practice

According to paragraph 11 of the Regulatory Decree, cases of divorce (matrimony) should be considered by the courts, as a rule, with the participation of their spouses. It is necessary to comprehensively clarify the relationship between the parties, the motives for which the issue of divorce (matrimony) is being raised, and the real reasons for the discord between the spouses. However, if there is mutual consent to the dissolution of the marriage (matrimony) of spouses with common minor children, in the absence of property or other claims of the spouses to each other, as well as if one of the spouses files an application for the dissolution of the marriage (matrimony), and the second, despite the absence of objections, by his actions or inaction refuses to dissolve the marriage (matrimony), the court terminates the marriage, not explaining the reasons for the dissolution of the marriage (matrimony). The dissolution of the marriage in these cases is carried out within a period of up to two months (Article 183 of the CPC).

By virtue of paragraph 2 of Article 22 of the Code, if there is no agreement between the spouses on the issues specified in paragraph 1 of this article, as well as if it is established that this agreement violates the interests of the children or one of the spouses, the court must:

determine which parent the adult children will live with after the dissolution of the marriage (matrimony);

determine which parent will pay child support and in what amount;

at the request of the spouses, divide the property in their common joint ownership, taking into account the interests of adult children and (or) the interests of the spouses themselves.;

At the request of a spouse who is entitled to receive maintenance from another spouse, determine the amount of this maintenance.;

determine the procedure for parent-child communication (subparagraph 5 was amended in accordance with the Law of March 27, 2023 and entered into force on April 8, 2023).

According to paragraph 13 of the Regulatory Decree, if there is no agreement between the spouses on the above issues, as well as if the agreement submitted to the court violates the interests of the children, the court is obliged to determine which parent the adult children will live with after the dissolution of the marriage (matrimony), from which parent and to what extent child support is collected.The court should also clarify that a parent living separately from the children is obliged to take part in the upbringing of children and has the right to communicate with them., and the other parent has no right to prevent him from doing so, which is recorded in the minutes of the court session.

It follows from judicial practice that in all completed cases with judgments, claims for divorce were generally satisfied by the courts. The courts rejected the claim in accordance with paragraph 2 of Article 16 of the Code, which provides for the impossibility of divorce without the consent of the spouse during her pregnancy and during the first year of the baby's life.

Thus, by the decision of the Tupkaragan District Court of the Mangystau region of July 19, 2022, the claim of E. to D.K. for the dissolution of marriage was denied with reference to paragraph 2 of Article 16 of the Code, since the dissolution of marriage without the consent of the spouse during the first year of the life of a joint child is impossible.

A study of civil cases has shown that the courts, despite the absence of an agreement between the parties on which of the parents minor children will live with after the dissolution of marriage (matrimony) and an agreement or judicial act on the payment of alimony, these issues are not always resolved, indicating various reasons that do not comply with the requirements of the law.

By the decision of the Petropavlovsk city Court No. 2 of the North Kazakhstan Region dated November 29, 2021, B.A.'s claim to B.M. for divorce was satisfied. The place of residence of the minor child is determined by the mother of B.A.

The issue of collecting alimony for the maintenance of a minor child has not been resolved. In the reasoning part of the decision, the court indicated that the defendant would pay alimony voluntarily, which indicates that the parent's consent to the payment of alimony was required.

However, in violation of subparagraph 2) of paragraph 2 of Article 22 of the Code, the court did not resolve the issue of how much, in what order and at what time, and in whose favor alimony for the maintenance of an adult child is to be recovered.

Another example: By the decision of the Taldykorgan City Court of the region ~Zhet1su dated November 10, 2022, S.M.'s claim to J.M. for divorce was satisfied. The place of residence of minor children is determined by the mother of S.M. The decision states that the issue of collecting alimony is unresolved, since the paternity of an adult child is disputed, and the plaintiff does not ask to collect alimony.This court decision violates the interests of a minor child.

The court did not take into account that the statement of contesting paternity in itself does not prevent the recovery of alimony for the maintenance of an adult child. The absence of an obligation to pay alimony may be established by the court if there is a court decision that establishes that the person is not the father of the child.

No paternity claim has been filed in this case.

By virtue of paragraph 13 of the Regulatory Decree, if, when discussing the claim for child support, the other party disputes the entry of the child's father or mother in the birth certificate, both of these claims must be separated from the case of divorce (matrimony) for their simultaneous consideration in a separate proceeding.

There are cases when judges do not resolve the issues referred to in subitems 1) and 2) of paragraph 2 of Article 22 of the Code, referring to the limits of jurisdiction.

Example: By the decision of the Medeu District Court of the city of Almaty on April 20, 2022, the marriage between B.K. and S.K. was dissolved. Alimony for the maintenance of a minor child has not been collected. The court pointed out that the claim was only about the dissolution of the marriage and, by virtue of part 2 of Article 225 of the CPC, the court could not go beyond the claim.

This indicates that the judge unlawfully fails to apply the Normative Resolution of the Supreme Court of July 11, 2003 No. 5 "On Judicial Decision", paragraph 16 of which clarifies that the court has the right to go beyond the stated requirements in cases expressly provided for by law. Article 22 of the Code stipulates that the court, upon dissolution of marriage, is obliged to resolve issues of the maintenance of adult children and their place of residence after the dissolution of marriage.

In another case, the court of the Baikonur district of Astana, having considered the dissolution of the marriage between E.D. and E.V., in a decision dated June 17, 2022, indicated that the issue of collecting alimony for the maintenance of an adult child, born on January 5, 2005, was not resolved, since he would soon turn 18.

In practice, cases have been identified when, when filing a lawsuit for divorce, judges identified the requirements for determining the child's place of residence and referred such a dispute to the juvenile court for resolution, thereby violating the requirements of article 22 of the Code, which states that during the consideration of a lawsuit for divorce if the spouses have minor children, the court considering the dispute upon the dissolution of the marriage, he is obliged to determine which of the parents the minor children will stay with.

Violations of the mandatory resolution of issues related to determining the child's place of residence and maintenance were also allowed during the appeal hearing.

Thus, the decision of the Atyrau City Court of February 25, 2022 on the claim of A. to S.S. on the dissolution of marriage was reviewed on appeal. The marriage was dissolved by the court of first instance, the minor child's place of residence was determined by the mother, and alimony for the minor child was collected from the defendant S.S. in favor of the plaintiff B.A.

By a decision of the judicial board for Civil Cases of the Atyrau Regional Court dated June 2, 2022, the court's decision regarding the satisfaction of the claim for determining the place of residence of the child with the mother and the claim for alimony was canceled. The place of residence of the minor child is determined with the father of S.S.

At the same time, the court of appeal, without resolving the issue of collecting alimony for the maintenance of a minor child, indicated that the child's father did not ask for alimony.

Another example: By the decision of the Ili District Court of the Almaty region dated March 10, 2022, the claim of D.S. to A.M. for the dissolution of the marriage was satisfied. Minor children are left to live with their mother.Alimony payments for the maintenance of minor children were collected from plaintiff D.S..By the decision of the Judicial Board for Civil Cases of the Almaty Regional Court dated June 2, 2022, the decision was changed. In terms of collecting alimony from the D.S. canceled. The Court of Appeal reasoned that since the claim for the recovery of alimony was not filed by the parties, the issue of child support was resolved on a voluntary basis, then imposing on the plaintiff the obligation to pay alimony for the maintenance of adult children is unreasonable.

In another case, by the decision of the Ili District Court of the Almaty region dated February 28, 2022, D.M.'s claim to A.E. for divorce was satisfied. The minor child was left to live with his father.Alimony payments for the maintenance of a minor child were collected from the plaintiff, D.M.

By the resolution of the board of the Almaty Regional Court dated May 04, 2022, the decision of the court of first instance was changed. Regarding the recovery of alimony from D.M., it was canceled due to the fact that the claim for recovery of alimony was not filed and the defendant, with whom the child was left to live, refused alimony for the maintenance of his daughter.

Whereas, according to paragraph 14 of the Supreme Court's regulatory Decree "On the Application of Legislation by Courts in Resolving Disputes related to the upbringing of children" dated November 29, 2018, No. 15, the plaintiff's refusal to collect alimony for the maintenance of a foal is contrary to the law and violates the rights of the child.

By the decision of the Ust-Kamenogorsk City Court of the East Kazakhstan region dated July 8, 2021, M.E.'s claim to M.O. for the dissolution of the marriage was satisfied. Questions about the recovery of alimony and the place of residence of the children are not resolved by the court.

In the appeal, the defendant pointed to a violation of the court requirements of article 22 of the Code. However, by a decision of the judicial Collegium for Civil Cases of the East Kazakhstan Regional Court on October 14, 2021, the defendant's arguments were declared untenable and the decision was left unchanged.

The analyses of the local courts reflect the issues of collecting alimony for the maintenance of minor children, if each parent has children.

For example, by the decision of the Gabit Musrepov district court of the North Kazakhstan region dated December 22, 2022, the claim of A. to J.B. for the dissolution of marriage was satisfied. The claim for the recovery of alimony was not filed by the parties. The court, having determined the place of residence of two minor children with their father and one child with their mother, collected alimony for the maintenance of two children from Zh.B. in favor of K.A. in the amount of 1/3 of her income, and from K.A. in favor of Zh.B. for the maintenance of one minor child in the amount of 1/4 of his income.

It should be borne in mind here that by virtue of paragraph 4 of Article 141 of the Code, if each parent has children, the amount of alimony from one parent in favor of another, less well-off, is determined in a fixed monetary amount.

Since in this case it is necessary to resolve the issue of collecting alimony in a fixed amount of money, it should be clarified to the parties that if each parent has children, the less well-off spouse has the right to file a claim with the court, providing appropriate evidence.

In the event that none of the parties to the divorce claim has filed a claim for alimony, the courts have different approaches to resolving the issue of the beginning of the alimony recovery period.

Some courts, based on the provisions of article 164 of the Code on the award of Alimony from the moment of applying to the court, recover from the date of applying to the court with a claim for divorce, others determine the beginning of the recovery period from the date of the court decision.

Example: By the decision of the court No. 3 of the city of Aktobe dated March 15, 2022, the claim for divorce was satisfied.

Alimony payments for the maintenance of two adult children were collected from Sh.A. in favor of Sh.K., starting from the moment the claim was filed with the court, that is, from February 7, 2022.

Another example: By the decision of the Atyrau City Court of June 7, 2022, T.A.'s claim to T.U. for the dissolution of marriage was satisfied. The court, collecting alimony for the maintenance of a minor child from T.U. in favor of T.A., pointed out that since the plaintiff had not claimed alimony when filing a lawsuit for divorce and during the examination of the case, the period for collecting alimony should be calculated from June 7, 2022, that is, from the date of the decision on the dissolution of the marriage.

Thus, the courts have difficulty calculating the beginning of the period for collecting alimony for the maintenance of minor children, in the absence of demands for the recovery of alimony, since the law provides for the recovery of alimony from the moment the claim is filed, whereas in these cases such claims have not been declared by the parties.

According to paragraph 2 of Article 164 of the Code, alimony is awarded from the moment of applying to the court. Alimony for the past period may be claimed within three years from the date of applying to the court, if the court finds that prior to applying to the court, measures were taken to obtain funds for maintenance, but alimony was not received as a result of the evasion of the person obligated to pay alimony from their payment.

By virtue of paragraph 33 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2019 No. 6 "On the application of the law to courts when considering cases related to the recovery of alimony", measures taken to obtain alimony may be evidenced, in particular, by the plaintiff's appeal to the defendant (for example, by sending telegrams, registered letters with notification or by electronic mail) with a demand for the payment of alimony and a proposal to conclude an agreement on the payment of alimony, applying for a court order to collect alimony for an adult child (if the court order was subsequently changed).

In turn, the defendant is required to provide evidence refuting the plaintiff's arguments about avoiding payment of alimony and confirming the payment of alimony during the specified period.

For the purposes of uniform and correct application of the current legislation, it is necessary to clarify this issue in the Regulatory Statement.

The generalization also showed that in some cases, the court in the operative part of the decision, in violation of subparagraph 1) of Article 243 of the CPC, did not indicate the immediate execution of the court's decision regarding the recovery of alimony.

The generalization also showed that in some cases, the court in the operative part of the decision, in violation of subparagraph 1) of Article 243 of the CPC, did not indicate the immediate execution of the court's decision regarding the recovery of alimony.

In addition, the courts do not clarify the position of the spouseon the assignment of a surname after the dissolution of the marriage, and the decision does not specify the names of the spouses after the dissolution of the marriage by virtue of part 1 of Article 22 of the Code.Subsequently, failure to clarify this circumstance by the courts entails additional costs due to the need for state registration of a change of surname in the RAGS authorities.

Thus, by virtue of paragraph 4) of Article 257 of the Code, the state registration of a surname change is carried out by the registration authorities at the personal request of a person who has reached the age of sixteen and wishes to change his surname in connection with the desire to bear a premarital surname, unless this is stated at the dissolution of marriage (matrimony).

In practice, there have been cases when judicial acts have been subject to correction in this part.

Thus, by the decision of the judicial board for civil cases of the Karaganda regional court dated April 1, 2021, the decision of the Balkhash city court of the Karaganda region on the claim of H.N. to H.R. about the dissolution of marriage was canceled in terms of assigning to the plaintiff H.N. maiden name - G.

By changing the decision, the court of appeal indicated that the plaintiff had not asked the court to assign her a premarital surname. By virtue of paragraph 3 of Article 31 of the Code, in the event of the dissolution of a marriage (matrimony), the spouses have the right to retain the family name chosen at the conclusion of the marriage (matrimony) or to restore their premarital surnames.

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