State duty on divorce claims
By virtue of subparagraph 5) of paragraph 1 of Article 610 of the Tax Code, a state duty (hereinafter referred to as the state duty) in the amount of 0.3 MCI is levied on a claim for divorce filed with the 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 claim for divorce from the defendant in favor of the plaintiff were not recovered.
By the decision of the Taldykorgan City Court of the Zhetshu region dated November 24, 2022, S.T.'s claim to S.P. for the dissolution of marriage was satisfied. The court did not recover from the defendant the state fee paid by the plaintiff when filing a lawsuit for divorce, arguing that the defendant's actions did not contribute to filing a lawsuit in court.
Another example: On January 12, 2021, the Temirtau City Court of the Karaganda region issued a decision to satisfy A.O.'s claim to A.E. for the dissolution of the marriage. The court did not resolve the issue of the redistribution of court costs, referring to the fact that the plaintiff does not ask to reimburse the costs associated with the payment of the state fee.
In some cases, the issue of reimbursement of court costs was not considered at all and the decision did not indicate this (the decision of the Saransk City Court of the Karaganda region dated May 17, 2021 on the claim of K.N. to K.A. on the dissolution of marriage, the decision of the district court No. 2 of the Kazybekbiysky district of Karaganda dated May 27, 2020 on the claim.A. to M.E.).
The courts should keep in mind that the decision on the reimbursement of state duty costs is prescribed by the provisions of the first part of Article 109 of the CPC and should be reflected in the operative part of the court's decision, regardless of whether the plaintiff claims this or not.
There is a different practice in resolving issues of payment of state duty in the courts and in the case of recovery of alimony for the maintenance of minor children by virtue of subparagraph 2) of paragraph 2 of Article 22 of the Code, that is, when claims for recovery of alimony have not been declared by either party.
Thus, by the decision of the district court No. 2 of the Beiterek district of the West Kazakhstan region dated June 29, 2020, the claim of G.(D.) B. to G.A. about the dissolution of marriage was satisfied. The minor child's place of residence is determined with the defendant. Child support payments were collected from the plaintiff in favor of the defendant.
At the same time, the issue of collecting state duty in accordance with Article 117 of the CPC was not resolved by the court, citing the fact that no claim for alimony was filed, and the issue of the amount and procedure for paying alimony was resolved by the court in accordance with Article 22 of the Code, that is, by virtue of a direct instruction from the law.
Other courts, resolving the issue of collecting alimony in the absence of such a claim, collected the state fee based on subparagraph 5) of part 1 of Article 104 of the CPC.
For example, by the decision of the court No. 2 of the city of Uralsk dated May 5, 2020, I.A.'s claim to I.N. for the dissolution of marriage was satisfied. The marriage is annulled. The residence of the minor child with the defendant's mother I.N. was determined, alimony payments for the maintenance of the minor child were collected from the plaintiff I.A. in favor of the defendant I.N.
The court collected a state duty in the amount of 6,258 tenge from plaintiff I.A. to the state income on the basis of paragraph 1 of Article 117 of the CPC (the price of the claim was determined in accordance with subparagraph 5) of part 1 of Article 104 of the CPC based on the average monthly salary in the Republic of Kazakhstan).
Since, by virtue of subparagraph 4) of Article 616 of the Tax Code, plaintiffs in claims for the recovery of alimony are exempt from paying state duty, it seems appropriate to collect state duty in accordance with the first part of Article 117 of the CPC to the state income from a person who is obligated to pay alimony if he is not legally exempt from paying court costs.
Return of the claim due to non-compliance with the out-of-court dispute resolution procedure
On September 30, 2021, the Supreme Court adopted the normative resolution "On Amendments and Additions to certain Normative Resolutions of the Supreme Court of the Republic of Kazakhstan on Civil and Civil Procedure Legislation", which amended and supplemented the Normative 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 (Matrimony)" (hereinafter referred to as the Regulatory Resolution)
The amendments were caused by the courts considering the case of divorce between spouses who do not have common adult children, 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 Regulatory Decree set out in the new edition, to apply to the court with a claim for the dissolution of marriage (matrimony)spouses who do not have property or other claims against each other and common minor children must provide evidence confirming the defendant's refusal to terminate the marriage (matrimony) with the registration authority, or his evasion from the dissolution of the marriage (matrimony), despite the absence of objections. The presentation of the above evidence is the plaintiff's responsibility. In the absence of such evidence, the application must be returned with reference to subparagraph 1) of the first part of Article 152 of the CPC due to non-compliance with the out-of-court dispute resolution procedure established by law for this category of cases.
At the same time, explanations are given about 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).
As the analysis showed, in 2020-2021, the practice in courts was ambiguous in cases of divorce between spouses who do not have common minor children and property disputes.
Some judges accepted letters from the heads of the RAGS stating that the application had not been reviewed due to the non-appearance of the second spouse and recommended to apply to the court as evidence of the impossibility of divorce at the registering authority and, accordingly, the marriage was dissolved in a judicial order, while other judges returned the claims, indicating that such letters did not confirm the spouse's evasion from appearing at the registering authority, or his disagreement with the dissolution of the marriage.
In cases where the plaintiff had taken all measures to terminate the marriage with the registration authority, the courts accepted the claims and dissolved the marriage.
Example: The Fedorovsky District Court of the Kostanay region adopted the K.S. to K.V. decree on the dissolution of marriage.
It has been established that the plaintiff has repeatedly applied to the registering authority with a request for divorce, and there is a notice sent to the defendant's vadres. However, the defendant did not appear for the dissolution of the marriage.
Since the plaintiff has provided all the necessary evidence confirming the fact that the plaintiff applied to the registration authority, as well as sending a notice of intention to terminate the marriage to the second spouse, the claim was reasonably accepted for court proceedings and the claim was satisfied by the court decision of April 6, 2022.
There are cases when the courts allow a formal approach to verify the existence of evidence of the defendant's evasion of divorce or lack of consent to divorce, as a result of which the claims are unreasonably returned to the applicants.
Example: On August 27, 2022, the ruling of the judicial board for Civil Cases of the Zhambyl Regional Court overturned the ruling of the Kordai District Court of the Zhambyl region dated June 17, 2022 on the lawsuit filed by F.M. against F.T. on the dissolution of marriage.
The court of first instance, returning the claim, in connection with non-compliance with the out-of-court procedure, indicated that the plaintiff had not provided evidence of the appeal to the registration authority. Whereas the claim was accompanied by documents confirming that the defendant had received a notice of intent to terminate the contract and a proposal to jointly apply to the registration authority.
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