Problems of legal regulation of divorce proceedings in the special proceedings

Abstract

The article is devoted to the study of the peculiarities of applying the norms of national civil procedural and family law when courts of civil jurisdiction consider the application on divorce from the spouses in special proceedings. Attention is drawn to the problems in determining the content of the application, the subject composition, jurisdiction and the particularities of considering this category of cases. The analysis of one of the court rulings allowed the author to draw attention to inconsistencies in the civil procedural law.

The work stresses on the consolidation of the possibility of considering such a case in the special proceedings by the court, but the absence of norms on the peculiarities of considering this category of cases gives rise to an ambiguity in the interpretation of certain norms of the civil procedural legislation. The analysis of literary sources also indicates a lack of studies of these issues.

When considering the peculiarities of the subject composition, the author draws attention to the absence in the content of the civil procedural legislation of such an entity as the “spouses” with a legislatively fixed provision in the Civil Procedural Code of Ukraine of the need to participate in special proceedings of an applicant as a person applying to the court and, on the other hand, interested parties. The impossibility of applying the rules of jurisdiction in this case is proved by analogy with the rules of jurisdiction in cases of legal action. When considering the issues related to the peculiarities of the consideration of these categories of cases by courts, attention is drawn to the uncertainty of the civil procedural legislation on the timing of a decision by a court in such cases, on the procedural and legal consequences of withdrawal of a divorce application by spouses and on the procedural fixation of the consequences of this event by the court.

Taking an account of the given factors, it is concluded that it is more expedient and transparent to consider the issue of divorce process according to the rules of ordinary legal proceedings, and not a special one.