Dissolution of marriage
According to paragraph 11 of the Regulatory Decree, the courts should consider cases of divorce (matrimony), as a rule, with the participation of both 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 the spouses who have minor children together, in the absence of property and other claims of the spouses to each other, as well as if one of the spouses submits an application for the dissolution of the marriage (matrimony), and the second, despite the absence of objections, evades his actions or omissions. from the dissolution of marriage (matrimony), the court terminates the marriage without clarifying the motives for the dissolution of marriage (matrimony).
In these cases, the marriage is dissolved 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:
1) determine which parent the minor children will live with after the dissolution of the marriage (matrimony);
2) determine which parent will pay child support and in what amount;
3) at the request of the spouses, divide the property in their common joint ownership, taking into account the interests of minor children and (or) the interests of the spouses themselves.;
4) at the request of a spouse who is entitled to receive maintenance from another spouse, determine the amount of this maintenance.;
5) 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 minor children will live with after the dissolution of the marriage (matrimony), from which parent and in what amounts alimony is collected for maintenance of children. 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 usually satisfied by the courts.
The courts rejected the claim in accordance with paragraph 2 of the 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 child's life.
Thus, by the decision of the Tupkaragan District Court of the Mangystau region dated July 19, 2022, the claim of E.E. to D.K. for the dissolution of marriage was dismissed 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.
Jurisdiction
According to the general rule of jurisdiction, a claim for divorce in accordance with Article 29 of the CPC is filed at the defendant's place of residence.
In the case where minor children live with the plaintiff, the claim may be filed at the plaintiff's place of residence (part seven of Article 30 of the CPC).
The issues of determining the jurisdiction of cases in this category do not cause difficulties for the courts, however, there are a number of judicial errors.
The place of residence is the locality where the citizen permanently or predominantly resides.
State duty
By virtue of subparagraph 5) According to paragraph 1 of Article 610 of the Tax Code, a state fee (hereinafter referred to as the state fee) in the amount of 0.3 MCI is charged from a claim for divorce filed in court.
Payment of the state fee and the attachment of evidence of its payment to the claim is mandatory for the claim to be accepted by the court and its consideration.
The plaintiff is the payer of the state fee.
However, there are cases when courts accept claims with a receipt for payment of state duty attached, not by the plaintiff, but by the defendant.
For example, the Tayynshinsky district Court of the North Kazakhstan region accepted B.K.'s lawsuit against B.N. for divorce, the lawsuit was filed by B.K., and the state duty was paid by the defendant B.N.
A study of the cases showed that the state fee paid by the plaintiff when filing a claim with the court, according to part 1 of Article 109 of the CPC, is awarded to the plaintiff from the defendant when deciding on the satisfaction of the claim.
Meanwhile, there are cases when, upon satisfaction of the claim, the court costs of paying the state fee when filing a lawsuit for divorce from the defendant in favor of the plaintiff were not recovered.
Return of the claim due to non-compliance with the out-of-court dispute settlement procedure
On September 30, 2021, the Supreme Court adopted a regulatory resolution "On Amendments and Additions to Certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan on civil and Civil procedure legislation", which amended and supplemented the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 5 "On the application of legislation by courts when considering cases of dissolution of marriage (matrimony)" (hereinafter referred to as the Regulatory Resolution)
The amendments were caused by the courts considering cases of divorce between spouses who do not have minor children together, as well as property and other claims, whereas according to the Code, with the mutual consent of such spouses, the dissolution of marriage is carried out at the registration authority.
By virtue of paragraph 6 of the new version of the Regulatory Decree, in order to file a lawsuit for the dissolution of a marriage (matrimony) of spouses who do not have property or other claims against each other and common minor children, it is necessary to provide evidence confirming the defendant's refusal to terminate the marriage (matrimony) with the registration authority, or his evasion from the dissolution of marriage (matrimony), despite the absence of objections. The presentation of such evidence is the plaintiff's responsibility. In the absence of such evidence, the application must be returned with reference to subparagraph
1) the first part of Article 152 of the CPC due to non-compliance with the non-judicial dispute settlement procedure established by law for this category of cases.
At the same time, explanations are given on which documents can be submitted by the plaintiff to confirm the defendant's refusal to terminate the marriage (matrimony) with the registering authority, or his evasion from the dissolution of the marriage (matrimony).
Preparing a case for trial
By virtue of paragraph 3 of the Regulatory Decree, the courts are required to carefully prepare the case of the dissolution of marriage (matrimony) for trial. After accepting the application, the judge should, as a rule, summon the second spouse and find out his attitude to this application, whether the spouses have any other controversial issues to be resolved by the court, and explain which of the requirements can be considered simultaneously with the claim for divorce (matrimony).
Compliance with the time limits for consideration of the case
By virtue of paragraphs 3, 4 of Article 19 of the Code, a marriage (matrimony) is legally dissolved after one month from the date on which the spouses file an application for dissolution of the marriage (matrimony) with the court.
In exceptional cases, the court may terminate the marriage (matrimony) before the expiration of the period specified in paragraph 3 of this article.
In the course of the generalization, it was found that some judges, in violation of the above-mentioned requirements of the law, issued a decision on the dissolution of marriage before the expiration of a month period.
Conciliation procedures
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.
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 on the settlement of a dispute (conflict) through mediation, or an agreement on the settlement of a dispute through a participatory procedure, or using other methods in accordance with the procedure established by the CPC.
In accordance with article 1 of the Law on Mediation, the mediation procedure can be applied to disputes arising from civil law relations, as well as to disputes arising from labor and family law relations.
Regulatory framework
The main regulatory legal acts to be applied in the consideration of disputes on the dissolution of marriage are:
1) The Constitution of the Republic of Kazakhstan;
2) The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code);
3) The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC);
4) The Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter – the Code);
5) The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)" dated December 25, 2017 No. 120-VI SAM (hereinafter referred to as the Tax Code);
6) The Law of the Republic of Kazakhstan "On the Rights of the Child in the Republic of Kazakhstan" dated August 8, 2002 No. 345-II;
7) The Law of the Republic of Kazakhstan "On Mediation" dated January 28, 2011 No. 401-IV;
8) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 5 "On the application of legislation by courts when considering Cases of Divorce";
9) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2018 No. 15 "On the application of legislation by courts in resolving disputes related to the upbringing of children";
10) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2019 No. 6 "On the application of legislation by courts when Considering cases related to the recovery of alimony";
11) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision in civil cases";
12) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 9 "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases";
13) Convention on the Rights of the Child (ratified by the Resolution of the Supreme Council of the Republic of Kazakhstan dated June 8, 1994).
The provisions of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993 (Minsk Convention) and the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of October 7, 2002 (Chisinau Convention) also apply to legal relations involving CIS citizens.
If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by Law, the rules of the international treaty shall apply.
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