TERMS AND CONDITIONS FOR RECOGNITION OF MARRIAGE FACTIVE. JUDICIAL REVIEW

A necessary condition for recognizing a divorce is fictitious is not only the cohabitation of the former spouses, but also the living of just one family.

 This conclusion was reached by the Kherson city court of the Kherson region. In its decision, the court noted that the actions of the spouses should be aimed specifically at the implementation of the function of the family for the purpose of marriage.

≡The essence of the matter

 The woman has been married to her husband since 1971, they constantly lived together and kept a common household. After 18 years of married life, they fictitiously terminated the marriage. The couple had to leave, as this was the only way not to lose the apartment in which the wife's mother lived. For registration of property rights to the apartment, it was necessary to register your place of residence with your mother, and the presence of marriage prevented this. After the divorce, she and her husband lived together and kept a common household. But her husband died and left an inheritance in the form of a pension in a bank account, and therefore, wanting to gain access to her husband’s money, the woman went to court with a lawsuit declaring the divorce fictitious.

 The plaintiff referred to the fact that after the divorce, she and her husband lived together. However, the court did not take these circumstances into account and dismissed the claim.

≡ Grounds for refusing to declare divorce fictitious

 The court concluded that since the person had died, it was impossible to establish his intentions to divorce. More than 30 years have passed since the divorce until the death of her husband, and during the life of her husband the woman did not try to officially restore the marriage relationship or recognize the divorce as fictitious.

 The court did not recognize as proper evidence either the testimony of witnesses of the plaintiff’s neighbors who confirmed the fact of cohabitation, or the act of examining the apartment that established cohabitation and housekeeping. The court also failed to take into account the joint photographs of the plaintiff with her husband, medical reports, the fact of registration at one address.

 Regarding the testimonies of the witnesses, the court noted that they did not prove the fictitious nature of the marriage, and the subjective judgments about living together did not constitute unconditional evidence of the existence of a marriage and the management of a common household.

 The act of inspection of the apartment is not taken into account, since the examination took place more than six months after the death of her husband, and the information in the act is indicated by the neighbors.

 Of the photographs, it is not reliably known who is depicted on them, the date when these photographs were taken was not established.

 According to the court, registering at one address does not implicitly indicate the existence of a marriage between the plaintiff and her husband, and it is not possible to establish the presence or absence of a marital relationship from medical documents, since they indicate only the state of health.

 Thus, during the trial it is important to prove that at the time of the dissolution of the marriage, the plaintiff and her husband did not intend to actually terminate the marriage, and provide undeniable evidence for this. And since the person died, his intention to divorce is impossible to establish.

≡ Conclusion

There can be many reasons why fictitious transactions are made. And in making such deals, people often underestimate the consequences that may result. And judicial practice indicates that it is extremely difficult to prove fictitious intentions. Throughout life, circumstances can change regardless of one's own will, therefore, when making legally relevant decisions, it is necessary to evaluate and weigh all the risks that may arise as a result of this, which cannot be done without the help of an experienced lawyer.

 Link to judgment