With the start of the full-scale war, the courts, when hearing divorce cases involving military members, are increasingly receiving petitions in which one of the parties (usually the respondent) requests a stay of the proceedings due to his service in the Armed Forces of Ukraine. Technically, it looks like a sufficient basis but practically it is not always lawful. More so when it comes to exercising personal non-property rights.
In this article, we are going to examine cases, in which the court actually has the right to stay the proceedings, what evidence a military service member must provide, what differences the participation through an attorney may have, and why a stay of divorce proceedings is a complicated and delicate issue that can turn into a sort of procedural abuse.
When the court can put on hold the proceedings due to the respondent's service in the Armed Forces of Ukraine
The procedural law (Civil Procedure Code of Ukraine) mandates a stay of proceedings if a party is in military service. Such a rule is set forth in Article 251 (1) (2) of the Civil Procedure Code of Ukraine. However, the mere status of military member does not imply that the case should be put on hold immediately. By the way, Alva Privacy Law Firm has already analyzed the situation when military service did not result in suspending an alimony case, which is similar to this one.
In order for the court to conclude that the proceedings should be stayed, the respondent must provide proper and sufficient evidence to prove that he or she is in military service not only but the fact that such service:
- takes place in a military unit that is put on a war footing or engaged in active combat operations;
- prevents him or her from participating in court proceedings (in particular, even remotely);
- makes it impossible for such military member to instruct an attorney to act for him or her.
If proper confirmation is unavailable the application for a stay may not be granted.
What documents confirm that it is impossible to participate in the proceedings due to military service?
Based on our practical experience of managing such cases, we can say that on multiple occasions respondents submit in support of their petitions extracts from orders issued by the military unit commander or general-purpose certificates. However, as part of the case law already shaped, the Supreme Court has repeatedly stressed that it is specifically a personnel order issued in accordance with the Regulation approved by Presidential Decree No. 1153/2008 that constates a piece of proper evidence (Supreme Court's resolution of 14 February 2024 in case No. 466/8799/22).
Such order must:
- be personified, i.e., contain identifiable data of a specific person;
- state that the military unit has been put on a war footing;
- confirm that the respondent is engaged in combat missions;
- contain information proving that it is practically impossible for the military service member to participate in the proceedings.
If these details are missing or the documents provided are of general nature, the court has no lawful ground to stay the proceedings.
When the respondent acts through an attorney the court is not required to pause the trial
Although Article 251 of the Civil Procedure Code of Ukraine states that a court is required to stay proceedings if the party is in the Armed Forces of Ukraine, the case law (including the position upheld by the Supreme Court) points out that representation in court, specifically, through an attorney who takes active procedural actions affords a basis to conclude that there are no obstacles to exercise the right of defense (Supreme Court's resolution of 13 March 2025 in case No. 557/1226/23).
If the respondent is able to file motions through an attorney, then he or she is in position to exercise his or her procedural rights. Accordingly, there are no objective reasons to postpone the trial. Such an approach promotes the law enforcement compromise between formalistic contents of the rule in Article 251 of the Civil Procedure Code of Ukraine and the constitutional principles of access to justice, having a trial within a reasonable time, and the ban on abuse of procedural rights.
In practice, this position has been defended on multiple occasions in cases in which Alva Privacy acted for the claimant, while the respondent, though being on active military service, was still able to take procedural actions through an attorney. Thus, it appears quite reasonable to ask the court to reject the application for a stay by referring to no actual obstacles for the defense.
Why it is not each and every divorce case that can be suspended "automatically"
We should focus our attention especially on marriage dissolution cases. They are not just regular civil cases with the disputes being about property rights or obligations. The matter in dispute involves the exercise of personal right to dissolve the marriage, which right cannot be limited or blocked artificially, in particular, by way of staying the proceedings.
Marriage is a voluntary union: neither of the parties may be forced unless he or she wishes to do so!
In Ukraine, the marriage is founded on voluntary consent of a man and a woman (Article 24 of the Family Code of Ukraine). If at least one party no longer intends to go on with the marriage, the court must state that the couple may not live together any further.
If so, the fact that the other party is unavailable (or gives no consent to divorce) does not affect the matter in dispute. The court will have to ascertain merely whether the couple cannot in fact live together. If the marital relationship has actually ended, the couple does not maintain a common household, and the claimant finds no sense in preserving the family, then the marriage will be inevitably dissolved.
Thus, even if the proceedings are stopped, the court will have to deal with the same situation after they are resumed. That is why the stay does not affect the legal points but merely postpones the practical implementation of the intention that is already obvious and restricts the claimant who initiated the dispute from enjoying the right to a hearing within a reasonable time.
The law allows postponement for a limited period only – time for reconciliation
The procedural law explicitly states that in divorce cases the court may give the parties time for reconciliation up to six months (Article 240 (7) of the Civil Procedure Code of Ukraine). This is the only opportunity afforded by law to postpone the trial, which purpose is to protect family relationships.
Alternatively, if reconciliation appears unlikely and either of the parties declares his or her intention to dissolve the marriage, no other procedural delay can be justified, especially the one that imposes no definite time limits (for example, until the end of military service or until the war is over).
As martial law has been in effect for over three years, for many military personnel the prospects of their military service are indefinite in time. If a judge suspends divorce proceedings in wartimes upon such a pretext, the claimant would in fact be indefinitely prevented from enjoying the right to change his or her marital status in violation of the right to legal certainty.
Preserving the marriage forcibly by suspending the proceedings
This issue is of particular importance given the European standards. Article 8 of the European Convention on Human Rights guarantees that everyone has the right to respect for his private and family life. If a person does not wish to remain married but is forced to do so because of the legal process delayed, this is an unacceptable interference with private autonomy.
The same appears from Article 51 of the Constitution of Ukraine, and Article 56 of the Family Code of Ukraine – each of the spouses has the right to terminate the marital relationship. Coercing a spouse to preserve the marriage directly violates this rule.
Therefore, when considering an application for staying divorce proceedings, the court must verify technical evidence not alone but assess whether such procedural action can facilitate violation of the claimant's fundamental rights or not.
How to respond correctly to a stay application?
If the respondent filed an application for adjourning the trial due to the respondent's active service in the Armed Forces of Ukraine, the claimant has the right to submit written objections:
- analyzing the documents provided (availability of a personnel order, reference to martial law, combat missions, etc.);
- stressing that the respondent hired an attorney, if any;
- stating that the marriage has come effectively to an end and no reconciliation is possible;
- pointing out that the law mandates six months for reconciliation as the possible longest period;
- invoking the right to privacy and stating that the coercion into marriage is inadmissible;
- if necessary, offering a video conference with the respondent as an alternative to physical presence.
Proceeding from our own experience, we note that properly drafted objections will practically provide the court with all necessary arguments to dismiss the application.
Conclusion: divorce process may not be stopped without a good reason
Military service, even in a combat zone, is not an unconditional basis for suspending the proceedings. The law requires clear and compelling evidence and due account of the factual circumstances. As far as it comes to disputes over the termination of a marital relationship, the most important things are the claimant's personal will and the fact that the couple no longer lives together and has no prospects of reconciliation.
The suspension of divorce proceedings often brings no positive effects because it does not change the matter in controversy but merely locks the exercise of guaranteed right to divorce under false pretenses, in fact. A court must be guided by the principles of good faith, procedural equality, personal autonomy of the parties and adhere to the standards promulgated in the European Convention.
If the respondent attempts to deter the proceedings by filing formalistic applications for a stay, we recommend that you contact a lawyer who has practical experience and relevant expertise and is able to suggest proper arguments to support the claimant's case, defend claimant's interests and ensure that the legal process is resolved in a time-efficient way.
Written by Sofiia Ohiievych, Lawyer.
