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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of June 22, 2000 No. 5

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

(as amended on 27-09-2018)

Having considered materials of generalization of court practice on cases on annulment of marriage and in view of that in case of application of the new Code of the Republic of Belarus about scrap and family *) and other acts of the legislation courts have questions requiring explanation, the Plenum of the Supreme Court of the Republic of Belarus decides:

________________________

*) Further in the text - Code.

1. For the purpose of fulfillment of requirements of the legislation on scrap and family on strengthening of family, protection of the rights and interests of children courts by hearing of cases about annulment of marriage need to take the exhaustive measures directed to conciliation of spouses and preserving family, and in case of the dispute resolution about education and content of children to proceed from priority of their interests according to rules of international law and the Constitution of the Republic of Belarus.

2. Owing to Art. 35 of the Code annulment of marriage is inadmissible during pregnancy of the wife and before achievement of three years by the child of age without written consent of other spouse on annulment of marriage provided that he lives with the child and performs parent care of it, except as specified, when paternity in relation to the child is recognized as other face or by a court decision the information about the husband as about the father of the child are excluded from the birth statement of the child. At the same time inadmissibility of annulment of marriage on the bases established by Art. 35 of the Code does not interfere with the appeal of the husband to court and initiation of proceedings about annulment of marriage.

3. The action for declaration about annulment of marriage shall conform to requirements st.st.109 and 243 GPK. In it, in particular, it is specified when and where scrap is registered whether there are general children, their age, motives of annulment of marriage, other requirements which can be considered along with the action of rescission of scrap are stated. Discrepancy of the statement to the specified requirements is the basis for leaving of the statement without movement (the Art. 248 GPK).

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 required materials.

In the action for declaration about annulment of marriage of the spouses who do not have general minor children and dispute on property it is specified about lack of consent of the defendant to annulment of marriage by the body registering acts of civil status according to the procedure of Art. 35-1 of the Code.

4. The statement for initiation of proceedings for annulment of marriage is filed a lawsuit, as a rule, at the place of residence of the defendant (the Art. 46 GPK).

If with the claimant there are minor children or when for health reasons departure of the claimant to the residence of the defendant is difficult, - in the place of his residence (the p. 10 of the Art. 47 GPK).

The action for declaration about annulment of marriage with person condemned to imprisonment is shown at the last place of residence of person before his condemnation.

The action of rescission of marriage with person recognized in the procedure established by the law it is unknown absent, incapacitated, and also with person condemned to imprisonment for the term of at least three years it can be shown at the place of residence of the claimant (the p. 9 of the Art. 47 GPK).

The action of rescission of marriage with person which residence is unknown or which does not take the residence in the Republic of Belarus can be shown in the location of its property or in the last known place of his residence in the Republic of Belarus (p.1 to the Art. 47 GPK).

5. In the absence of the bases for refusal in initiation of proceedings according to the declaration of avoidance of scrap the judge takes out determination about initiation of proceedings and provision to spouses of three-months term for taking measures to conciliation, and also for reaching an agreement on minor children and property. During the term provided for conciliation, the judge has the right to make the actions for preparation of case for legal proceedings provided by the Art. 262 GPK.

In relation to the p. 3 of the Art. 150 GPK current of three-months term begin next day after removal of determination about initiation of proceedings.

The copy of determination about initiation of proceedings and provision to spouses of term for conciliation and the copy of the action for declaration go court to other spouse. The specified determination cannot be appealed and protested in appeal procedure.

6. It must be kept in mind that collection of the alimony for content of minor children is made, as a rule, according to the procedure of mandative production (item 2 p.1 the Art. 394 GPK).

Article 97 of the Code provides temporary collection of children maintenance based on determination of the judge. Therefore after initiation of proceedings about annulment of marriage or in judicial session in case of case adjournment the judge has the right to collect children maintenance temporarily.

Based on the judgment on annulment of marriage the alimony is collected by consideration of dispute between spouses on education and content of children (Art. 39 of the Code).

7. If after the three-months term of the spouse did not come to conciliation and the claimant did not refuse the submitted action for declaration about annulment of marriage, the judge appoints case to hearing.

The court has no right to reduce this term and to consider case before its expiration, except as in case of approach of the circumstances specified in Art. 37 of the Code.

Annulment of marriage before the expiration of the Code of three-months term provided by court according to Art. 36 is contempt of law and can entail cancellation of the judgment.

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