Journal article Open Access

Dissolution of Marriage within the Procedure of Action Proceedings: Problematic Issues

M.O. Reznykova

The article investigates the procedure for dissolution of marriage under action proceeding. Temporary obstacles to submit a divorce suit have been established. Declarative nature of p.4 of Art. 185 of the Civil Procedure Code of Ukraine regarding returning a divorce suit during the pregnancy of a spouse has been proved. In practice it is unclear how the judge can establish the fact of pregnancy at the stage of initiation of the case because neither family nor civil procedural legislation stipulates the necessity to submit a certificate of pregnancy along with the suit. 

Judicial procedural mistakes during consideration of divorce cases under action proceeding have been established. It has been identified that divorce suits are submitted to the court under the rules of alternative jurisdiction.

When the court tries cases on dissolution of marriage it assumes that the marriage is based on a free will of a woman and a man. It is inadmissible to force a man and woman to get married. When the spouses are forced to terminate marriage, keep it, enter into intimate relations using physical or psychological violence it violates their right to freedom and privacy and can have consequences provided for by law.

Every spouse has the right to terminate marriage relationship. The law does not identify which measures can be applied by the court to bring the spouses together. The court is entitled but not obliged to give additional time for reconciliation.

Following the analysis of case law regarding decision on additional time for reconciliation it has been proposed to expel Art. 111 of the Family Code of Ukraine and p. 7 of Art. 240 of the Civil Procedure Code of Ukraine because, unfortunately, the institute of reconciliation does not result in keeping the marriage, but it drags such important cases as dissolution of marriage. 

Conflicts, contradictory and unsolved issues of legal regulation of this procedure which were found during analysis of case law have been defined.

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