Dissolution of marriage between persons with minor children

In accordance with Article 17 of the Marriage (Matrimony) and Family Code, the dissolution of marriage (matrimony) in the registration authorities is carried out with mutual consent to the dissolution of marriage (matrimony) of spouses who do not have minor children together, and in the absence of property and other claims against each other.

Regardless of whether the spouses have common minor children, the marriage (matrimony) is terminated at the registration authorities at the request of one of the spouses, if the other spouse:

1) recognized by the court as missing;

2) declared legally incompetent by the court;

3) recognized by the court as having limited legal capacity;

4) has been sentenced to imprisonment for a term of at least three years for committing a crime.

According to paragraph 2 of Article 19 of the Marriage (Matrimony) and Family Code, the dissolution of marriage (matrimony) in court is carried out in the following cases::

1) the spouses have common minor children, with the exception of the cases provided for in paragraph 2 of Article 17 of this Code;

2) the lack of consent of one of the spouses to the dissolution of the marriage (matrimony);

3) if one of the spouses, despite his absence of objections, evades the dissolution of the marriage by his actions or inaction;

4) the existence of property and other claims of the spouses to each other.

Jurisdiction of disputes on the dissolution of marriage between persons with minor children has not caused any difficulties in judicial practice, since all of them are subordinate to the court, with the exception of cases provided for in paragraph 2 of Article 17 of the Marriage (Matrimony) and Family Code.

Jurisdiction

According to the general rule of jurisdiction, a claim for divorce in accordance with art. 31 of the CPC is filed in court at the defendant's place of residence.

In accordance with paragraph 9 of 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 divorce", a claim for the dissolution of a marriage with a person whose place of residence is unknown or who does not have a place of residence in the Republic of Kazakhstan may be filed and considered essentially at the location of his property or at his last known place of residence (paragraph 1 of Article 32 of the CPC).

In the case when minor children are with the plaintiff or when it is difficult for him to travel to the defendant's place of residence for health reasons, the claim may be filed at the plaintiff's place of residence (paragraph 7 of art. 32 of the CPC).

Claims for the dissolution of marriage with persons sentenced to imprisonment, regardless of the term of punishment determined by them, are filed in compliance with the general rules on jurisdiction. If the claim is filed in court at the defendant's place of residence, then it is necessary to proceed from the last place of residence of the said person before his conviction.

State duty

By virtue of subparagraph 5) of paragraph 1 of Article 535 of the Tax Code, a state duty in the amount of 30% of the monthly calculation index is charged from a statement of claim for divorce filed with the court. The payer of this state duty is the plaintiff.

An analysis of judicial acts has shown that in a significant part of court decisions throughout the republic, the state fee paid by the plaintiff when filing a claim, as court costs, is not awarded to the plaintiff from the defendant when making a court decision on the satisfaction of the claim. Meanwhile, in accordance with art. 110 Part 1 of the CPC, the court awards the party in whose favor the decision was made, on the other hand, all court costs incurred in the case.

If the claim is partially satisfied, the costs are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to the part of the claims denied to the plaintiff. This provision of the CPC also applies to divorce cases.

The court decision must specify from which of the spouses and in what amount the state duty is to be collected and which of the spouses, taking into account the financial situation, being in the care of children, and other specific circumstances, is exempt from paying it.

In accordance with paragraph 22 of 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 Divorce", the court's decision on the dissolution of marriage (matrimony), as well as the decision to refuse divorce, must be lawful and based on evidence comprehensively verified in court session.

In the reasoning part of the decision, in the case when one of the spouses objected to the dissolution of the marriage (matrimony), the reasons for the discord between the spouses established by the court, evidence of the impossibility of preserving the family or the conclusions of the court on the possibility of preserving the family, the arguments on the basis of which the court rejects certain evidence, the laws that guided the court are indicated.

The operative part of the decision to satisfy the claim for the dissolution of marriage (matrimony) must contain the court's conclusion on all the claims of the parties listed in paragraph 2 of Article 22 of the Code, including those combined for joint consideration. This part of the decision also specifies the information necessary for the state registration of the dissolution of marriage (the date of registration of marriage (matrimony), the number of the registration record, the name of the registering authority that registered the marriage (matrimony), the surnames of the spouses in case of dissolution of marriage (matrimony) - whether the common surname is preserved or the former, premarital surnames are restored). The surnames of the spouses are recorded in the decision in accordance with the marriage certificate, and in the case of a change in the surname upon marriage, the premarital surname must also be indicated in the introductory part of the decision.

The decision should specify from which of the spouses and in what amount the state fee is to be collected and which of the spouses, taking into account the financial situation, being in the care of children, and other specific circumstances, is exempt from its payment. The moment of termination of marriage (matrimony) is reflected - from the date of entry into force of the decision.

 

 

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