Grounds for judicial dissolution of marriage
First of all, these are the norms of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" dated December 26, 2011, which regulate the jurisdiction of the court over disputes on the dissolution of marriage, the grounds for judicial dissolution of marriage, the timing of the dissolution of marriage, issues resolved by the court when deciding on the dissolution of marriage, the moment of termination of marriage when termination.
The norms of the Civil Procedure Code of the Republic of Kazakhstan, which regulate the jurisdiction of disputes on the dissolution of marriage, the procedure for the consideration of civil cases, including the dissolution of marriage, drafting and adjudication, etc.
Norms of normative resolutions 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", dated July 11, 2003 No. 5 "On judicial decision" (subparagraph a) of paragraph 24).
Jurisdiction
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 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.
In judicial practice, the very issues of jurisdiction over disputes over the dissolution of marriage have not caused difficulties. However, issues related to the application of the civil procedure law continue to cause certain difficulties when filing claims for divorce that are not under the jurisdiction of the court, when the spouses have no property or other claims against each other, they do not have minor children, and there is no information in the statement of claim and the documents attached to it that the defendant does not agree. to terminate the marriage, or, despite his absence of objections, by his actions or inaction, he evades the dissolution of the marriage.
Thus, by the decision of the judge of the Bostandyk district Court of Almaty, K. On January 16, 2015, on the basis of art. 153, part 1, paragraph 1) of the CPC, the acceptance of the claim of R. to R. for the dissolution of marriage was refused due to the fact that the application is not subject to consideration in civil proceedings and it is recommended to contact the RAGS authorities.
By a similar ruling dated February 6, 2015, the same judge K. refused to accept the statement of claim for the same reasons. about the dissolution of marriage.
In the same situation, judge N. of the Kokshetau City Court of the Akmola region issued a ruling on February 11, 2015 on the basis of art. 154, part 1, paragraph 1) of the CPC, K. K.'s statement of claim for divorce was returned to the plaintiff due to the fact that the plaintiff did not comply with the procedure for preliminary pre-trial dispute resolution established by law for this category of cases and the possibility of The application of this order has not been lost. At the same time, the judge, in the absence of information in the statement of claim and the attached documents that the defendant does not agree to the dissolution of the marriage or, despite his lack of objections, evades the dissolution of the marriage by his actions or inaction, concluded that in this case the plaintiff should first contact the Civil Registry Office.
Meanwhile, in accordance with paragraph 6 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 marriage (matrimony)", the dissolution of marriage (matrimony) by mutual consent of spouses who do not have common minor children is carried out in the territorial judicial authorities that carry out state registration of acts of civil status in the absence of property and other claims against each other. However, a judge may not refuse to accept a spouse's application for divorce, and the court may leave the application without consideration on the grounds that the marriage may be terminated by the territorial judicial authorities responsible for state registration of civil status acts if the second spouse, despite his absence of objections, evades the dissolution of marriage (matrimony) in the territorial judicial authorities that carry out state registration of acts of civil status (refuses to submit a joint application or a separate application in the case of, when he is unable to appear in person to file a joint application, or, having filed it, does not want to appear for divorce registration, etc.). Courts should require the applicant to submit a certificate confirming the application for divorce to the registration authority and the evasion of the second spouse from appearing.
Thus, the said Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan provides clear explanations that in such cases the court has no right to refuse to accept the statement of claim, they are not subject to return or leave without consideration.
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 marriage (matrimony)", 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 610 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.
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.
However, there continue to be cases of non-application of the norms of art. 110 part 1 of the CPC in cases of divorce.
By virtue of subparagraph 2) of paragraph 1 of Article 610 of the Tax Code, the state fee for registration of divorce: based on a court decision is 150 percent of the monthly calculation index.
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.
However, there are cases when the state fee for registering a marriage is collected as a percentage of the monthly calculation index without specifying the amount of the state fee in tenge in the court decision; the entire state fee is collected from one side of the dispute without specifying the exemption of the other party from paying the state fee.
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 the marriage (matrimony) is reflected - from the date of entry into force of the decision.
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