Divorce during pregnancy: what legislative changes say

Divorce during pregnancy or in the first year of a child’s life has always been a sensitive issue, because during this period, a woman and a child are in a vulnerable position, needing special support. Previously, the legislation of Ukraine prohibited the dissolution of marriage in such situations, except for cases related to criminal offenses of one of the spouses. This regulation was considered a way to protect the family, but at the same time it raised many questions about the freedom of choice and the rights of each spouse. However, the innovation adopted by the Verkhovna Rada on November 20 fundamentally changes the approach to this issue. Draft Law No. 5492 abolishes restrictions on filing divorce lawsuits during the wife’s pregnancy or in the first year of the child’s life, introducing new principles for regulating family relations.
Lawyers of the “Repeshko and Partners” Bar Association commented on how these legislative changes will affect the protection of the rights of family members, whether they will be able to resolve legal and social conflicts during a divorce.
It was once written in a very famous classic work: “All happy families are alike, every unhappy family is unhappy in its own way.” The wedding took place, the wedding dress was sold, the gift money was used to buy a used car, and the first cup from the Chinese tea set given by my grandmother has already been broken. The young family could not cope with the first difficulties of married life, and the scary word – divorce – appeared on the agenda! The young wife is pregnant, the “happy” future father realizes that he is not yet ready to become a father, his relatives are hysterical… A story familiar to many!
It should be noted that according to the Family Code of Ukraine (SC of Ukraine) marriage is completely voluntary. No one can force marriage and no one can keep in marriage. According to the current norms of the SC of Ukraine, there is only one limitation – Article 110 – the right to file a lawsuit for divorce. It defines:
- A lawsuit for divorce can be filed by one of the spouses.
- A lawsuit for dissolution of marriage cannot be filed during the wife’s pregnancy and within one year after the birth of the child, except in cases where one of the spouses has committed illegal behavior that contains signs of a criminal offense against the other spouse or the child.
- The husband and wife have the right to file a lawsuit for divorce during the wife’s pregnancy, if the paternity of the conceived child is recognized by another person.
- A husband or wife has the right to file a lawsuit for divorce before the child reaches one year of age, if paternity is recognized by another person or, by a court decision, the information about the husband as the child’s father is excluded from the child’s birth certificate.
- The guardian has the right to file a lawsuit for divorce, if the interests of the spouse who is recognized as incapable require it.
At the same time, Article 111 defines court measures for the reconciliation of spouses: the court takes measures for the reconciliation of spouses, if this does not contradict the moral principles of society.
Therefore, according to the general rule, there is no question of divorce until the child is one year old. The specified limitation on the time of adoption was motivated by the fact that after the birth of a child, a woman is in an unprotected state, both materially and psychologically.
By the way, the legislation of European countries, which we are so eager to reach, contains the following restrictions on divorce:
In Latvia, one of the spouses can request a divorce if the other spouse: has been absent for at least one year, fell ill with an incurable mental or infectious disease, committed a criminal offense or committed an immoral act. Also, the marriage can be dissolved in the event of persistent relationship breakdown, living separately for three years.
Norwegian law establishes the principle of freedom of divorce, but divorce can be requested after living separately for more than a year or after ceasing to live together for two years.
In Denmark, the right to divorce arises in the following cases: after 6 months of separate residence, unless the spouses resume or continue cohabitation; when the spouses have been living separately for the past 2 years due to incompatibility; in case of adultery (unless the other spouse has given consent to such an act. In the absence of consent to divorce on this basis, the statute of limitations applies 6 months from the moment one of the spouses became aware of the infidelity and within 2 years after it was committed ); when one of the spouses committed intentional violence (or sexual assault) on the other spouse, children, close relatives of the spouses (the statute of limitations on this basis is established: one year after one of the spouses became aware of the act of violence and within 3 years after its commission ); when one of the spouses entered into a new marriage; if one of the spouses illegally took the child out of the country or illegally keeps it abroad.
A divorce in Ireland can be obtained if the court is satisfied that, on the date of the opening of the proceedings, the spouses have lived apart from each other for a period or periods of at least four years during the previous five years; there is no reasonable prospect of marital reconciliation; the termination is necessary taking into account the circumstances that exist or will arise for the spouse, children or any other person provided by law; other conditions established by law are met.
For a divorce in Italy, you need to confirm separate residence for 6-12 months, not only the child has the right to alimony, but also the wife, each region of the country has its own legal nuances regarding the division of joint property. Divorce takes place in court and can last not only for months, but also for years.
As you can see, it is actually more difficult to get a divorce in a European country than in Ukraine. But the legislator decided to go further – a law has now been adopted, which provides that the article in the Civil Code of Ukraine will look as follows: according to Article 110 of the Civil Code “a claim for dissolution of marriage can be filed by one of the spouses. The guardian has the right to file a lawsuit for dissolution of marriage, if the interests of the spouse who is recognized as incapable require it.” That is, it will be possible to dissolve the marriage without any restrictions!
However, they currently intend to bring the norms of procedural law into line, because Part 4 of Article 185 of the Civil Procedure Code of Ukraine states that a claim for divorce is returned in the event that it is filed during the wife’s pregnancy or before the child reaches one year without complying with the requirements established by the Family Code of Ukraine. This is necessary due to the fact that the dissolution of marriage between couples who have a minor child(ren) takes place in Ukraine exclusively by court order.
On November 20, the Verkhovna Rada of Ukraine adopted draft law No. 5492, which allows the initiation of divorce even during the wife’s pregnancy and during the first year after the birth of the child. This became possible thanks to amendments to Articles 110 and 111 of the Family Code of Ukraine. What motivated the people’s elected representatives to change this very norm of the law? The fact is that the topic of domestic violence has never been raised at the state level before. It is in recent years that it has gained wide publicity, consolidation at the legislative level and has already been quite successfully implemented in our everyday life.
Previously, it was believed that if a man hits a woman, then she herself is to blame – she said or did something wrong. But times have changed and not all laws have changed at once. At the same time, earlier legislation prohibited divorce during pregnancy, except in cases where one of the spouses committed a criminal offense against the other or the child. However, the legislative innovation cancels this norm, which the initiators of the changes consider “paternalistic and contrary to the principle of voluntariness in marital relations.”
The current rule prohibiting divorce within a year of the birth of a child leads to the fact that a woman who suffers from domestic violence will continue to be under the physical or psychological pressure of the abuser for a long time, and will continue to suffer.
We remind you that violence, even if there are only signs of domestic violence, falls under the signs of an administrative offense. Also, the existing ban on divorce contradicts the principle of voluntary marriage, which is provided for in Article 24 of the Civil Code of Ukraine and the Convention on the Protection of Human Rights and Fundamental Freedoms of 1950. A person who is restricted in the dissolution of marriage cannot enter into another marriage, which gives rise to cohabitation with another person without registration of marriage, the birth of children there, the acquisition of joint property, which then entails various legal consequences and actions that could be avoided.
However, the current legislation provides for one more nuance. Article 240 of the Civil Procedure Code of Ukraine states that in a divorce case, the court can stop the proceedings and assign the spouses a period for reconciliation, which cannot exceed six months. In general, this norm is positive, because there are cases when spouses file for divorce due to emotions, and then one of them would like to reconcile, but as they say, pride does not allow you to approach and propose right away. The term for reconciliation granted by the court is the lifeline that sometimes saves the family. Usually, the judge gives a period of one to three months for the parties to reconcile. But in families where domestic violence takes place, the specified norm only prolongs suffering, because several months can be added to the year of the ban on the dissolution of marriage by the court, and taking into account the general terms of consideration of the case by the court, this is another year of marital torture. In families where domestic violence takes place, usually the person who commits the violence objects in every way to the dissolution of the marriage. Abusers often perceive marriage as the right to own a woman and, accordingly, the right to control, force her to perform “marital duties” and other forms of violence against her, and that is why they categorically object to the dissolution of marriage and try to delay court proceedings.
In this regard, the second change in the legislation, which was adopted in this regard, concerns Article 111 of the Criminal Code of Ukraine. Now it determines the following: the court takes measures to reconcile the spouses, if this does not contradict the moral principles of society. In the event that the reason for the dissolution of marriage is evidence of domestic violence, regardless of the results of consideration of civil, criminal or administrative cases regarding domestic violence, the measures provided for in part one of this article shall not be applied by the court.
These are very positive changes, because, as we can see from the text of the law, only the fact of committing domestic violence is enough, regardless of what happens with the relevant materials in the future – whether there is an indictment, whether an administrative penalty is imposed or not, whether the protocol is sent for revision, etc. . Here, it will be important to record the fact of domestic violence by calling the police at number 102. The certificate of calling the police and the subsequent movement of the application will be evidence that the fact of violence took place.
We would like to remind you what types of violence there are. Domestic violence is an act (action or inaction) of physical, sexual, psychological or economic violence committed in the family or within the place of residence or between relatives, or between former or current spouses, or between other persons who live together ( lived) as one family, but are not (were not) in a family relationship or married to each other, regardless of whether he lives (lived) the perpetrator of domestic violence in the same location as the victim, and threats to commit such acts.
Economic violence – a form of domestic violence, which includes the intentional deprivation of housing, food, clothing, other property, funds or documents or the ability to use them, leaving without care or concern, preventing the receipt of necessary treatment or rehabilitation services, prohibition to work, coercion to work , prohibition to study and other offenses of an economic nature.
Psychological violence is a form of domestic violence, which includes verbal insults, threats, including against third parties, humiliation, harassment, intimidation, other actions aimed at limiting the will of a person, control in the reproductive sphere, if such actions or inaction caused the victim the person fears for his safety or the safety of third parties, caused emotional insecurity, inability to protect himself or harmed the mental health of the person.
Sexual violence is also a form of domestic violence, which includes any acts of a sexual nature committed against an adult without their consent or against a child regardless of their consent, or in the presence of a child, coercion into an act of a sexual nature with a third person, as well as other offenses against the sexual freedom or sexual integrity of a person, including those committed against a child or in his presence.
At the same time, physical violence is a form of domestic violence in the form of slapping, kicking, pushing, pinching, whipping, biting, as well as illegal deprivation of liberty, beating, biting, inflicting bodily injuries of various degrees of severity, leaving in danger, not providing assistance to a person who is in a life-threatening condition, causing death, committing other violent offenses character
We note once again that the law has not entered into force at the moment, and therefore, at the time of submitting our comment, the previous provisions of the law are still in effect. However, it should be borne in mind that the decision to dissolve a marriage during pregnancy or the first year of a child’s life requires a balanced approach and careful consideration of the interests of all parties, especially the child. Although innovations in legislation provide more freedom in solving family issues, they also impose increased responsibility on both spouses. It is important not only to correctly use the rights provided by the law, but also to remember the moral obligations, the duty to ensure safety and stability for the child, regardless of the circumstances of the divorce.
However, in our opinion, the main rule of a woman’s life should be the motto: “Life with a man should be better than life alone, because you can live badly alone.”