Divorce appellatte decision

APPELLATE DECISION

Members of the Appellate Division with participation Karina Duvall as attorney for Plaintiff, having considered under open court proceedings the appellate complaint submitted by Wife, the applicant [her name keeps in secret] against the Divorce order issued by the Acting Magistrate Judge on divorce case,

HAS ESTABLISHED AS FOLLOWS:

The Husband [his name keeps in secret] submitted divorce action against the Wife, and pointed that Parties were legally married in St. Petersburg. Divorce was granted by the Acting Magistrate Judge.

Having protested against the Divorce order issued by the Magistrate Judge, the Defendant filed an appeal, by referring to the absence of the Defendant’s consent to the divorce. However, to the contrary of the requirements of Article 22 of the Family Code of the Russian Federation, the court has not taken measures for the reunion of the spouses, and considered the suit objectively, resolving on the marriage dissolution. The defendant, however, believes the family can be reunited, and the marriage can be preserved. She is asking to cancel the Divorce order of the magistrate judge, and dismiss the case by reconciliation.

The applicant failed to attend the court session, being duly notified on the time and venue of the suit consideration. In the circumstances aforesaid, the court decided it is possible to consider the suit in the absence of the applicant.

The interested Plaintiff failed to attend the court session, being notified, they provided an oppositions, believing it is not substantiated, and the Divorce order issued shall remain in force, legitimate and taken by observing the regulations of material and procedural law. In such circumstances, the court decided it is possible to consider the suit in the absence of the interested.

Having reviewed the suit materials, having heard the explanations from litigators, having discussed the reasons for the appeal, the court believes the divorce order is substantiated and shall not be subjected to cancellation.

In accordance with Article 327.1 part 1 of the Civil Procedural Code of Russian Federation, the appeal court considers the suit within the scope of the reasons filed in the appeal, presentation and objections with regard to the appeal and presentation.

In accordance with Article 330 of the Civil Procedural Code of Russian Federation, the reasons for cancellation or change of the court order under appeal procedure are following:

1) incorrect determination of the material circumstances of the suit;

2) failure of evidencing the material circumstances of the suit determined by the court of original jurisdiction;

3) inconsistency between the conclusion of the court of original jurisdiction contained in the court order and the suit;

4) failure or incorrect application of the material law regulations or the procedural law regulations.

Plenum of the Supreme Court of the Russian Federation in the Order № 23 “On the court order” dated the December 19th, 2003 explained that the order shall be legitimate and substantiated (part 1 of Article 195 of the Civil Procedural Code of Russian Federation). The order is legitimate when it is taken strictly by observing the regulations of the procedural law and in full compliance with the regulations of material law, which are applicable to relevant matter, or when it is based on application, as necessary, of a similar act or a similar law (part 1 of Article 1, part 3 of Article 11 of the Civil Procedural Code of Russian Federation). The order is substantiated when the material facts of the suit are confirmed by the evidences investigated by the court, complying with the requirements of the law in terms of relevance and applicability, or by the circumstances not needed to be evidenced (Articles 55, 59-61, 67 of the Civil Procedural Code of the Russian Federation), as well as when the court order includes the exhaustive court conclusions arising from the facts established.

The court has ascertained that the parties were legally married in St. Petersburg, which is evidenced by the marriage certificate. The family life has failed, the family has fallen apart. The matrimony is ceased, they are not residing as a family, not keeping common house, and the matrimonial relations are not maintained. The spouses have no minor children born in the marriage.

According to Article 21 of the Family Code of the Russian Federation, the divorce is made under court proceedings with no consent from one of the spouses thereto.

The divorce shall be granted by a court order the same in cases when one of the spouses, despite the absence of any opposition, refuses to dissolve the marriage in the civil registrar’s office (refusing file the application, not willing to attend for the state registration of the marriage dissolution, etc.).

In accordance with of Article 22 clause 1 of the Family Code of the Russian Federation, a divorce shall be granted by a court order if the court determines that the future life as a couple of the spouses and the preservation of the family are impossible.

The appeal court agrees with the conclusion of the court of original jurisdiction, as regards the circumstances determined, as to impossibility of further common living of the spouses and preserving the family, therefore the marriage between the parties shall be subjected to termination.

In her appeal the Defendant refers to a violation on the part of the magistrate judge of the procedural law regulations, because the latter failed to provide with a period for reunion.

The court agrees with the conclusions of the magistrate judge, as legal relations of the parties and the applicable law were determined by the judge correctly, and the material circumstances of the suit were determined based on the evidences provided. The evidences provided for the suit materials were reviewed by the court of the original jurisdiction in accordance with Article 67 of the Civil Procedural Code of the Russian Federation, on which the order includes motivated part.

Also, the defendant’s party failed to provide any acceptable evidences of the parties’ reunion, while on the date of the appeal consideration by the court, the plaintiff’s goal remains at dissolving the marriage.

Other appeal evidences do not contain any new circumstances which could affect the court resolution, these were investigated by the court of the original jurisdiction, the court sees no reasons for revision of the evidences provided in the suit materials, these are confirmed by the explanations from the plaintiff in the suit complaint, the appeal evidences are aimed at revising the evidences available in the suit and the court conclusions, at another interpretation of the Law, due to which these cannot result in cancellation of the court order being objectively correct, by simply referring to a formal provision in of Article 330 c.6 of the Civil Procedural Code of the Russian Federation.

The applicant’s referral to failure on the magistrate judge’s part to provide a period for reunion is rejected by the appeal court, because the magistrate judge’s actions do not contradict the provisions of Article 22 part 2 of the Family Code of the Russian Federation, and explanations № 15 of the Russian Supreme Court dated November 05th, 1998, in c. 10, such a period for reunion may be provided upon the sole discretion of the court, but not as the must. Moreover, the magistrate judge has taken into account a flat refusal by the plaintiff of the reunion and any periods for such, which is witnessed by the application made by Karina Duvall as attorney.

Therefore, no procedural failures were committed by the magistrate judge which could be an unconditional basis for the order cancellation.

Based on the foregoing, there are no reasons for cancellation by the magistrate judge of the order according to Article 330 of the Civil Procedural Code of the Russian Federation.

Based on the aforesaid and by virtue of Articles 328, 329 of the Civil Procedural Code of the Russian Federation, the court,

DECIDED:

The Divorce order issued by the Acting Magistrate shall remain unchanged; the appeal filed by the Defendant shall remain unsatisfied.

The judge – signature