NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of April 28, 2000 No. 5

About application of the legislation by courts by hearing of cases about annulment of marriage (matrimony)

Considering that by hearing of cases about annulment of marriage (matrimony) courts have questions connected using regulations of the Code of the Republic of Kazakhstan "About scrap (matrimony) and the family" (further - the Code) regulating the termination of scrap (matrimony), recognition its invalid and decides the property relations of spouses (the former spouses), the Plenum of the Supreme Court:

1. Explain that owing to Item 1 of article 16 of the Code consideration in courts of cases on annulment of marriage (matrimony) is made in the claim of one or both spouses.

In cases if it is required by protection of interests of the incapacitated spouse, the action of rescission of scrap (matrimony) can be made by his guardian or the prosecutor. According to Article 56 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK) the court can recruit in such process the body performing functions on guardianship or custody for making the corresponding conclusion on case.

2. The action of rescission of scrap (matrimony) shall meet the requirements of Article 148 GPK. In it, in particular, it is specified when and where scrap (matrimony) is registered whether there are general children, their age, whether the agreement on that with which of them minor children will live, on payment procedure of funds for content of children and (or) the disabled needing spouse, about the sizes of these means or about the Section of common property of spouses, motives of annulment of marriage (matrimony) in the absence of mutual consent on its termination is reached by spouses whether other requirements which can be considered along with the action of rescission of scrap (matrimony) are imposed. Are attached the certificate on marriage (matrimony) to the claim if it was issued on paper, copies of certificates of birth of children, documents on earnings and other sources of the income of spouses, other necessary documents.

In the action of rescission of scrap (matrimony) of the spouses who do not have general minor children and property and other claims to each other it is specified about lack of consent of the defendant to annulment of marriage (matrimonies) in registering bodies, foreign institutions of the Republic of Kazakhstan according to the procedure of Item 2 of article 238 of the Code or on evasion from annulment of marriage (matrimony), despite the absence of at it objections.

3. Draw the attention of courts to obligation of thorough training of cases on annulment of marriage (matrimony) to legal proceedings. The judge, having accepted the claim, shall call, as a rule, the second spouse and find out its relation to this claim whether he is available for spouses of other subjects to permission court of matters of argument, to explain what of requirements can be considered along with the action of rescission of scrap (matrimony).

4. According to Item 2 of article 16 of the Code the satisfaction of the claim of the husband for annulment of marriage (matrimony) is impossible without the consent of the wife both during her pregnancy and within the first year of life of the child. However, the specified restriction does not belong to cases when the child was born the dead or did not live about one year. In either case the judge has no right to refuse acceptance of the claim.

5. One of cases of annulment of marriage (matrimony) judicially the Code provided availability of property claims of spouses to each other. Property claims are understood as disputes on the Section of common property, payment of funds for content of the disabled spouse, and also minor children.

6. According to Item 1 of article 17 of the Code annulment of marriage (matrimonies) by mutual consent of the spouses who do not have general minor children is made in registering body, foreign institution of the Republic of Kazakhstan in the absence of property and other claims to each other.

Annulment of marriage (matrimonies) judicially is made in cases:

availability at spouses of general minor children, except as specified, stipulated in Item 2 articles 17 of the Code;

lack of consent of one of spouses to annulment of marriage (matrimonies);

if one of spouses, despite the absence of at him objections, the actions or failure to act evades from annulment of marriage (matrimony);

availability of property and other claims of spouses to each other (Item 2 of article 19 of the Code).

Courts should mean that for appeal to the court with the action of rescission of scrap (matrimony) of the spouses who do not have property and other claims to each other and general minor children, it is necessary to produce the evidence confirming refusal of the defendant to dissolve marriage (matrimony) in registering body, foreign institution of the Republic of Kazakhstan, or its evasion from annulment of marriage (matrimony), despite the lack of objections.

About lack of consent of the defendant to annulment of marriage (matrimonies) in registering body, foreign institution of the Republic of Kazakhstan according to the procedure of Item 2 of article 238 of the Code the documents confirming the address of the spouse with the declaration of avoidance of scrap (matrimony) in registering body, foreign institution of the Republic of Kazakhstan are submitted.

In case one of spouses, despite the absence of at him objections, evades from annulment of marriage (matrimony), for example, refuses to submit the joint statement on annulment of marriage (matrimony) or the separate statement when it has no opportunity personally to be in registering body, foreign institution of the Republic of Kazakhstan for submission of the joint statement and also when it is not in registering body, foreign institution of the Republic of Kazakhstan after month after filing of application, marriage (matrimony) is dissolved judicially.

In this case the claimant shall attach to the claim of the proof, testimonial of evasion of the defendant from annulment of marriage (matrimony) in registering body, foreign institution of the Republic of Kazakhstan. Data of registering body, foreign institution of the Republic of Kazakhstan on lack of the statement of spouses for annulment of marriage (matrimony) or on its absence for annulment of marriage (matrimony) after month after filing of application belong to such proofs.

In the absence of such proofs the statement is subject to return with reference to the subitem 1) of Article part one 152 GPK in view of non-compliance with the dispute settlement established by the law for this category of matters in pais.

7. No. 2 is excluded according to the Normative resolution of the Supreme Court of the Republic of Kazakhstan of 31.05.12

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