Divorce in wartime conditions. Part 1.

Recently, a certain trend has been observed – since the beginning of hostilities, more and more people have started to apply with the intention of ending family relations. How to do it?

There are two ways to dissolve a marriage in Ukraine. The first is when the spouses do not have minor children, they both agree to divorce and can personally come together to any civil status registration body in Ukraine to submit a joint application. The second involves the presence of minor children, the disagreement of one of the spouses for a divorce, or in general the presence of a husband or wife in an unknown place. In our practice, there are cases when one of the spouses notes that he has not only not seen his other half for ten, fifteen or even more years, but he does not know where she is now. In this case, divorce is possible only in court.

With the first case, everything is clear – the spouse takes documents confirming the identity and the original marriage certificate and goes to the body for registration of civil status acts. By the way, in order to dissolve a marriage, the spouses must have the original marriage certificate in their hands. If such a document has been lost or is in an unusable state (torn, washed away by water, eaten by mice, etc.), any body of registration of civil status acts on the territory of Ukraine may, at the request of a citizen, issue a duplicate marriage certificate that has the validity of the original. The only nuance is that if a citizen applies to the civil status registration body where the marriage was registered, he will be issued a second certificate immediately. If the application falls to another body for registration of civil status acts on the territory of Ukraine, you will have to wait a little – the registration bodies will contact each other to clarify the availability of an act record of the registration of a specific marriage. Sometimes it happens faster – several hours, sometimes longer – several days. The civil status registration authorities have a single information base even regarding the territories that were occupied after 2014, as well as records made before 2014, but sometimes additional verification or clarification of data is required. The cost of such a service in civil status registration bodies in 2024 is within UAH 250 in several receipts.

Thus, in order to apply to the court with a claim for divorce, you need to have: a copy of the passport or ID card of the person applying for divorce (hereinafter – the plaintiff), a copy of the plaintiff’s RNOKPP, an extract from the register of the territorial community on the registration of the plaintiff by place residence in the case of an ID card, the same copies of documents for the second spouse (if available) or information about the RNOCPP or passport data, or at least data about the last known place of residence, the original of the marriage certificate, copies of children’s birth certificates.

The only exception to the dissolution of marriage in court is contained in Art. 110 of the Family Code of Ukraine, which states – “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, in relation to the second of spouse or child”. But even in this case there are nuances provided by the same article – 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 dissolution of marriage 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 act record of the child’s birth; or the guardian has the right to file an action for dissolution of marriage if the interests of the spouse who is recognized as incompetent so require.

We are not in Italy – in our country, the court grants divorce to everyone, with the exception of what was mentioned earlier regarding a child under one year old or pregnancy. But in practice, sometimes very clever people come across who, if possible, and if the other spouse does not know about it, hide information about pregnancy, and sometimes even about the birth of a child! In such a case, no one informs the court about what is an obstacle to divorce and a decision is made to dissolve the marriage. The court is not obliged and does not have such a technical possibility to check the existence of a legal record of the birth of a child, so if none of the parties has informed the court about it, then this information will remain secret.

So, for example, our client, who once married a Moroccan citizen and about whom she only knew the information that was stated in the marriage certificate, decided to divorce. At the time of filing the application for divorce, she had a child from another husband, but according to the current legislation, the child was automatically registered with the husband – a citizen of Morocco, who, of course, was not only unrelated to her, but had been outside the borders of Ukraine for a long time. The woman hid from the court the fact that she had a child up to a year old, the husband accordingly did not appear before the court, and therefore could not report the specified information about the child. The marriage was dissolved. Regarding the person who files a lawsuit (plaintiff), there is no criminal liability for the circumstances that he states in the lawsuit, or, on the contrary, hides and does not mention. This is called a position on a court case.

The procedure of applying to the court contains certain procedural nuances.

According to Art. 27 of the Civil Procedure Code of Ukraine – “Claims against a natural person are submitted to the court registered in accordance with the procedure established by law at the place of his residence or stay, unless otherwise provided by law.” In turn, Art. 28 of the Code of Criminal Procedure of Ukraine provides for – “Lawsuits for dissolution of marriage may be filed at the registered place of residence or stay of the plaintiff also if he has minor or minor children to support or if he cannot leave for the defendant’s place of residence due to his health or other valid reasons. By agreement of the spouses, the case can be considered at the registered place of residence or stay of any of them.”

What does this mean in practice and how to correctly determine the court to which you need to apply for divorce?

The speed of the divorce depends on the accuracy of the determination of the court to which the lawsuit should be filed, which is sometimes of significant importance for one of the spouses – the desire to enter into a new marriage with another person, the birth of a child from another person, etc. Thus, the husband, if he is not disabled, not seriously ill, does not care for a seriously ill relative and does not have other important circumstances, files a claim for dissolution of marriage in the court at the place of registration of the wife.

A wife who has a minor child has the right to choose, she can file a claim for divorce at the husband’s place of registration, or at her own place of registration (since the husband’s and wife’s place of registration are the same, then everything is clear here). At the same time, in addition to the above-listed copies of the documents, copies of certificates on the place of registration of the child/children, or a copy of the certificate on the composition of the family, must be added to the statement of claim. If the child is not registered at a specific address, then an act drawn up by a local deputy or headman with the participation of witnesses is submitted to the court, which confirms the actual residence of the child or children at the specified address without registration together with the mother. If a woman does not have a minor child, but has other valid reasons for filing an application with the court at her place of registration, she can do so.

It should be noted that sometimes citizens confuse the concepts of “place of registration” (previously it was called “registration”) and “place of residence”, in fact they may not coincide. Both of these addresses must be specified in the petition for divorce! The place of registration is the address at which a person is officially registered and it is listed in the registers of the territorial community. Place of residence is any place where a person currently resides permanently or temporarily due to various circumstances.

Next, we approach the issue of applying internally displaced persons – IDPs – to the court at the place of registration. In 2022-2023, there were cases when lawsuits were accepted by the courts at the place of registration of the IDP, but later court practice returned to the fact that the “place of registration” is decisive, and the address of an internally displaced person is his temporary address of residence. Thus, for the court, in this case, the place of residence registered in accordance with the procedure established by law is important, which, in relation to a natural person, is determined in accordance with the provisions of Art. 29 of the Civil Code and Art. 3 of the Law of Ukraine “On Freedom of Movement and Free Choice of Residence in Ukraine”.

This of course makes sense, because there are cases when the party to the case needs to take a copy of the court decision both immediately after the end of the court process and many years after the court decision was passed in its archive. Knowing the place of registration, it is possible to calculate the court to which the claim was filed, and therefore obtaining a copy of the court decision or other documents related to the case will not be a problem.

In the conditions of military operations, as well as the territories occupied since 2014, there is an important point – the change of territorial jurisdiction of the court, which cannot perform its functions due to the occupation or the immediate proximity of military operations. In such a case, in accordance with Part 7 of Article 147 of the Law of Ukraine “On the Judiciary and the Status of Judges”, in the event of the impossibility of administering justice by a court for objective reasons during a state of war or emergency, in connection with a natural disaster, military actions, measures regarding the fight against terrorism or other extraordinary circumstances, the territorial jurisdiction of court cases considered in such a court may be changed by a decision of the High Council of Justice, which is adopted at the request of the Chairman of the Supreme Court, by transferring it to the court that is territorially closest to the court that is not may administer justice, or another designated court. If it is impossible for the High Council of Justice to exercise such authority, it is exercised by order of the Chairman of the Supreme Court. The corresponding decision is also the basis for the transfer of all cases pending before the court whose territorial jurisdiction is changing.

Currently, the list of courts whose functions of administration of justice have been changed or returned can be found on the official website link

It should be noted that this list is constantly updated – some territories are vacated and all state bodies return to work on them, some on the contrary, unfortunately, transfer their powers to others.

If we consider how to act on a practical level, then we will consider the following real situation from our practice. The woman had no minor children, had a registered marriage, went to live in Kharkiv from the city of Vovchansk, Kharkiv region, in connection with the active hostilities in this territory and wanted a divorce. The husband remained to live in the city of Vovchansk, he did not consent to the divorce. According to the general rule, in peacetime, a woman would have to apply for divorce to the Vovchan District Court of the Kharkiv Region. But on April 20, 2023, the Supreme Council of Justice passed a decision to change the territorial jurisdiction of cases of ten local courts of Kharkiv region from May 1, 2023 and determined the jurisdiction of the following courts: Vovchan District Court of Kharkiv Region, Velikoburlutsky District Court of Kharkiv Region – Chuguyiv City Court of Kharkiv Region. With this in mind, a lawsuit for divorce was submitted to the Chuguyiv city court of Kharkiv region, which made a decision on divorce.

Read the continuation in our next publication.