Divorce and Matrimonial Property

Russian law of divorce has abolished  the concept of fault  of one of the spouses as a requirement for divorce  since the Decree 1917 Regarding Divorce.  Since then the concept of “no-fault divorce” has permanently  remained in the Russian family legislationn regardless of all its modifications and amendments. So the Chapter IV of the current Russian Family Code which was adopted in 1995, and the Code of Civil Procedure which  lay   down the conditions and procedure of divorce, follow the ‘no-fault divorce’ concept. First of all, a divorce can be made  through an administrative  procedure (i) or a court procedure (ii).

(i) A civil acts officer (or a Russian consul if spouses live abroad) is competent to grant an administrative divorce under one of the following grounds:

(ii) If the couple has common minor children, the divorce is granted through a court procedure in a district court at the choice of a claimant:

According to art. 22 of the Family Code  an irretrievable marital break-down is to be established in court. While evaluating the marital break-down, a court may take into account the following circumstances:

But if both spouses are consent the court may grant  divorce without evaluating the marital break-down and its causes (art. 23 of the Family Code). In addition to the Family Code and Code of Civil Procedre,  it is the Decree of the Plenum of the Supreme Court of the 5th November 1998 No 15 “Regarding Applilcation by Courts of Legislation on Divorce”,  which further clarify material and procedural conditions and requirements  of divorce.

In fact, about 80% of all the divorces  are made through court procedure – see the Explanatory Note to the Draft Bill No 1056247-6  “On  Amendments to the Family Code and Article 233 of the Code of Civil Procedure “.  It is interesting to note that the legislator made an effort in this Draft  Bill (which failed) to strenghen the position of marriage by prolonging the period of divorce registration by a civil acts officer  from one month to three months and  by prolonging the court procedure up to 6 months to allow spouses to  think over the decision to end their marriage.

Still, the Federal Law on Mediation 2010 states that mediation is possible in family law disputes.  Despite the fact that several regions have launched pilot projects for family mediation (mainly for an administrative procedure), which proved to be rather a  success,  family mediation  is very seldom used in court  practice  (in less that 1% of family disputes in 2015,according to the statistics of the Russian Supreme Court).

It remains to mention that dividing  matrimonial property  involves an application of different branches of law. So, the regime of matrimonial property is regulated in the Family Code, but dispositions  regarding the acquisition, possession, use of property in joint ownership are regulated by articles  of the Civil code. To avoid discrepancies and to further the more consistent court practice, the Draft Bill No. 835938-7 “On Amendments to Certain Legislative Acts of the Russian Federation (regarding matrimonial property)” which is now under the second stage consideration in the State Duma,  aims to bring the norms of family law governing matrimonial property in line with the rules of civil law, bankruptcy law and state registration of real estate.

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