On the establishment of a fact of legal significance
F.V. appealed to the court with an application for the establishment of a fact of legal significance, arguing that on December 29, 2004, the court considered a civil case on F.F.'s claim to F.V. for the dissolution of marriage. By a court decision, the marriage was dissolved, registered by the Registry Office of the city of M. of the Turkmen SSR, act entry No. 637 dated August 10, 1968. Since the original marriage certificate was presented to the court, she asked the court to confirm the fact of G.V.'s marriage to F.F., the change of surname to F., registered in the city of M. of the TSR with act No. 637 dated August 10, 1968.
The representative of the person concerned of the State Institution "Department of Civil Registration of the city of U." did not appear at the court session, having applied for consideration of the case without his participation, and did not object to satisfying the applicant's claims.
The Court considers it possible to consider the case according to the rules of Article 196 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) in the absence of a representative of the person concerned who did not appear.
After hearing the applicant's explanations and examining the case file, the court comes to the following conclusion.
According to article 26 of the International Covenant on Civil and Political Rights, all people are equal before the law and have the right to equal protection of the law without any discrimination.
In accordance with paragraph 2 of Article 76 of the CPC, the circumstances established by a court decision or decision that entered into force in a previously considered civil case are binding on the court. Such circumstances are not proven again in other civil cases involving the same persons.
By the decision of the U. city Court of December 29, 2004, the marriage, registered on August 10, 1968 at the Registry office of the city of M. of the Turkmen SSR with act entry No. 637, between F.F. and F.V. was dissolved. When issuing a certificate of divorce, F.V.'s last name was changed to the last name that belonged to her before marriage – "G".
It follows from the court's decision that the applicant's pre-marital surname, F.V., was "G.".
According to Article 305 of the CPC, the court establishes the facts on which the emergence, change or termination of personal or property rights of citizens or legal entities depends.
The court establishes other facts of legal significance, unless the legislation of the Republic of Kazakhstan provides for a different procedure for their establishment.
According to Article 306 of the CPC, the court establishes facts of legal significance only if it is impossible for the applicant to obtain proper documents certifying these facts in another manner, or if it is impossible to restore lost documents.
According to paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13 "On judicial practice in cases of establishing facts of legal significance", the list of facts on which the emergence, modification or termination of personal or property rights of citizens and organizations depends, given in Article 291 of the CPC, is not exhaustive. The courts have the right to establish other facts of legal significance, for example, the establishment of the fact of residence at a certain time in a certain area, the presence of a person in a special settlement, as a result of the use of repression, the fact of recognition of paternity (Article 49 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family"), the fact of refusal to accept inheritance. By decree of the Presidium of the Supreme Soviet of the USSR dated November 10, 1944, citizens who were in a de facto marital relationship before the Decree was issued on July 8, 1944, and who were unable to register their marriage with the civil registration authorities due to the death of one of the persons, were granted the right to apply to the court for recognition of the de facto marital relationship. No time frame has been set for the commission of these actions, so such facts still have legal significance and can be established by the court.
In such circumstances, it follows that F.V.'s statement cannot be satisfied, since the fact that there is a marital relationship to change the spouse's last name is confirmed by a court decision that has entered into force.
According to Article 117 of the CPC, the costs associated with the proceedings in the case, if both parties are exempt from paying court costs, are attributed to the republican budget.
Since the applicant is a disabled person of the second group, she is exempt from paying the state fee.
Guided by Articles 223-226, 305-309 of the CPC, the court
decided:
To refuse to satisfy F.V.'s application for establishing a fact of legal significance.
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