of November 5, 1998 No. 15
About application of the legislation by courts by hearing of cases about annulment of marriage
By hearing of cases about annulment of marriage courts have questions connected using the regulations of the Family code of the Russian Federation regulating the scrap termination, recognition its invalid and also the property relations of spouses (the former spouses). Considering it, the Plenum of the Supreme Court of the Russian Federation for the purpose of ensuring the correct and uniform permission of cases of this category decides to make to courts the following explanations:
1. In case of adoption of the action for declaration about annulment of marriage the judge needs to consider that according to the Art. 17 IC RF the husband has no right without the consent of the wife to initiate proceedings on annulment of marriage during pregnancy of the wife and within one year after the child's birth. This provision extends also to cases when the child was born the dead or died before achievement of age of one year by it. In the absence of the consent of the wife to consideration of the case on annulment of marriage the judge refuses adoption of the action for declaration and if it was accepted, the court stops proceeedings (item 1 p.1 of the Art. 134, paragraph 2 of Art. 220 of the CCP of the Russian Federation). The specified determinations are not obstacle to repeated appeal to the court with the action of rescission of scrap if the circumstances listed in the Art. 17 IC RF disappeared afterwards.
2. Annulment of marriage by mutual consent of the spouses who do not have general minor children owing to item 1 of the Art. 19 IC RF is made in bodies of civil registration irrespective of availability or absence between spouses of dispute on the Section of the property which is their common joint property, about payment of funds for content of the disabled needing spouse. The exception is constituted by cases when one of spouses, despite the absence of at it objections, evades from annulment of marriage, for example refuses to submit the joint statement on annulment of marriage or the separate statement in case it has no opportunity personally to be in body of civil registration for submission of the joint statement (item 2 of the Art. of 21 IC RF, Art. 33 of the Federal Law of November 15, 1997. "About acts of civil status").
3. The provided item 2 of the Art. 19 IC RF procedure for annulment of marriage in bodies of civil registration with persons, acknowledged incapacitated owing to mental disturbance, does not extend to cases of annulment of marriage with persons limited in capacity to act owing to abuse of alcoholic drinks or drugs. Annulment of marriage in the claims made to specified persons and also for claims of these persons is made in general procedure.
4. Cases on annulment of marriage with persons condemned to imprisonment are considered, in case of jurisdiction of these cases to court, with observance of general rules about cognizance. If the action for declaration about annulment of marriage with person condemned to imprisonment is accepted by court to production according to Art. 28 of the CCP of the Russian Federation, then it is necessary to come from the last residence of the specified person before his condemnation.
5. The action of rescission of marriage with person which place of residence is unknown can be shown at the choice of the claimant, that is at the last known place of residence of the defendant 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, - in the place of his residence (h p.1 and the 4th Art. 29 of the CCP of the Russian Federation).
6. Considering that owing to item 2 of the Art. 19 IC RF annulment of marriage with persons, acknowledged is unknown absent, irrespective of availability at spouses of general minor children, it is made in bodies of civil registration, in case of the address with such claim to person concerning whom within year in the place of his residence there are no data on the place of its stay, the judge explains to the claimant procedure for recognition of citizens is unknown absent (Art. 42 of the Civil Code of the Russian Federation).
However, if the spouse does not wish to take a legal action with the statement for recognition of other spouse is unknown absent, the judge has no right to refuse adoption of the action for declaration about annulment of marriage, and shall consider the claim in accordance with general practice.
7. The action for declaration about annulment of marriage shall meet the requirements of the Art. of the Art. 131, 132 CCP of the Russian Federation. In it, in particular, it is specified when and where scrap is registered; whether there are general children, their age; whether the agreement on their content and education is reached by spouses; in the absence of mutual consent on annulment of marriage - motives of annulment of marriage; whether there are other requirements which can be considered along with the action of rescission of scrap. Are enclosed to the application: the certificate on marriage, the copy of certificates of birth of children, documents on earnings and other sources of the income of spouses (if the requirement about collection of the alimony is declared) and other necessary documents.
8. Having adopted the declaration of avoidance of scrap, the judge on each case shall carry out preparation for legal proceedings according to the procedure, the CCP of the Russian Federation provided by Chapter 14.
9. In case of adjournment of trial of case on annulment of marriage and collection of children maintenance in connection with purpose of term for conciliation of spouses it is necessary to find out whether the defendant participates in content of children. If the court determines that the defendant does not carry out this obligation, he has the right to issue according to the Art. 108 IC RF the decree on temporary collection from the defendant of the alimony before final consideration of the case about annulment of marriage and collection of the alimony.
10. On cases on annulment of marriage in cases when one of spouses does not agree to the scrap termination, court according to item 2 of the Art. 22 IC RF have the right to postpone case trial, having appointed spouses term for conciliation within three months. Depending on the facts of the case the court has the right at the request of the spouse or on own initiative to postpone case trial several times with that, however, that in total the period of time provided to spouses for conciliation did not exceed the three-months term established by the law.
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