Family Law & international divorce

Open borders, reciprocal sympathy between Russians and foreign citizens in the past two decades have led to the conclusion of thousands and thousands of happy marriages between citizens of our countries. However, not all of them managed, due to various reasons, such as isolation from the native environment, inability to adapt to new realities, difficulties in understanding the customs and language acquisition difficulties, to find family idyll abroad. After all, as the proverb says: “In every ointment there is a fly.”

Termination of “mixed marriages” in principle and divorce in particular – is a complex process involving many nuances of international law and family law in each country. Many people know that a divorce may take years to happen, and it also consists of many legal aspects and procedures that an inexpert person cannot simply master and apply on his own.

Whereas your own life is at stake, your often young and best years, and the possibility of a new start in your life.

International divorce has some specific features that are most clearly manifested in the case of accommodation of one of the spouses outside of a foreign country.The problems that may arise in case of a divorce with a citizen of Russia comprise the property division and determination of the spouse the minor children will stay to live with. Since legally speaking, in Russia there is an alternative, but actually by default the children remain with their mother, while in a foreign country, the issue may become a reason for a long debate. This takes into account many parameters, such as social adaptation, the level and nature of the income, the availability of the property. Russia (2011) and Western countries joined the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption of 29.05.1993, which prescribes to determine the degree of social adaptation of the child to the country of habitual  residence.

On the other hand, the European Parliament adopted Council Regulation (EU) No 1259/2010 of 20 December 2010 (Rome III) implementing enhanced cooperation in the area of the law applicable to divorce and legal separation by a court decision, which is subject to application starting from June 21, 2012 . Regulation Rome III applies in EU countries , in situations involving a conflict of laws, to divorce and legal separation of spouses. Rome III is based on the principle of universality – not only the law of the EU member state  is applicable, but of any third country as well.

In case of divorce from a citizen of Russia, the rule of application of legislation of the place of fulfillment of legally significant actions, i.e. the rules of national law of the country, where the divorce takes place, have precedence in use. Thus, paragraph 1 of Article 160 of the Family Code of the Russian Federation states that ” The dissolution of a marriage between the citizens of the Russian Federation and foreign citizens or stateless persons, and also of a marriage between foreign citizens on the territory of the Russian Federation shall be effected in conformity with the legislation of the Russian Federation.”

Being that said, it should be borne in mind that the territory of the consular institutions of foreign states in the Russian Federation are not territories of the Russian Federation, so the dissolution of marriage in the consular office of a foreign country in the Russian Federation is subject to the rules of foreign law.

Russia, like other countries, has ratified and does implement such concepts as “personal law of an individual.” In international law, it means that in case a person has committed legally significant actions on the territory of another country, the applicable law in his respect of that of the country the citizen of which he is.One of the main problems of divorce from a Russian citizen abroad is his absence on the territory of the country, the citizen of which is the other spouse. At the same time, on the basis of the procedural law norms of the Russian Federation, the absence of the other spouse during the dissolution  of marriage through the courts is not an obstacle in the proceedings. In accordance with Article 29 of the Civil Procedural Code of the Russian Federation, a claim against a citizen who has no place of residence in the Russian Federation may be instituted in court at the place of residence of plaintiff. In the case of repeated failure of the defendant to appearance in court the judge can rule of the merits of the dispute without personal participation defendant in the trial. However, the plaintiff in the future may have problems with the recognition of such a dissolution of marriage abroad, but for validity purposes on the territory of the Russian Federation the fact of divorce will be legally recognized.

The most common question asked by our clients comes down to where should a divorce take place – in Russia or abroad?

If the second spouse in the future has the intent to reside abroad, , then it is preferable to get divorced abroad, and if the marriage is dissolved outside of a foreign country, it is better to settle the issue of participation of the other spouse in the matrimonial case, if not personally, then through representatives or proxies.

In case of a marriage dissolution with a foreign national the Russian Federation legislation shall apply, provided that there are no international agreements which specify otherwise.

Thus, in accordance with Part 1 of Article 160 of the Family Code, the dissolution of a marriage between the citizens of the Russian Federation and foreign citizens or stateless persons shall be effected in conformity with the legislation of the Russian Federation. A similar rule applies in respect of foreign nationals wishing to terminate their marriage on the territory of the Russian Federation. Being that said, Part 2 of Article 160 establishes that any marriage of a citizen of the Russian Federation, residing outside of the territory of the Russian Federation, including the one concluded with a foreign citizen may be terminated in the Russian Federation court in conformity with the Russian Federation legislation. Moreover, if a marriage dissolution according to the norms of the Family Code does not require a judicial recourse, such a marriage can be dissolved in a consular office or diplomatic representation of the Russian Federation according to the rules established for the dissolution of marriage in civil registry offices.

In case of  the dissolution of marriage with a foreigner on the territory of the Russian Federation  the law of a foreign state may be applied in the following cases:

–              the personal non-property and property rights and duties of the spouses shall be defined by the legislation of the state, on whose territory they have a joint place of residence (part 1 of article 161 of the Family Code.);

–              in the absence of a joint  citizenship or joint place of residence, the applicable law can be  determined in the marriage contract or in the agreement on the payment of an alimony (Part 2 of Article 161 of the Code

–              If the legislation of the Russian Federation defines as mandatory the dissolution of the marriage in court (Art. 21-23 of the Family Code), then in accordance with the rules of procedural law, a claim for the dissolution of a marriage is instituted by plaintiff at the place of residence of the defendant. At the same time Article 29 of the Civil Procedural Code of the Russian Federation allows to institute a claim against the defendant who does not have a permanent residence on the territory of the Russian Federation, at the place of residence of the plaintiff. The failure of the defendant is not a reason to refuse the lawsuit or dismiss the claim. However, if in the course of divorce, you need to resolve complex issues, including those related to joint property or upbringing of children, the presence in court of the other spouse is highly desirable. If the spouse, for whatever reason, refuses to participate in divorce proceedings on the territory of the Russian Federation, one may issue a power of attorney to another person to represent and protect one’s interests in the court.

The court, when considering a divorce case with a foreigner, applies the rules of legislation of the Russian Federation. Moreover, if the judge, when considering an application for divorce, establishes the need to apply the norms of a foreign family law, then in accordance with Article 166 of the Family Code, he is obliged to establish the content of these norms in conformity with their official interpretation, the practice of their application and the doctrine in the corresponding foreign state.

Concluding the review of procedural rules governing the divorce procedure with a foreigner in the Russian Federation, it is necessary to mention that when considering the application for divorce, the following thing shall be assured: the right of the spouse who is a foreign citizen and does not speak the Russian language, to engage an interpreter in divorce proceedings;

Russian translation and legalization (consular or simplified with apostille) of the documents executed outside of the Russian Federation, which the parties produce to argue their position.Our attorneys have more than 10 years of experience in handling international family cases in Russia and abroad, related to divorce, property division, determination of the place of residence of children after divorce, and establishment of the procedures for communication with them.

High qualification, rich experience and extensive judicial practice of our lawyers guarantee a positive outcome of the case, even in the most hopeless situation.