TRANSLATED FROM RUSSIAN
Justice of the Peace: Yu.A. Neverova No.11-222/2015
December 08, 2015 Moscow
The Khoroshevsky District Court of Moscow,
Having considered the appeal of Marina Vitalievna Petrov a in the open court session to the decision of the Justice of the Peace of the Court Circuit No.300 in Moscow on August 14, 2015, which has resolved the following:
To terminate the marriage registered on March 2, 1990 between Maxim Petrov and Marina Petrova in the Voroshilov Department of the Registry Office in Moscow (vital record No.400).
HAS ESTABLISHED THE FOLLOWING:
Vasily Petrov filed a claim against Marina Petrova and asked to terminate the marriage, commenced between the Parties on March 2, 1990 by the Khoroshevsky Department of the Registry Office in Moscow, vital record No.376. The statements of claim are motivated by the fact that on March 2, 1990 the Plaintiff married Marina Sviridova, and after the registration of marriage the Defendant changed her last name for Petrova. From the marriage the Parties have a son - Nicholas Petrov, date of birth - June 15, 1990, who reached his legal age, lives separately and independently from his parents. The family life failed to develop, and the spouses have been living separately for more than one year and a half. The current uncertainty in the family situation prevents the Plaintiff from building the future life.
The Justice of the Peace has made the aforementioned decision that Marina Petrova asks to cancel and to leave the claim without consideration, indicating in her appeal the fact that the spouses actually have a joint place of residence in the USA and in accordance with Article 161 of the Family Code of the Russian Federation the personal non-property rights and obligations of the Petrov spouses shall be determined by the legislation of the State in the territory of which they have a joint place of residence. On January 17, 2014 Marina Petrova appealed to the court at the place of joint residence of the spouses – to the Sussex County Supreme Court of the US state - New Jersey with a claim to terminate the marriage with Vasily Petrov, division of property, and determination of the alimony. On February 12, 2014 Vasily Petrov also filed his response to her statements of claim in the court at the place of joint residence of the spouses and declared counterclaims of the termination of marriage and division of the property. When filing the statements Vasily Petrov confirmed his recognition of the jurisdiction of the New Jersey state court. In accordance with Article 415 of the Code of Civil Procedure of the Russian Federation the decisions of foreign courts on the termination or invalidation of marriage between Russian citizens are deemed in the Russian Federation as such that do not require further proceedings because of their content, if at the moment of considering the proceedings both spouses were living outside the Russian Federation. By virtue of part 2 of Article 406 of the Code of Civil Procedure of the Russian Federation the Court of the Russian Federation shall leave the statement without consideration, if in the foreign court, whose decision shall be recognized or enforceable in the territory of the Russian Federation, the case regarding the dispute between the same parties was initiated, on the same subject and on the same grounds. As prior to filing a statement of claim to terminate the marriage by Vasily Petrov to the Court Circuit No.300 of the Strogino district in Moscow, in the Sussex County Supreme Court the case of termination of marriage between the same parties had already been initiated, and its decision shall be recognized in the Russian Federation, the statement of claim of Vasily Petrov, filed by him to the Court Circuit No.300 in Moscow shall be left without consideration.
The first-instance court heard the case in the absence of the Defendant not properly notified of the time and place of the court session. In the statement of claim the Plaintiff specified the false information regarding the place of residence of the Defendant, as well as preventing on the part of the Defendant in the issue of the termination of marriage, having misled the court, as well as concealed the fact of consideration of the case of the termination of marriage between him and the Defendant. In fact, the Defendant, as well as the Plaintiff constantly resides in the United States, both spouses are citizens of Canada, and have a residence permit in the USA. Marina Petrova resides at the following address: xxxxxxxxxxxxxxxxxxxxxx. The aforementioned address of the Defendant’s place of residence was known to the Plaintiff, but he hid it from the court, specifying the false information in the statement of claim that the Defendant keeps a residence in Russia and specified the address in Moscow, at which she does not reside. On August 14, 2015 the first-instance court considered the merits of the case, and issued a decision to sustain the statements of claim. In this case the materials of the case did not contain the information that the Defendant was properly notified of the place and time of the court proceedings. The not-certified copies of documents in English, presented by the representative of the Plaintiff, shall not be the sufficient admissible evidence, because their contents are not clear.
The Defendant Marina Petrova, notified at the place of registration, failed to come to the court session, her interests in the court on a warrant were represented by a lawyer Svetlana Rodina, who supported the arguments of the appeal on the grounds specified thereof, and stated that her trustee had no desire to keep the family together, and that the case initiated by Marina Petrova a in the USA has not been finished.
The Plaintiff Vasily Petrov failed to come to the court session, his interests in the court under the Power of Attorney were represented by Olga Kokovina, who objected to the complaint, assuming it as not reasonable, and stated that the Parties had not been living together for more than 1.5 years, the Plaintiff intends to register a new marriage, there is not any dispute about division of the property in the territory of the Russian Federation, and consideration of the case of termination of the marriage in the USA has been postponed.
Having heard the explanations of the representatives of the Parties, having assessed the evidence collected in the case, the appellate instance court comes to the conclusion that there are not any reasons to cancel the decision taken by the Justice of the Peace.
As it follows from the materials of the case, on March 2, 1990 Vasily Petrov and Marina Sivokon entered the marriage, registered by the Voroshilov Department of the Registry Office in Moscow, a vital record No.376 (personal case 4). Due to the registration of marriage Marina Sivokon changed her last name for Marina Petrova. The Parties do not have under-aged children from the marriage. The Defendant I.V. Petrova is registered at the place of residence, according to the registration card she is the owner of 1/2 share in the aforementioned apartment (personal case16 and 17).
According to Part 1 of Article 113 of the Code of Civil Procedure of the Russia Federation the persons involved in the case, as well as witnesses, experts, specialists and interpreters shall be notified or called to the court by registered letter with acknowledgment of receipt, subpoena with receipt requested, by telephone or telegram, by fax or by other means of communication and delivery, ensuring fixing of the judicial notification, or call and it delivery to the addressee.
According to Part 1 of Article 165.1of the Civil Code of the Russia Federation, statements, notices, notifications, requirements or other legally significant messages with which the law or the transactions binds civil and legal consequences for another person shall entail such consequences for this person from the moment of delivery of the relevant message to him/her or to his/her representative. A message shall be deemed delivered in those cases, if it has been received by the person, to whom it is directed (to the addressee), but due to circumstances beyond his/her control, has not been handed to the addressee or the addressee failed to read it.
As explained in paragraph 68 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No.25 dated June 23, 2015 “On Application of some of the Provisions of Section 1 of Part One of the Civil Code of the Russian Federation by the courts”, Article 165.1 of the Civil Code of the Russian Federation shall also apply to judicial notices and challenges, unless otherwise provided by the civil procedural and arbitration procedural law.
As it follows from the materials of the case the Defendant Marina Petrova was notified of the time and place of the case hearing at the place of registration in Moscow (personal case 85), as well as at the address in the US (personal case 86-90) specified by her, failed to come to the court session, and her interests were represented by the lawyer Svetlana Rodina in the court by agreement.
Under such circumstances, the appellate court believes that the Defendant Marina Petrova was properly notified of the time and place of the case hearing on August 14, 2015 at 10.00 am, in connection with which the Justice of the Peace had reasons to hear the case in her absence. The arguments of the appeal in this part cannot be a reason to cancel the decision.
As stated in Part 1 and Part 2 of Article 60 of the Family Code of the Russian Federation the marriage between the citizens of the Russian Federation and foreign citizens or stateless persons, as well as marriage between foreign citizens in the territory of the Russian Federation shall be terminated in accordance with the legislation of the Russian Federation. A citizen of the Russian Federation, residing outside the territory of the Russian Federation, shall have the right to terminate the marriage with his/her spouse, living outside the territory of the Russian Federation, regardless of his/her citizenship in the court of the Russian Federation. In case if in accordance with the legislation of the Russian Federation termination of marriage is allowed in the civil registry office, marriage may be terminated in the diplomatic representative office or consular institutions of the Russian Federation.
The Plaintiff Vasily Petrov and the Defendant Marina Petrova are citizens of the Russian Federation, in connection with which the termination of their marriage was performed by the court of the Russian Federation in accordance with the Russian legislation.
The Defendant considered that the claim of Vasily Petrov was subject to the abandonment without consideration on the grounds that she had previously appealed to the US court with a similar claim. The appellate court cannot agree with this argument.
According to Article 406 of the Code of Civil Procedure of the Russia Federation, the court of the Russian Federation refuses to accept the statement of claim to the proceedings or terminate the proceedings under the case, if there is a court decision on the dispute between the same parties on the same subject and on the same grounds, taken by a foreign court, with which the Russian Federation has an international treaty, providing for mutual recognition and execution of court decisions. The court in the Russian Federation shall return a statement of claim or shall leave the statement without consideration, if in a foreign court, whose decision shall be recognized or enforceable in the territory of the Russian Federation, a case regarding the dispute between the same parties, on the same subject and on the same grounds was previously initiated.
The consequences, specified in this Article, shall apply provided that the decision of a foreign court shall be recognized and enforceable in accordance with the international treaty in which the Russian Federation is involved.
There is no agreement between the Russian Federation and the USA to provide for mutual legal assistance in civil cases, and, therefore, the provisions of Article 406 of the Code of Civil Procedure of the Russian Federation shall not apply in this case, the Justice of the Peace has reasonably taken the claim of Vasily Petrov a to the proceedings and solved it on the merits.
According to Article 415 of the Code of Civil Procedure of the Russian Federation the decisions of foreign courts on the termination of marriage between Russian citizens are deemed in the Russian Federation as such that do not require further proceedings because of their content, if at the moment of considering the proceedings both spouses were living outside the Russian Federation.
As explained to the court by the representatives of the Parties, up till now there is not a decision of the foreign court regarding the termination of the marriage between Vasily Petrov and Marina Petrova, and therefore there are not any reasons for its recognition.
By virtue of Article 22 of the Family Court of the Russian Federation termination of marriage shall be carried out in court, if the court has established that the further joint life of the spouses and preservation of the family are impossible.
Taking into account the positions of the Parties, the Justice of the Peace correctly came to the conclusion about the impossibility of further joint life of the spouses and the preservation of the family, took a legitimate and well-founded decision on termination of the marriage between them, and no disputes on the division of the joint property or maintenance of the spouses were declared. The aforementioned circumstances were not contested by the Defendant.
Under such circumstances, the appellate court comes to the conclusion that there are not any grounds to cancel the decision of the Justice of the Peace, the rules of the procedural and substantive law have been properly applied, and the circumstances being of importance for the case have been established, and have been properly assessed. The arguments of the appeal of Marina Petrova cannot serve as the grounds to cancel the decision.
Based on the foregoing and guided by Articles 328 and 329 of the Code of Civil Procedure of the Russian Federation, the court
HAS DECIDED AS FOLLOWS:
To leave the Decision of the Justice of the Peace of the Court Circuit No.300 in Moscow dated August 14, 2015 under the case of the claim of Maxim Petrov against Marina Petrova (Sviridova) on the termination of the marriage unchanged, and to dismiss the appeal of Marina Petrova.