Unjustified return of a claim in cases of divorce
On September 28, 2021, the Court of Appeal overturned the ruling of the Aktobe City Court No. 3 dated July 21, 2021 in the case of the claim of N.Sh. to B.A. on the dissolution of marriage.
Attached to the claim, as evidence of the defendant's avoidance of divorce, is a notice from the registering authority stating that the defendant did not appear at the RAGS authorities for divorce on one occasion, as well as a legally certified statement by B.A., in which she indicates that she categorically does not agree to the divorce.
Despite the fact that the plaintiff provided sufficient evidence of his compliance with the pre-trial dispute settlement procedure, the court of first instance unreasonably returned the claim with reference to subparagraph 1) of the first part of Article 152 of the CPC.
According to subparagraph 4) of paragraph 2 of Article 17 of the Code, regardless of whether the spouses have common minor children, the marriage (matrimony) is dissolved at the registration authorities at the request of one of the spouses if the other spouse has been sentenced to imprisonment for a term of at least three years for committing a crime.
The application of this norm does not cause difficulties for the courts, however, there are cases of improper application of the norms of material law.
By the decision of the Satpayevsky City Court of the Karaganda region on March 25, 2021, B.M.'s claim to B.A. for the dissolution of marriage was satisfied. It follows from the materials of the case that the parties have two underage children, the defendant was sentenced for committing a crime to imprisonment for a period of 5 years, with serving his sentence in an institution of the correctional system of medium security since October 19, 2018.
Canceling the court's decision, in its decision dated June 28, 2021, the judicial Board for Civil Cases of the Karaganda Regional Court indicated that, by virtue of subparagraph 4) of paragraph 2 of Article 17 of the Code, the marriage between the parties in this case must be dissolved by the registration authorities.
On the basis of subparagraph 1) of Article 277 of the CPC, the proceedings were suspended due to the fact that the case is not subject to consideration in civil proceedings. B.M. explained the right to apply for divorce to the registration authority.
In the practice of the courts, there has been an unjustified termination of proceedings on the dissolution of marriage on the basis of subparagraph 1) of Article 277 of the CPC.
Thus, M.I. filed a lawsuit against Ch.T. for the dissolution of the marriage, arguing that the defendant, despite her lack of objections to the dissolution of the marriage, does not appear at the registration authority.
By the ruling of the Pavlodar City Court of March 19, 2021, left unchanged by the court of appeal, the proceedings were terminated, as the case is not subject to resolution in civil proceedings.
In terminating the proceedings, the courts argued that, by virtue of article 238 of the Code, the dissolution of a marriage between the parties in the absence of minor children and property claims is subject to resolution by the registration authority.
Whereas, by virtue of subparagraph 3) of paragraph 2 of Article 19 of the Code, a marriage (matrimony) is legally dissolved if one of the spouses, despite his absence of objections, evades the dissolution of the marriage (matrimony) by his actions or inaction.
The Supreme Court, pointing out that the local courts had unreasonably terminated the proceedings in the case, deprived M.I. of the constitutional right to judicial protection, overturned the local court's rulings and sent the case to the court of first instance for consideration on the merits. The courts did not take into account that the consideration of a claim for divorce is carried out in civil proceedings.
In the course of generalization, facts have been established when plaintiffs, abusing the right, without contacting the registration authority, indicating the existence of a dispute over the division of property with low value, ask to consider the case in court. The courts are obliged to accept such claims for consideration.
Example: in 2022, the Ust-Kamenogorsk City Court received a claim from G.N. to Ts.A. for the dissolution of marriage and the division of jointly acquired property. The parties have no children together, and the marital relationship has been terminated. The plaintiff asked to terminate the marriage in court, since there is a jointly acquired property, a cell phone worth 79,000 tenge, which he asked to share.
By a court decision dated May 26, 2022, the claim was satisfied, the marriage was dissolved and the cell phone was separated by leaving the defendant and collecting the value in favor of the plaintiff, that is, 39,500 tenge.
In other cases, when considering the case, the plaintiffs reject the claim regarding the division of property, but insist on the dissolution of the marriage in court.
Thus, by the ruling of the Taldykorgan City Court of December 27, 2022, T.Z.'s claim to T.T. for the dissolution of marriage and the division of jointly acquired property was left without consideration.
Due to the circumstances of the dispute, the parties have been in a registered marriage since 1996, the marital relationship has actually been terminated, they do not have any minor children together, and the defendant refuses to terminate the marriage voluntarily with the registration authority.
The court accepted the claim for production, since the plaintiff indicated the division of jointly acquired property (household appliances).
Subsequently, at the request of the plaintiff, the claim regarding the division of property was left without consideration, which indicates the absence of a property dispute between the parties, and the plaintiff did not provide evidence of the defendant's evasion from the dissolution of the marriage at the registry office and his proper notification of the need to appear before the specified body, the claim was left without consideration to settle the dispute out of court.
The validity of leaving the claim without consideration in this case is questionable, since at the time of filing the claim for divorce there was a dispute over property, the state fee was paid, formally everything complies with the Code and there are no grounds for leaving the claim for divorce without consideration, the plaintiff did not have to comply with an out-of-court procedure, since the claim for divorce was filed properly if there is a property dispute.
The study of the cases showed that the plaintiffs, indicating in the claim the existence of a property dispute, avoid contacting the registration authorities, pursuing the goal of a quick and economical resolution of the dispute in court (deadlines, state fee).
By virtue of paragraph 1 of Article 17 of the Code, the dissolution of a marriage (matrimony) in the registration authorities is carried out if the spouses do not have common minor children and property and other claims against each other.
Since the division of property is the property rights of the spouses, and the dissolution of marriage is a personal non-property right, in the absence of minor children, the state of marriage and the termination of marriage affect only the rights of the spouses, therefore, the possibility of their realization should not be related to the property rights of the spouses that arose during the marriage. Moreover, the division of property can be carried out both after the dissolution of the marriage and during the period when the spouses are married, such a dispute may take place, but the Code does not link the right to file a claim for division of property and the possibility of such a division only in court with filing a claim for divorce. Therefore, the possibility of divorce by the registering authority in the presence of property claims should not be excluded.
In this regard, it is necessary to amend the Code by deleting the words "and in the absence of property and other claims against each other" from paragraph 1 of Article 17, as well as deleting subparagraph 4) of paragraph 2 of Article 19.
Analysis of statistical data showed an increase in the number of returned claims due to the plaintiffs' failure to comply with the out-of-court procedure for resolving a dispute over a marriage in the absence of minor children and property disputes, including due to repeated claims from the same plaintiff, when earlier claims had already been returned by judges on the same grounds.
Thus, Zh.G.'s lawsuit against Zh.L. for the dissolution of marriage, which was first filed with the Oktyabrsky District Court of Karaganda on May 27, 2021, was returned on the basis of subparagraph 1) of part 1 of Article 152 of the CPC, due to non-compliance with the pre-trial or out-of-court dispute settlement procedure established by law for this category of cases, and the possibility of applying this procedure has not been lost. This claim was re-filed in court on July 19, 2021, and was returned on the same grounds. The lawsuit was filed for the third time on August 5, 2021 and was also returned on the basis of subparagraph 1) of part 1 of Article 152 of the CPC.
There are similar examples in other courts.
By virtue of paragraph 2 of the Regulatory Decree, the original marriage (matrimony) certificates, copies of the children's birth certificates, documents on earnings and other sources of income of the spouses, and other necessary documents are attached to the claim for divorce. When filing a claim in electronic format, the original of the marriage certificate must be submitted to the court before the claim is accepted into court proceedings.If the original marriage certificate is not submitted, the application must be returned.
An analysis of the above norm indicates that the judge, when accepting a claim for court proceedings, is obliged to check the compliance of the claim for divorce in form and content with the requirements of the CPC and make sure that all documents provided for by law are attached to the application. Otherwise, such a statement is subject to return with reference to subparagraph 3) of the first part of Article 152, in accordance with the procedure provided for in the second part of Article 152 of the CPC.
Example: A.A. filed a lawsuit against G.Zh. for the dissolution of the marriage.By the decision of the Atyrau City Court dated February 21, 2022, the search was returned with all attached documents in connection with the failure to present the original marriage certificate.
There are facts of the courts' decision to dismiss the claim on the grounds of failure to provide the original certificate of imprisonment, whereas the failure to provide this document in itself cannot indicate the groundlessness of the claimed claim.
Thus, by the decision of the Aktobe city Court of November 9, 2021, the claim against, .Z. to the defendant N.M. on the dissolution of marriage was dismissed. It can be seen from the contents of the decision that the reason for rejecting the claim was the failure to present the original marriage certificates.
A refusal to satisfy a claim only in connection with the failure to present the original of the marriage certificate is not lawful, since the court may refuse to satisfy the claim if the claim is groundless and on the grounds provided for by the Code.
In this case, in order to prepare the case for judicial review, the judge should have requested the original certificate of marriage (matrimony).
In accordance with subparagraph 3) of part 1 of Article 152 of the CPC, the court shall return the statement of claim if the statement of claim does not comply with the requirements of Article 148 of the CPC, subparagraphs 1), 2) 3) and 5) of Part one, parts 1-1 of Article 149 of the CPC and it is established that it is impossible to eliminate deficiencies at the stage of preparing the case for trial.
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