RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF UZBEKISTAN

of July 20, 2011 No. 06

About practice of application by courts of the legislation on cases on annulment of marriage

Practice of application by courts of the legislation by hearing of cases on annulment of marriage shows that courts generally correctly resolve the disputes following from family legal relationship. At the same time, by hearing of cases of this category in court practice there are questions connected using the regulations of the legislation regulating the scrap termination, recognition its invalid and also the property relations of spouses in the conditions of liberalization of economy.

For the purpose of ensuring the correct and uniform application by courts of the legislation by hearing of cases on annulment of marriage, being guided by article 17 of the Law "About Courts", the Plenum of the Supreme Court of the Republic of Uzbekistan decides:

1. Draw the attention of courts that recognition in the Constitution of the Republic of Uzbekistan of family as main cell of society, availability of regulations in it about guarantees of protection of family by the state confers on courts the heavy responsibility by hearing of cases, following from the matrimonial relations.

Courts, proceeding from the tasks following from the family legislation shall take all measures provided by the law to strengthening of family, protection of the rights and the interests of spouses and their children protected by the law.

2. Explain that according to article 37 of the Family code scrap stops owing to death or the announcement court of one of spouses the dead.

During lifetime of spouses scrap can be stopped by its termination according to the statement of one or both spouses. In necessary cases if it is required by protection of interests of the incapacitated spouse, the declaration of avoidance of scrap can be submitted by his guardian.

3. Owing to article 42 SK in case of mutual consent of the spouses who do not have general minor children, annulment of marriage is made in bodies of civil registration (further in the text - bodies of the REGISTRY OFFICE), except as specified, when between spouses there is dispute on content payment to the needing disabled spouse or on the Section of common property.

4. According to article 43 SK annulment of marriage according to the statement of one of spouses is made in bodies of the REGISTRY OFFICE, irrespective of availability at them general minor children if other spouse:

it is recognized as court it is unknown absent;

it is recognized as court incapacitated owing to mental disturbance (sincere disease or weak-mindedness);

it is condemned to imprisonment for the term of at least three years for crime execution.

In the presence of any of the specified bases the body of the REGISTRY OFFICE has no right to refuse the requirement about annulment of marriage. The exception is constituted by cases when between spouses there is dispute on children, on payment of funds for content of the disabled needing spouse or on the Section of the property which is their common joint property.

5. Explain that in all cases provided by part two of Article 42 and part two of article 43 SK annulment of marriage is made judicially.

Annulment of marriage judicially can take place and in some cases when such question is carried to competence of bodies of the REGISTRY OFFICE, in particular, if one of spouses refuses to submit the declaration of avoidance of scrap or has no opportunity to be personally in body of the REGISTRY OFFICE for filing of application or, having submitted the application, is not for registration of annulment of marriage. Availability of such circumstances can be confirmed with the reference of bodies of the REGISTRY OFFICE, self-government institutions of citizens, etc.

It must be kept in mind that the procedure for annulment of marriage established in part one of article 43 SK in bodies of the REGISTRY OFFICE does not extend to cases of annulment of marriage with persons limited in capacity to act owing to abuse of alcoholic drinks, drugs or psychotropic substances. Annulment of marriage in the claims made to specified persons and also for claims of these persons is made judicially.

6. In case of adoption of the action for declaration about annulment of marriage it is necessary to consider that according to article 39 of the Family code the husband having no right without the consent of the wife to initiate proceedings on annulment of marriage during her pregnancy and within one year after the child's birth even if it is not written down by the child's father in the blotter about the birth. This provision extends also to cases when the child was born the dead or died, without having lived up to age of one year.

In the absence of the consent of the wife to initiation of proceedings on annulment of marriage, the judge refuses adoption of the action for declaration and if it was accepted, the court leaves the statement without consideration based on Item 8 of Article 122 GPK. The statement is subject to leaving without consideration and in case during legal proceedings of the proceedings on annulment of marriage initiated with the consent of the wife she expressed disagreement with annulment of marriage and also when pregnancy of the defendant and lack of its consent to annulment of marriage became known when considering the case in appeal or cassation instance.

Leaving of the action of rescission of scrap without consideration does not interfere with repeated appeal to the court with the action of rescission of scrap if the circumstances specified in article 39 of the Family code disappeared afterwards.

It must be kept in mind that availability of the circumstances specified in article 39 of the Family code does not interfere with initiation of the action of rescission of scrap from the wife.

7. Explain to courts that claims for cases on annulment of marriage are, as a rule, made in court at the permanent address of the defendant, and in cases, stipulated in Article 34 GPK - at the choice of the claimant. In particular, the action of rescission of scrap can be made with person:

the convict to imprisonment, irrespective of the punishment term (if case is subordinated to court), - at the last place of residence of the specified person before his condemnation;

which residence is unknown, - in the last known place of his residence or in the location of its property and in case with the claimant there are minor children or departure to the residence of the defendant is for health reasons difficult to it - at the place of residence of the claimant;

not taking residences in the Republic of Uzbekistan, or left the country, - in the location of its property or the last known place of his residence in the Republic of Uzbekistan.

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