Fictitious dissolution of marriage: how to prove fictitious intentions in court? ➤ Judicial practice.
It is not a tricky business to conclude a fictitious deal, and there may be many reasons for this. It’s another matter to deal with the consequences that often occur as a result of such transactions. When, for example, a fictitious divorce turns into a real one.
My name is Irina Leiko, I am the head of the family law practice at Prikhodko & Partners Law Firm. And today I will tell you what consequences a fictitious divorce can lead to on the example of a fresh case.
Along with a fictitious marriage, there is a fictitious dissolution. That is, the couple receives a divorce certificate, but in fact they continue to live as one family, run a joint household and raise children. Why is this done and what do they get as a result of such a dissolution of marriage? For example, the allocation of additional living space, the receipt of certain benefits that, being married, spouses cannot receive, exemption from debt payment, risky business, commercial activity by civil servants, exemption from income declaration by spouses, and even for concluding a fictitious marriage in order to obtain material benefits.
However, no one is able to calculate in advance all the risks and consequences that may arise as a result of this and to prove in court that the dissolution of a marriage was fictitious, it can be difficult. Let me give you an example. As a result of such a fictitious divorce, after 30 years of living together with her husband, the woman was left without an inheritance, and was unable to prove in court that the spouses had no intention of actually divorcing, but filed a divorce only for the purpose of obtaining certain benefits.
So, in the 20th year of married life, a married couple had a need to recognize the ownership of the apartment in which her mother lived. To do this, it was necessary to confirm the joint residence with her and registration at the address of this apartment. Since the presence of marriage prevented this, the spouses decided on a fictitious divorce. The marriage was dissolved, and after the divorce, the couple continued to live together as one family. In the 30th year of marriage, her husband died and left an inheritance in the form of a significant amount of money in the account.
According to the law, if they were married, the spouse would claim a share of the inheritance as the heir of the first order. Therefore, the woman went to court with a claim to recognize the dissolution of the marriage as fictitious on the grounds that they had no intention to actually dissolve the marriage, after the dissolution of the marriage they lived as one family, and the purpose of the divorce was to get an apartment.
What do you think was the court decision? The court refused her. The court did not take into account any evidence of the woman and concluded that since the man had died, it was impossible to establish his intentions to dissolve the marriage. 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 dissolution of the marriage as fictitious.
Moreover, the court did not take into account the testimony of witnesses who confirmed the fact of their cohabitation as one family and claimed that they had heard from them about the apartment, that divorce is the only way to get it.
The court did not take into account the joint photographs of the spouses, proof of registration at the same address, medical reports, an apartment survey certificate, which confirmed their cohabitation.
All this evidence is evaluative, and the fact of cohabitation of former spouses is not enough. In court, it is important to prove that at the time of the dissolution of the marriage, the married couple had no intention and internal will to actually dissolve the marriage.
This position has been repeatedly emphasized by the Supreme Court.
Therefore, when making legally significant decisions, it is necessary to assess and weigh all the risks that may arise as a result of this. Compare the pros and cons and ask yourself, is it wor
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