Can a convicted prisoner end one marriage and remarry while behind bars?

There is an axiom that it is precisely non-standard situations which force one to move forward and make improvements.

It was just such a non-standard case which prompted the Ukrainian Ministry of Justice to consider the state of affairs and to introduce a range of amendments to the divorce procedure for Ukrainian citizens.

There’d been talk on and off for years about whether it was right that the person needed to personally sign the divorce application in order to receive a divorce certificate and be considered officially divorced.  Pursuant to Article 105 of the Family Code of Ukraine a marriage is terminated on application to end the relationship by husband or wife on the basis of a court ruling. The termination of the marriage carried out according to the court ruling must be registered in a State Register Office on the application of the former husband or wife, as stipulated in Article 115 of the above-mentioned Code.  The certificate received is evidence of the termination of the marriage and the document is received in accordance with the requirements of Article 116 of the same Code. According to Articles 158 and 179 of the Ukrainian Code on Marriage and the Family (section V of which remains in force until a special law is passed in the part which does not clash with the Family Code of Ukraine), registration of divorce is carried out in the State Register Office for the area where the couple getting divorced, or one spouse are resident. According to Article 184 of this Code, a note is made in the passports of the individuals getting divorced that the marriage has ended. Article 14 of the Family Code defines family rights as being linked with the individual, and these cannot be transferred to another person, while in Article 272 § 1 of the Civil Code of Ukraine it is stipulated that an individual exercises his or her non-property rights on his/her own . The possibility of registering a marriage’s termination or supplementing an official application to terminate a marriage outside the premises of a State Register Office or by proxy is not envisaged by current legislation.

Under the present state of affairs it becomes clear that if a person is unable to freely move about (is confined to his or her bed, is disabled or is in a place of imprisonment), then he or she cannot exercises his or her Family right, that being, in this case, to get divorced, and accordingly later remarry.

It was this situation that Vladislav Svidzinsky, a prisoner serving his sentence in penal colony No. 73 in the Berdychivsk district of the Zhytomyr region found himself in.  In his appeal to the Ukrainian Helsinki Human Rights Union he explained that the Head of the Berdychivsk branch of the State Register Office, Y.Y. Terefeyeva, had refused to issue first him, and then his brother acting on his authority, his divorce certificate, even though all documents needed to receive this certificate had been filled out as required, both by him, and by his brother.  She refused, and was right to do so, since the law does not allow for this. However what should one do in a situation where the prisoner will be unable to move around freely for another 5 years (!) and can therefore not himself come and fill out the official form to receive his divorce certificate?  At the same time he wishes to legalize his relationship with the woman with whom he has a small child.  The division of the Department for the Execution of Sentences in the Zhytomyr region refused to take him under guard to the place in order to give his signature, and therefore Vladislav turned to the UHHRU, demanding that his right to family life be defended.

In response to this appeal, the UHHRU addressed an appeal to the then Minister of Justice Serhiy Holovaty in which we asked that the Ministry look into the circumstances set out in the appeal and provide their legal assessment.

The response was a letter from the Ministry of Justice in which the latter confirmed that at present a problem exists for some people serving sentences in penal institutions in existing their right to marry, The Ministry presented their proposals on introducing amendments to legislative acts in order to improve regulation of the procedure for terminating a marriage with convicted prisoners.

The Ministry of Justice suggests that

  1. Article 106 of the Family Code be supplemented by a new paragraph two, reading:

“If one of the couple for a good reason is unable to appear to present the application to terminate the marriage to the State Register Office, a notarized application on his or her behalf may be presented by the other spouse”.

  1. Part two of Article 114  be supplemented with the following new paragraphs:

“A court ruling on the termination of a marriage which has taken effect is the final document which confirms the termination of the marriage. The court which handed down the ruling on the termination of the marriage, after its coming into force, shall send a copy of this ruling to the State Register Office for the area where the marriage was registered in order that a note be made to the official record of the marriage.

The Ministry of Justice also suggests that Part three of Article 234 of the Civil Procedure Code of Ukraine, after the words “couple who have children” be supplemented with the words “on the termination of the marriage on the application of one of the spouses, if one of them has been sentenced to deprivation of liberty.”

The following amendments should also be added to the Law of Ukraine “On notaries”:

A new Article 40 should be added, reading as follows:

“Verification by the head of penal institutions of a signature’s authenticity on documents:  The Head of a penal institution shall verify the signature of the individual held in that institution in accordance with the rules of Article 78 of this Law.

Verification by the Head of a penal institution of a signature’s authenticity on documents shall be equivalent to a notarized confirmation of a signature’s authenticity”, and accordingly, Article 78, after the words “an official of the executive committee of a village, settlement or city Council of deputies” shall be supplemented with the words “the head of a penal institution”.

These and other suggestions regarding the procedure for terminating a marriage were been sent by the Ministry of Justice to the UHHRU Executive Director Volodymyr Yavorsky for discussion and comments.

Thus, the prisoner Vladislav Svidzinsky and other people who have limited freedom of movement may soon get the chance to exercise their constitutional right to family life without obstruction.

Viktoria Onyshchenko, UHHRU

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