According to the provisions of China's marriage law, if the relationship has indeed broken down and mediation is ineffective, divorce should be granted.
Husband and wife's "emotional breakdown" is the legal condition for judging divorce. "Emotional breakdown" is the substantive provision and legal condition for granting divorce.
"Invalid mediation" is a procedural provision and cannot be used as a legal condition for judging divorce.
In the trial of divorce cases, mediation should be conducted. Many cases of mediation failure have indeed been solved. In this sense, "ineffective mediation" is a reflection of "emotional breakdown".
However, there are some concepts and conditions for divorce by agreement (1). Divorce by agreement refers to the legal act that both husband and wife agree to dissolve the marriage relationship according to law.
According to article 3 1 of the Marriage Law, if a man and a woman divorce voluntarily, they must apply for divorce registration at the marriage registration office.
After formal examination and substantive examination, the marriage registration authority confirms that both parties have voluntarily and properly handled the children and property issues, and shall register for divorce and issue a divorce certificate.
The conditions for the marriage registration office to accept the application for divorce registration are: the marriage registration office has jurisdiction; Both husband and wife who want to divorce apply to the marriage registry together; Both parties have full capacity for civil conduct; The parties hold a divorce agreement, which contains the expression of the divorce will of both parties and the consensus on matters such as child support, property and debt handling; The party concerned holds a marriage certificate issued by the mainland marriage registration authority or the embassy (consulate) of China.
However, in any of the following circumstances, the marriage registration authority will not accept the application for divorce registration: (1) one party requests to register the divorce; (2) Both parties ask for divorce, but no agreement has been reached on issues such as child support, financial assistance for one spouse's living difficulties, property division, debt settlement, etc. (3) Both parties or one party is a person with limited capacity for civil conduct or a person without capacity for civil conduct; (4) Neither party is registered to get married.
It should be noted that regarding the validity of divorce agreement, Article 8 of Interpretation of Marriage Law (II) (1) stipulates that "the agreement on property division in divorce agreement or the agreement reached by the parties on property division due to divorce is legally binding on both men and women".
In order to fully protect the legitimate rights and interests of the parties, the parties have the right to file a lawsuit on "disputes arising from the performance of the property division agreement in the divorce agreement", and the people's court should also accept it.
The people's court shall also accept an application to the court to change or cancel the agreement on the division of property if both men and women repent of the division of property within 1 year after the divorce agreement.
After trial, the people's court found that there was no fraud or coercion in concluding the property division agreement, and rejected the litigant's claim according to law.
(II) Permission and procedures for divorce by agreement The civil affairs department is responsible for divorce by administrative agreement.
The specific marriage registration authority is the street office or civil affairs department of the municipal government of a municipal district or a city without districts; In rural areas, it is the people's governments of townships, nationality townships and towns.
Divorce by agreement must go through three steps: application, examination and registration.
1.
If mainland residents divorce voluntarily, both men and women should register for divorce at the marriage registration office where one party's permanent residence is located.
China citizens and foreigners voluntarily divorce in China Mainland, while mainland residents and Hong Kong residents, Macao residents, Taiwan Province residents and overseas Chinese voluntarily divorce in China Mainland. Both men and women should register for divorce at the marriage registration office where the permanent residence of mainland residents is located.
Mainland residents who apply for divorce registration shall produce the following documents and supporting materials: their household registration book and identity card; My marriage certificate; A divorce agreement signed by both parties.
Hong Kong residents, Macao residents, Taiwan Province residents, overseas Chinese and foreigners applying for divorce registration shall submit the above-mentioned documents and supporting materials, as well as travel documents.
Among them, the divorce agreement shall specify the expression of willingness of both parties to divorce and the consensus on matters such as child support, property and debt disposal.
2. review.
The marriage registration authority shall examine the certificates and certification materials issued by the parties involved in the divorce registration and ask about the situation.
If the parties do divorce voluntarily and reach an agreement on issues such as child support, property and debts, they shall register on the spot and issue a divorce certificate.
In the process of review, we must fully understand the contents of the agreement, especially pay attention to whether the intention of both parties to ask for divorce is true, whether the child support, the help of one spouse's life difficulties, the division of property and the handling of debts are appropriate.
3. register.
After examination by the marriage registration authority, those who meet the conditions for divorce shall be registered, issued a divorce certificate, and their marriage certificates shall be cancelled; At the time of divorce registration, if the parties fail to reach a divorce agreement, they belong to a person with no or limited capacity for civil conduct, or if their marriage registration place is not in Chinese mainland, the marriage registration authority will not accept it.
Refuse to register if it does not meet the statutory conditions, it shall explain in writing the reasons for not registering.
The relationship between husband and wife shall be terminated when the parties receive the divorce certificate.
If one party to a divorce fails to perform its due obligations in accordance with the divorce agreement, the other party may bring a civil lawsuit to the people's court.
(III) Cancellation of divorce registration If the party applying for divorce fraudulently obtains the divorce registration, the marriage registration authority shall cancel the divorce registration, and declare the dissolution of the marriage invalid for the divorced party and withdraw the divorce certificate. Litigation divorce refers to a legal system in which the husband and wife can't reach an agreement on divorce, child support or property division after divorce. On the one hand, they bring a lawsuit to the people's court, and the people's court mediates or decides to dissolve the marriage relationship after hearing it according to the litigation procedure.
According to the relevant judicial interpretation, mediation does not apply to marriage and identity confirmation cases; However, if it involves property division and child support, mediation can be carried out. If an agreement is reached through mediation, a mediation agreement shall be made separately.
Considering that divorce litigants are mostly mediated by neighborhood committees (village committees), their units and their relatives and friends, in order to overcome the tendency of the court to make multiple judgments and unilaterally pursue mediation rate, Article 2 of the Provisions of the Supreme People's Court on Several Issues Concerning Civil Mediation of People's Courts specifically stipulates: "People's courts shall mediate civil cases that can be settled through mediation.
However, the people's court will not mediate in cases where special procedures, supervision procedures, public notice procedures, bankruptcy and debt repayment procedures are applicable, marriage and identity confirmation cases, and other civil cases that cannot be mediated according to the nature of the cases.
Litigation divorce and agreement divorce apply to different situations.
Divorce by agreement only applies to cases where both parties voluntarily divorce and have properly handled the children and property issues, while divorce by litigation applies to all divorce relationships.
If both parties want to dissolve the de facto marriage, they can only divorce through litigation, not through agreement.
(1) Two special protections for litigation divorce 1. Special protection of lawsuit divorce for soldiers.
Article 33 of the Marriage Law stipulates that if the spouse of an active serviceman requests a divorce, he must obtain the consent of the active serviceman, unless the active serviceman has gross negligence.
This is a restriction on the non-military party's right to divorce, in order to protect the interests of soldiers and maintain the stability of the people's army.
Servicemen refer to officers and soldiers who have the military status of China People's Liberation Army and cadres and soldiers of the People's Armed Police Force, including military civilian personnel.
Retired, demobilized, transferred to other jobs and personnel engaged in logistics management, production and operation who do not have military status in the army do not belong to active servicemen.
Spouses of active servicemen refer to non-active servicemen.
This provision does not apply if both sides are soldiers or one of the soldiers proposes to divorce the non-military party, but the general legal reasons for divorce are still applicable.
If a soldier commits bigamy, his spouse cohabits with others, commits domestic violence or maltreats or abandons family members, has bad habits such as taking drugs and gambling, refuses to correct it, or has other fault conditions, which leads to the breakdown of the relationship between husband and wife, and the non-military side requests a divorce, but the military side does not agree, the people's court shall do a good job in the ideological and political work of the soldiers through the political organs at or above the regiment level to which the soldiers belong, and grant the divorce.
2. Special protection for women in litigation divorce.
According to Article 34 of the Marriage Law and Article 45 of the Law on the Protection of Women's Rights and Interests, a man may not file for divorce during pregnancy, within 1 year after delivery or within 6 months after termination of pregnancy.
This restriction shall not apply if the woman files for divorce or the people's court deems it really necessary to accept the man's request for divorce.
This provision is mainly to protect the legitimate rights and interests of women and children.
According to judicial interpretation and trial practice, the so-called "really necessary" mainly refers to the following two situations: (1) During this period, both parties did have important and urgent reasons for not being able to live together, which threatened the life and personal safety of the other party; (2) A woman's pregnancy or delivery of a baby is caused by adultery with others.
(3) Procedures for divorce through litigation: 1. Draft a complaint. Prepare the evidence needed for the lawsuit. Submit a complaint and evidence to a court with jurisdiction. The court decides whether to accept the lawsuit. After accepting the divorce proceedings, the court shall send a copy of the complaint to the other party within the legal time. 6. The court arranged the hearing and sent subpoenas to both parties. 7. Hearing: Both parties may entrust lawyers or other professionals to represent them in litigation (in general, both divorced parties must appear in court, and if they cannot appear in court for special reasons, they must issue written opinions to the court on whether to divorce). 8. According to the plaintiff's claim and the evidence submitted by both parties, the court makes a judgment on whether to grant divorce, how to divide the property and how to solve the problem of child support.
(4) Issues needing attention in divorce proceedings 1. Divorce proceedings initiated by citizens shall, in principle, be under the jurisdiction of the people's court of the defendant's domicile; However, if the defendant has left his domicile for more than 1 year, it shall be under the jurisdiction of the people's court of the plaintiff's domicile; If both parties have left their domicile for more than 1 year, they shall be under the jurisdiction of the people's court of the defendant's habitual residence; If there is no habitual residence, it shall be under the jurisdiction of the people's court where the plaintiff has his domicile at the time of prosecution; If the defendant does not live in the territory of People's Republic of China (PRC), his whereabouts are unknown, or he is declared missing, reeducation through labor or imprisoned, it shall be under the jurisdiction of the people's court of the plaintiff's domicile or habitual residence; Divorce proceedings brought by non-military personnel against non-civilian military personnel shall be under the jurisdiction of the people's court of the plaintiff's domicile; If both sides are soldiers, they shall be under the jurisdiction of the people's court of the defendant's domicile or the domicile of a unit at or above the regimental level; If both China citizens are abroad but have not settled down, and one of them brings a divorce lawsuit to the people's court, it shall be under the jurisdiction of the people's court where the plaintiff or defendant originally lived.
2. In principle, mediation is a necessary procedure for people's courts to hear divorce cases.
If the parties are unable to appear in court for mediation due to special circumstances, they shall issue written opinions, unless they are unable to express their wishes.
3. Evidence in litigation In divorce proceedings, the parties must provide evidence to support their claims, including: 1. Evidence to prove that his divorce request complies with the law. 2. Proof that the other party is at fault. 3. Evidence that both husband and wife have joint property. 4. Proof that you have the ability to raise children, if you want to fight for custody. 4. Judgments and appeals are invalid for mediation.
In the trial of a divorce case, if the parties apply for a private hearing, they may do so, but all judgments will be announced publicly.
If a divorce is decided in the first instance, the people's court must inform the parties not to get married separately before the judgment becomes legally effective.
When hearing an appeal case, the people's court of second instance may conduct mediation.
If the mediation parties reach an agreement, the judgment of first instance shall be deemed to be revoked from the time when the mediation document is delivered.
If mediation fails, the court of second instance may make a judgment, which is final.
To apply for divorce registration, both husband and wife who apply for divorce shall submit a written application to the marriage registration authority of the Civil Affairs Bureau, issue a letter of introduction from the unit or the neighborhood (village) committee, and fill out the divorce application form. The marriage registration authority of the Civil Affairs Bureau found out that the application was the expression of the true meaning of both parties, and reached an agreement on family property, education, medical expenses and the sharing of children. The marriage registration office of the Civil Affairs Bureau shall make a decision on granting divorce within 30 days from the date of receiving the application for divorce, collect the marriage certificates of both parties and issue divorce certificates. If the spouse of the person who has been declared dead has not remarried, the relationship between husband and wife will recover from the date when the death declaration is revoked; However, some countries stipulate that in this case, only with the consent of both husband and wife and re-registration of marriage can marriage be resumed.
If the spouse has registered marriage with another person, the latter marriage relationship has legal effect and the original marriage relationship will not be restored.
This is determined by the particularity of personal relationship.
Most countries have clear regulations on this.
If a spouse divorces after remarriage or dies after remarriage, it shall not be deemed that the original relationship between husband and wife has recovered itself.
(2) The marriage is terminated due to the legal act of divorce.
Divorce is a civil legal act in which both husband and wife dissolve their marriage relationship according to legal conditions and procedures.
Divorce is also called dissolution of marriage, that is, a legal and valid marriage is terminated according to law.
Divorce is not only directly related to the personal relationship between husband and wife, but also related to children and property issues, which will also have a certain impact on family and society.
Therefore, divorce not only affects the legal status of the parties, but also involves the division of property, the custody of children and the support of family members who cannot live independently, which plays a very important role in marriage and family law.
The legal characteristics of divorce: a The subject of divorce can only be husband and wife, and the expression of will of the parties must be reflected in the divorce behavior.
For administrative divorce, both parties must personally express their intention to apply for divorce at the marriage registration office; In divorce proceedings, even if the parties have agents ad litem, they should still appear in court, except those who cannot express their will.
If the parties are unable to appear in court due to special circumstances, they must submit written opinions to the court to express their wishes.
B divorce is the act of dissolving marriage, and its prerequisite is that both parties must have a marriage relationship.
Divorce must meet the legal conditions and procedures.
In the United States, divorce must go through litigation procedures, but the parties can reach an agreement in advance on their divorce and various matters after divorce, which will be recognized by the court.
The vast majority of the parties (about 95% or more) agree in advance without a judge's judgment.
The reasons (conditions) for divorce can be divided into fault and no fault.
(3) the difference between divorce and invalid marriage; (1) Divorce is the dissolution of legal marriage.
Invalid marriage means that it does not have the legal effect of marriage because of the lack of legal elements for the establishment of marriage.
The reasons for divorce generally occur after marriage, and the reasons for invalid marriage occur at the time of marriage.
Three. Divorce dissolves the marriage relationship from the date of confirmation and has no retroactivity. Invalid marriage means that the court confirms that invalid marriage is invalid from the beginning and has retrospective effect.
Divorce proceedings are limited to both parties; The lawsuit of invalid marriage is not subject to this restriction.
The invalidity of marriage is the correction of the flawed marriage when it was established.
A revoked marriage is invalid from the beginning.
The reasons for the invalidation of marriage generally occur at the time of marriage, and the parties to the marriage relationship of the coerced party personally request the court or the marriage registration authority to declare the marriage invalid.
The request to cancel the marriage must be made within the limitation of action.
The difference between divorce and separation refers to the legal system in which both parties to a marriage temporarily or permanently terminate their obligation of cohabitation, but maintain their marriage relationship.
The system of separation originated in medieval Europe.
This system was established to dissolve the common life of husband and wife in the case that divorce is prohibited by canon law.
At present, although many countries have adopted the legal system of freedom of divorce, some countries have retained the separation system.
Such as France and Italy in civil law system, Britain and the United States in common law system, etc.
The main differences between divorce and separation are as follows: 1. During the period of separation, the marriage relationship is still in a state of existence, and both parties only terminate the obligation of cohabitation and are not allowed to get married alone, otherwise it will constitute bigamy and divorce will completely dissolve the marriage relationship. After divorce, both parties have the right to remarry.
During the period of separation, both husband and wife still bear the obligation of chastity, and after divorce, both parties have no such legal obligation.
Three. Husband and wife still have the obligation to support each other during their separation, and this obligation is completely eliminated after divorce.
Four. Husband and wife still have the right to inherit property from each other during their separation, but they have no such right after divorce.
China's marriage law does not stipulate the separation system, but it stipulates that "separation for two years due to emotional disharmony" should be regarded as the relationship between husband and wife has indeed broken down and divorce can be granted according to law.
The classification of divorce can be divided into voluntary divorce of both parties and divorce of one party according to the attitude of the parties; According to the different legal procedures for handling divorce, it can be divided into administrative divorce and litigation divorce; According to the way of dissolving marriage, it can be divided into divorce by agreement and divorce by judgment.
There are two ways to edit divorce: divorce by court proceedings and divorce by agreement in the marriage registration office of the civil affairs department.
Divorce in accordance with Chapter IV of the Marriage Law of the People's Republic of China Article 31 If both men and women divorce voluntarily, divorce shall be granted.
Both parties must apply for divorce at the marriage registry.
When the marriage registration office finds out that both parties really want and have properly handled the children and property issues, it will issue a divorce certificate.
Article 32 If a man or a woman requests a divorce, the relevant department may mediate or directly file a divorce lawsuit with the people's court.
First, the civil affairs department agrees that the divorce procedure is convenient.
In the process of divorce by agreement, we should be very careful in drafting the divorce agreement and must not act rashly. If necessary, you'd better ask a lawyer to check.
According to Chapter III Divorce Registration of the Regulations on Marriage Registration Article 10 If mainland residents divorce voluntarily, both men and women should * * * go through the divorce registration at the marriage registration office where one of them has his permanent residence.
Article 11 Mainland residents shall submit the following documents and supporting materials when registering for divorce: divorce agreement.
The divorce agreement shall specify the expression of willingness of both parties to divorce and the consensus on matters such as child support, property and debt disposal.
If both parties agree to divorce, and can reach an agreement on child support, property division and other issues, it is very convenient to go to the civil affairs department to negotiate divorce since the revision and implementation of the Marriage Registration Ordinance in June 2003 10.
Second, divorce in court proceedings: convenience and complexity go hand in hand.
Divorce in accordance with Chapter IV of the Marriage Law of the People's Republic of China Article 32 If a man or a woman requests a divorce, the relevant departments may mediate or directly file a divorce lawsuit with the people's court.
If one spouse insists on divorce or agrees to divorce, but fails to reach an agreement on child support or property division, the only way to divorce is through court proceedings.
10 program editor divorce registration shall be handled in accordance with the procedures of preliminary examination, acceptance, review and registration (certification): (1) the parties submit certificates and supporting materials; (two), the marriage registrar to check the corresponding documents and certification materials; (3) The marriage registrar explains to the parties the conditions of divorce registration in the Marriage Law; (four), the marriage registrar asked the parties about the divorce will and the contents of the divorce agreement; (5) If both parties voluntarily divorce and reach an agreement on matters such as child support, property and debt disposal, both parties shall fill in the Declaration on Application for Divorce Registration and sign it in front of witnesses; (6) Both husband and wife personally sign the divorce agreement; The marriage registrar is a witness to the oath.
One copy of the agreement is for both husband and wife, and one copy is filed in the marriage registration office; (seven), the marriage registrar to review the documents submitted by the parties, divorce registration application, divorce agreement, in line with the conditions of divorce, fill out the "divorce registration review processing form" and divorce certificate; (8) issue a divorce certificate.
Divorce certificates shall be issued in the presence of both parties: 1. Verify the names, dates of birth and divorce wills of both parties; 2. Inform the parties of the legal relationship after receiving the divorce certificate, the relationship with children and the obligations after divorce; 3. Witness the personal signature of the parties in the column of "Signature or fingerprint of the party receiving the certificate" in the "Divorce Registration Review Processing Form"; If the parties are unable to write their names, they should press their handprints.
4. Stamp the marriage certificate of the parties with a strip seal, indicating that "the two parties are divorced, and the certificate is invalid.
×× Marriage Registry ".
The cancelled marriage certificate shall be returned to the parties concerned.
5. Issue divorce certificates to both divorced parties respectively, announce to both parties that they have received divorce certificates and dissolve the relationship between husband and wife.
1 1 Decided that when the editor talked about how to get along in marriage, marriage counselors often warned both parties that "marriage is not just between two people", and their families would also affect the stability of marriage.
As for whether the marriage should continue, we should consider how happy our marriage is and whether this marriage can bring happiness to the rest of our lives.
One of the most basic criteria is whether your personality is complete in this marriage. If not, in my consultation, I usually advise the parties to choose divorce, as soon as possible.
The longer you wait, your character will be numb. When the other person is tired and you want a divorce, this person's life will be ruined.
Generally speaking, in the following four situations, the parties are advised to make a decisive divorce decision, seek legal help in time, and strive for their own rights and interests: (1) Domestic violence is frequent.
There is a domestic violence every once in a while. After the fight, I apologized to the victim and promised never to fight again.
I can eat for a while and then apologize.
This kind of apology is absolutely unbelievable. Just to prevent the injured party from seeking legal help, calling the police or asking their parents for help, causing unnecessary trouble or being punished.
Many domestic abusers are gentle in the eyes of outsiders, but they are all kinds of difficulties and harshness at home, which is often his extreme contempt for their spouse's personality. This is obviously a psychological problem, but they never despise the help of counselors or psychologists.
In this case, the injured party should leave as soon as possible.
(2) drinking and doing nothing.
Such people have lost their fighting spirit in life, and can only rely on the role of alcohol to anesthetize themselves, or find a trace of reverie in life, but they are unwilling or afraid to join in entrepreneurship.
These people (often men) depend entirely on their spouses' support, but they never listen to their spouses' advice. If they are not satisfied, they may commit violence.
(3) Illness, drug abuse and gambling, and no repentance.
People who don't have this bad habit may have a certain career and even achieve something in their career.
Earlier, because of entertainment and other reasons to accompany customers, I was infected with drugs, gambling, or curiosity, seeking drugs to bring spiritual stimulation to myself.
If you don't change after repeated persuasion, it will not only ruin yourself, but also be a disaster for the whole family.
(4) Living with others in the name of husband and wife.
Such people hurt their spouses emotionally, and more importantly, they don't care about their spouses' personal dignity at all.
On the surface, it may be good for your spouse, and you don't forget to give it to your family, thinking that you are responsible for your family.
Outside, because of sexual satisfaction and other reasons, I don't want to divorce because of face, and I want to control the women outside to keep proper relationship for a long time, so I made a promise to get married.
Some will hide the fact that they still have families from each other, and some will divorce perfunctory even if they know.
For the above four situations, you should be prepared for divorce very early.
Of course, it may also be because of other reasons that marriage is really unnecessary.
This should be considered from a rational point of view, not impulsive.
Personal relationship 1. The spousal relationship between husband and wife is dissolved. 2. The mutual support obligation and mutual inheritance right between husband and wife based on the relationship between husband and wife are also eliminated. 3. At the same time, the freedom of marriage of both parties is restored to the relationship of child support 1. A child is still a child of both parents, whether or not they are raised by their parents.
Parents still have the right and obligation to raise and educate their children.
2. Therefore, for lactating children, the principle is to raise them with lactating mothers.
3. If there is a dispute over the maintenance of children after breastfeeding, and the two parties cannot reach an agreement, the people's court shall make a judgment according to the rights and interests of the children and the specific circumstances of both parties.
4. If one party raises a child, the other party shall bear part or all of the necessary living expenses and education expenses.
The amount and duration of the expenses shall be agreed upon by both parties. If the agreement fails, the people's court shall make a judgment.
5. The agreement or judgment on the children's living expenses and education expenses shall not prevent the children from making reasonable demands to either parent beyond the original agreement or judgment when necessary.
Property relationship 1. Husband and wife's property shall be handled by mutual agreement. If the agreement fails, the people's court shall make a judgment according to the specific circumstances of the property and the principle of taking care of the rights and interests of the wife and children.
2. At the time of divorce, the debts incurred by husband and wife due to the same life shall be repaid with the same property; If the property is insufficient to pay off, it shall be paid off by both parties through agreement; If the agreement fails, the people's court shall make a judgment.
3, a man and a woman before marriage, or a separate debt, I repay.
During the period of divorce, if one party has difficulties in life, the other party should give appropriate financial help.
Specific measures shall be agreed by both parties; If the agreement fails, the people's court shall make a judgment.