Prepared by: Olga Mykhailiuk, lawyer, Master of Law, head of the Law Firm ‘Olga Mykhailiuk’, member of the Family Law Center at the National University ‘Oleksandr Dovzhenko Academy’.
Divorce is one of the most common categories of cases for a family lawyer. However, practice shows that in the court process of divorce cases, a lawyer may encounter a number of barriers, most of which can be anticipated and effectively overcome. Let’s consider the most common situations and proposed solutions based on the author’s publication experience.
Regarding leaving a claim without action due to failure to provide the original marriage certificate
Indeed, some local courts still leave divorce claims without action on the grounds of not providing the original marriage certificate. There is also a practice where the court opens proceedings in the case and in the ruling on the opening of proceedings, obliges the plaintiff to provide the original marriage certificate.
In this case, it is appropriate to refer to the Supreme Court Decision in case No. 526/442/22 dated 19.10.2022, where the Supreme Court directly stated: ‘leaving a claim without action on the grounds of not providing the original marriage certificate is a violation of the principle of the rule of law, the right to a fair trial, contradicts the objectives of civil procedure’.
The requirement to provide the original marriage certificate may seem overly formalistic, but it is necessary to comply with the requirements for providing duly certified copies of documents to prevent leaving the claim without action.
Regarding the sufficiency of the lawyer’s powers
There is a judicial practice where a divorce claim signed and submitted by a representative, left by the court of first instance without consideration, motivated by the fact that part one of Article 110 of the Civil Procedure Code of Ukraine provides for personal submission by one of the spouses with a divorce claim.
The Supreme Court noted that a representative can sign a divorce claim on behalf of the client (Decision of 09.07.2021 in case No. 607/10879/20). The Supreme Court considered the following: the divorce claim signed by the representative; the divorce claim is accompanied by the lawyer’s order to represent the plaintiff’s interests and a copy of the legal assistance agreement. The plaintiff’s representative – the lawyer did not have any legal procedural obstacles and restrictions for signing and submitting the divorce claim to the court on behalf of the client.
For filing a divorce claim with proper evidence of the lawyer’s authority, an order to provide legal assistance of the established form is required. However, in practice, situations may arise where the court verifies the representative’s authority to sign the divorce claim, with proper confirmation of this being an extract from the legal assistance agreement.
Regarding jurisdiction
A common practice is when the defendant in a divorce case is registered in a temporarily uncontrollable territory and/or has the status of a temporarily displaced person. This circumstance is not a basis for filing a divorce claim at the plaintiff’s registration location. In such a case, it is necessary to follow the relevant order on determining the territorial jurisdiction of cases and refer to the list of courts whose territorial jurisdiction has been changed due to the impossibility of administering justice during a state of war https://supreme.court.gov.ua/supreme/gromadyanam/terutor_pidsudnist/. Under these circumstances, courts mostly, in order to determine and ensure compliance with the rules of territorial jurisdiction of the case, request information from the Ministry of Social Policy of Ukraine from the Unified Database on internally displaced persons regarding the defendant.
It should be noted that courts mostly open proceedings and consider cases based on the place of residence of the internally displaced person, upon the availability of a certificate of registration of the internally displaced person and after receiving information about the status of the internally displaced person from the Ministry of Social Policy of Ukraine. However, such procedural actions require a certain period of time and may delay the consideration of the case at the stage of the court deciding on the opening of proceedings.
Regarding sending the court decision to the civil status registration authority
In accordance with the Procedure for maintaining the Unified State Register of Court Decisions approved by the decision of the High Council of Justice dated 19.04.2018 No. 1200/0/15-18, information on the entry into force of a court decision (including the results of the consideration of a case by an appellate or cassation court) is entered into the court’s automated document circulation system (ADCS) and sent to the Register through the ADCS tools. The administrator is responsible for entering the information sent by the courts into the Register, providing access to it, and ensuring the protection of the information entered into the Register from theft, distortion, or destruction.
In practice, due to a certain workload of the courts of first instance, there is indeed a problem with the court sending a legally binding decision to the civil status registration authority. Moreover, there are isolated cases when the court timely does not enter information into the court’s automated document circulation system (ADCS) about the entry into force of a court decision. In such a case, the employee of the Civil Status Registration Authority does not have the opportunity to register the divorce even upon the person’s (representative’s) request. For a practicing lawyer, considering the existing obstacles, it is necessary to clearly define in the legal assistance agreement whether further work with the client in the Civil Status Registration Authority is included in the scope of the agreement.
In addition to procedural obstacles in court representation of divorce cases, a family lawyer faces certain emotional issues in cooperation with clients, taking into account the specificity of personal legal relations.
It is worth remembering that the defendant has the right to submit a request for a conciliation period, which, if there are grounds, can be granted by the court, or to file an appeal, which significantly delays the consideration of the case and often causes emotional concerns for the client. A family lawyer is not a party to a family conflict, is not simultaneously a mediator, not a psychologist of their client, not a ‘panacea’ in solving all problems, so it is important to establish moderate trust and control over the client’s expectations. It is recommended to specify in the legal assistance agreement the rules of interaction with the client, clearly define the subject, scope, and content of the mandate so that obstacles in court representation of divorce cases are transformed solely into components of professional experience, rather than risks or burnout.