The war has no mercy. It has torn apart thousands of Ukrainian marriages. Combined with depression and anxiety provoked by the war raging in Ukraine, it may be quite an issue to go through the legal procedure of dissolution of marriage in wartime if one of the spouses is on the other side of the so-called demarcation line, i.e., within the territory that is not temporarily controlled by Ukrainian authorities.
Though it was still possible in 2014 and thereafter to leave and come back to the temporarily occupied territories, once the Russian Federation has started its full-scale armed invasion against Ukraine on 24 February 2022, such movements have been practically stalled. Therefore, so far it is impossible for people who seek a divorce to visit a Ukrainian civil registry body or court if they are in the occupied territory. So, what can be done about the situation like this? We are going to tell you now!
A person in the occupied territory: what are divorce options possible?
We remind that a marriages are usually dissolved in the following ways:
- through civil registry bodies, if there are no minor children in common and both spouses give their consent to the divorce;
- through a court under a joint petition, if there are minor children, but both spouses wish to put their matrimony to an end;
- through a court, on the initiative of one of the spouses.
If one of the spouses is in the temporarily occupied territory, the first two options are no longer available. The third one is the only. However, there is no rule without an exception.
In general, we can distinguish three options to get divorced with a person who stayed in the territory not controlled temporarily by Ukrainian authorities:
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Such person visits the controlled territory and goes through the relevant procedure with a civil registry office or court.
N.B. The divorce procedure must be completed within the territory controlled by Ukraine. Otherwise, the divorce as such and the document proving it will not be recognized as legitimate in Ukraine, nor will they have any legal effect nor give rise to any legal consequences.
- One of the spouses who is not in the temporarily occupied territory applies to a court unilaterally proceeding on the basis of Article 110 of the Family Code of Ukraine (the “Family Code”).
- One of the spouses obtains a document evidencing the dissolution of marriage in the temporarily occupied territory and then arranges for filing a claim with a court in the controlled territory for recognizing a legally significant fact (i.e., the fact of dissolution of the marriage).
For your information: The court reviews cases over the establishment of the fact that the marriage was registered or dissolved or those related to child adoption by following the provisions set out in Article 315 (1) (4) of the Civil Procedure Code of Ukraine (the “Civil Procedure Code”).
However, it is the second option only that may be considered as widespread and effective, while the others are used to a very limited extent. So, we will focus on the second option in more details. Alva Privacy lawyers prefer following this very option when the client hires the online divorce services.
How may a marriage be dissolved unilaterally?
A court may order to dissolve the marriage under Article 110 of the Family Code if the person in the temporarily uncontrolled territory cannot be contacted, such person does not give his or her consent to the dissolution of marital relations and in view of certain other circumstances.
Important! An action may be brought with court by way of Article 110 of the Family Code unless the following two conditions are met:
- the wife is pregnant;
- there is a child less than one year old.
However, if one of the spouses committed violence or another criminal offense against the other or the child, the above conditions are not applicable.
Thus, for the vast majority of cases, there is no obstacle to get divorced under Article 110 of the Family Code. Moreover, this procedure is available to those who are in Ukraine not alone but individuals who departed abroad (and, in particular, when one of the spouses stays in the temporarily occupied territory while the other is granted temporary protection in an EU country).
For your information: The e-Court remote system has been widely used in Ukraine since 2020. Given this, a petition for absentia trial (in absence of the parties) may be filed together with the statement of claim, in which the parties describe their positions in relation to the claims raised.
What should be taken care of when the marriage is dissolved in such a way?
Divorce cases involving one of the spouses who is in the territory not controlled temporarily by Ukrainian authorities are categorized as complicated. Although there is a general approach to them, some issues require special attention. A person who has no relevant education background and experience in the practice of law would hardly be able to handle them on his or her own.
Here are some examples of the issues to be always kept in mind:
Venue: which court should a divorce petition be filed to?
Article 27 of the Civil Procedure Code states that a claim must be filed at the respondent's registered place of residence or stay. You could have done so but the respondent is in the territory not controlled temporarily by Ukrainian authorities. Fortunately, the case hearing powers of a court that is no longer located within the controlled territory are now transferred to one of the courts operating within the controlled territory. More detailed information about this can be found at the website of the Supreme Court. In addition, if the claimant raises minor children, then he or she may file a claim at his or her location rather than the respondent’s one.
Divorce petition: how to make it correctly?
When drafting a divorce petition, it is necessary to take into consideration the requirements set forth in Article 175 of the Civil Procedure Code and make a reference to the special ground defined in Article 110 of the Family Code. In view that the respondent is in the temporarily occupied territory, the petition must expressly refer to the circumstances that prevent from establishing his or her whereabouts.
For your information: In accordance with Article 121 (1) of the Law of Ukraine on Securing Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine, if the last known address of the parties involved the case falls within the temporarily occupied territory, the court shall notify the parties to the case of the date, time and place of the first hearing through an announcement that must be posted on the official website of the Ukrainian judiciary no later than 20 days prior to the date of the relevant hearing in the court.
Simplified procedure without summoning the parties: why is this the most desirable option?
The case hearing in such a manner is about the least of worries, especially when the claimant has hired an experienced attorney-at-law. In fact, the claimant needs to do nothing but provide the relevant documents to the lawyer. The case hearing timing (the terms given below are merely tentative, the real ones depend on the work loading of a specific judge):
- without summons of the parties, usually from 1 to 3 months;
- with summons of the parties, from 2 to 6 months.
Not all of the judges adhere to the approach that the case may be heard without summons of the parties.
Conclusion: to get divorced with a person who is currently in the temporarily occupied territory is like to answer an “extra credit” question. But the solution is quite feasible. As a matter of practice, not all family lawyers are eager to take on such cases. However, as you are surfing the Internet and have come to visit the website of Alva Privacy law firm, so you have just found the right specialists who can help you. For more information, please feel free to ask for a consultation!
