Ukrainians face difficulties during divorce if one spouse is at the front or in captivity

Divorce during martial law is often accompanied by additional legal difficulties. Situations are especially complex when one spouse is serving in the military in a combat zone, directly participating in hostilities, or is in captivity.

At the same time, the legislation does not contain a separate procedure for divorce with a person who is at the front or in captivity. Such cases are considered under the general rules of family and civil procedural law, taking into account the specific status of servicemen.

What the legislation provides

Article 56 of the Family Code of Ukraine enshrines the right of each spouse to terminate marital relations. The provision also states that coercion to preserve them is a violation of the person's right to freedom and personal inviolability.

According to Article 104 of the Family Code of Ukraine, marriage is terminated, among other things, as a result of its dissolution.

If the spouses have no common children and have submitted a joint application for divorce, the marriage may be dissolved by the civil registry office.

Article 112 of the Family Code of Ukraine provides that the court dissolves the marriage if it establishes that further cohabitation and preservation of the marriage contradict the interests of one of the spouses or their children, which are of significant importance. This provision is the main legal basis for divorce in court.

Can a serviceman participate in the case?

The mere fact of being at the front does not automatically mean the impossibility of participating in the court process.

The Civil Procedure Code of Ukraine allows parties to participate in hearings remotely, submit written explanations, engage representatives, and use the "Electronic Court" system.

At the same time, in practice, situations arise when a serviceman is performing combat missions or is in an active combat zone and effectively has no access to communication. In such cases, the court must carefully verify the issue of proper notification of the party about the case hearing.

Divorce with a person who is in captivity

The situation is even more complicated when one spouse is in captivity.

The current legislation does not contain a direct prohibition on divorcing such a person. At the same time, the court must consider that captivity significantly limits the ability to exercise procedural rights.

During the consideration of such cases, important issues include:

• confirmation of the fact of the person's captivity;
• establishing the possibility of notifying them about the case hearing;
• assessing whether the hearing without their participation will violate the right to a fair trial.

Judicial view

Ukrainian family law is based on the principle of voluntariness of marriage. For this reason, the Supreme Court has repeatedly emphasized that the state cannot force a person to maintain family relations against their will.

In case No. 444/4951/24, the Supreme Court concluded that denying divorce when there is a clear and consistent will of one spouse to terminate family relations is effectively coercion to preserve the marriage.

The court found that the parties had not lived together for more than two years, did not maintain a joint household, and reconciliation measures were ineffective. By overturning the appellate court's decision, which considered the claim an emotional reaction to conflict, the Supreme Court emphasized that assessing the parties' feelings is not within the court's authority, and marriage is based on the principle of voluntariness.

Thus, coercion to preserve marriage against the will of one spouse is unacceptable. However, the actual breakdown of the family, lack of cohabitation, mutual support, and intention to continue family life may be grounds for divorce regardless of whether one spouse is serving in the military.

At the same time, the practice of the European Court of Human Rights is based on the idea that every person must have a real opportunity to participate in the process concerning their rights and obligations.

Key elements of the right to a fair trial, guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, include:

• proper notification of the court hearing;
• the opportunity to present objections;
• the right to be heard by the court.

Therefore, even under martial law, courts must ensure procedural guarantees for servicemen and persons in captivity.

Main problem: balancing two rights

In such cases, courts must find a balance between two competing rights.

On one hand, a person has the right to end a marriage that has effectively ceased to exist. On the other hand, a serviceman or captive cannot be deprived of the right to participate in the process solely because of their special status.

That is why judicial practice has not developed a universal approach. Each case is evaluated individually, taking into account specific circumstances.

Among the main law enforcement problems are:

• lack of a special procedure for divorce with a person in captivity;
• difficulty in properly notifying the defendant;
• difficulties in obtaining official confirmations of the serviceman's whereabouts;
• the need to simultaneously ensure the right to divorce and the right to a fair trial.

In many cases, the further progress of the case depends on the completeness of information received from military units and state authorities.

Thus, the presence of one spouse at the front or in captivity does not in itself prevent divorce. The Supreme Court's practice is based on the principle that coercion to preserve marriage is unacceptable, while courts must ensure that servicemen or captives have a real opportunity to exercise their procedural rights and guarantees of a fair trial.

Read additionally — divorce through the civil registry office: when joint consent is sufficient and why it is indispensable.