path
When handling divorce registration, both husband and wife can go to the marriage registration office for divorce registration through consultation. The contents of consensus should be reflected in the divorce agreement, including but not limited to the following contents: expression of divorce intention, ownership of custody, payment of maintenance, division of property, etc.
In divorce proceedings, the husband and wife can't reach an agreement through consultation, so they can only sue for divorce in court. The court will decide whether to grant divorce, and at the same time, it will decide the ownership of custody, the payment of maintenance, the division of property and other issues.
situation
"Feelings have indeed broken down" is a substantive provision and a 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". There are some divorce cases, although mediation is ineffective, but it is not that "the relationship between husband and wife has indeed broken down." In mediation, there are often differences between efforts and ineffectiveness, depth and lack of depth, which directly affect the mediation effect. Years of civil trial practice show that the meanings of "mediation is invalid" and "feelings have indeed broken" are not exactly the same, and "mediation is invalid" does not mean "feelings have indeed broken". Therefore, in trial practice, "mediation is invalid" should not be taken as the basis for determining that "feelings have indeed broken" and "feelings have indeed broken" should not be completely equated with "mediation is invalid". Don't simply take "invalid mediation" as a sign that "feelings have indeed broken down", let alone take "invalid mediation" as a legal condition for judging divorce. The legal condition for judging divorce is only that "the relationship has indeed broken down."
Relevant laws
To judge whether the relationship between husband and wife really broke down, we should comprehensively analyze the marriage basis, feelings after marriage, reasons for divorce, the current situation of the relationship between husband and wife, and the possibility of reconciliation. According to the relevant provisions of the Marriage Law and the experience of trial practice, the relationship between husband and wife is deemed to have really broken down in any of the following circumstances. If one party insists on divorce and mediation fails, divorce may be granted according to law.
1. One party suffers from marital diseases prohibited by law, or one party has physical defects, or cannot have sexual relations for other reasons, which is difficult to cure.
2. Lack of understanding before marriage, hasty marriage, and lack of marital relationship after marriage, making it difficult to live together.
3. Concealing mental illness before marriage and being cured after marriage, or getting married knowing that the other party is suffering from mental illness before marriage, or one of the spouses is suffering from mental illness during their life and has been cured for a long time.
4. One party cheats the other party, or cheats to get a marriage certificate in marriage registration.
After the marriage registration, the two sides have never lived together and there is no possibility of reconciliation.
6. Arranged, bought and sold marriage, and one party immediately filed for divorce after marriage, or * * * has lived together for many years, but has not established marital feelings.
7. Separated for 2 years due to emotional disharmony, there is no possibility of reconciliation, or the people's court ruled that separation after divorce is not allowed 1 year, failing to perform the obligations of husband and wife.
8. One party commits adultery with others, cohabites with others, and still refuses to repent after education. It is really impossible for the innocent party to sue for divorce, or for the wrong party to sue for divorce, and the other party does not agree to divorce. After criticism, education and punishment, or after the people's court ruled that divorce is not allowed, the wrong party sued for divorce.
9. One party bigamy, the other party filed for divorce.
10. Because one party likes to relax, hates work, has bad hobbies such as drug abuse and gambling, and fails to fulfill family obligations, it is difficult for husband and wife to live together after repeated education.
1 1. One party is sentenced to long-term imprisonment according to law, or its illegal and criminal acts seriously hurt the feelings of husband and wife.
12. One party's whereabouts were unknown for two years, and the other party filed a divorce lawsuit. After the announcement, it was found that there was no whereabouts.
13. Being abused or abandoned by the other party, or being abused by the other party's relatives, or abusing the other party's relatives, and refusing to change after education, the other party does not understand.
14. One party has domestic violence.
15. The relationship between husband and wife really broke down for other reasons.
law
The termination of marriage means that the legal and effective relationship between husband and wife is destroyed by certain legal facts.
cause
Marriage can only be terminated because of two legal facts: the death of one spouse and the divorce of husband and wife.
(1) The marriage was terminated due to the legal event of the spouse's death.
(1) Natural death, one of the subjects of marriage relationship no longer exists, will inevitably lead to the elimination of the relationship between husband and wife, and have legal consequences such as inheritance. In legislation, some countries expressly stipulate that the death of one spouse leads to the termination of marriage. There is no explicit provision in some countries' laws that the death of the subject will inevitably lead to the termination of marriage.
(2) The date when the judgment declaring the missing person dead is published shall be the date when the deceased is declared dead. The marriage relationship between the person who is declared dead and his spouse shall be eliminated from the date of death. This is also the law of most countries in the world. However, some countries stipulate that the original marriage relationship shall be eliminated from the date when the surviving party remarries.
If the person declared dead reappears, or it is later known that the missing person is not dead, the original judgment of declaring death shall be revoked upon the application of himself or an interested party.
If the spouse of the deceased has not remarried, the relationship between husband and wife shall be restored from the date of revocation of the declaration of death; 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.
(2) 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, invalid marriage and invalid marriage.
There is a strict line between divorce and invalid marriage:
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.
④ The difference between divorce and separation.
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:
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.
⑤ Classification of divorce
According to the attitude of the parties to divorce, it can be divided into two types: voluntary divorce by both parties and divorce by one party; 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.
procedure
There are two ways of divorce: divorce by court proceedings and divorce by agreement with 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 who register for divorce shall produce the following documents and supporting materials: (1) their household registration book and identity card; (2) my marriage certificate; (3) The divorce agreement signed by both parties.
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.
procedure
Divorce registration shall be handled in accordance with the procedures of preliminary examination, acceptance, examination and registration (certification):
(1) Documents and supporting materials submitted by the parties;
(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, in accordance with the following steps:
1. Verify the names, birth dates and divorce intentions 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 client can't write his own name, he should press his handprint.
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.
make up one's mind
When it comes to how to get along in marriage, marriage counselors often warn both parties that "marriage is not just between two people", and their families will also affect the stability of marriage relations. 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, request 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.
result
interpersonal relationship
1. dissolution of spouse status relationship between husband and wife
2. Based on the relationship between husband and wife, the obligation of mutual support and the right of mutual inheritance between husband and wife are also eliminated.
3. At the same time, the freedom of marriage of both parties was restored.
Child support relationship
1. The child is still the child of both parents, regardless of whether the parents raised it or not. 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 relations
1. The property of husband and wife shall be handled by both parties through consultation. If no agreement can be reached, the people's court shall, according to the specific circumstances of the property, take care of the rights and interests of the wife and children and make a judgment.
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.
Divorce indictment
Plaintiff:
Address:
Defendant:
Address:
Claim: 1. Divorce verdict.
Second, the division of property.
Third, the child is raised by the plaintiff (or the defendant, depending on your situation)
Four, the legal fees shall be borne by the defendant (or by himself).
Facts and reasons: write clearly why you divorced and how the relationship broke down. Finally, according to the civil procedure law, marriage law and other legal provisions, bring a lawsuit to your hospital and ask for a legal judgment.
Shaping people:
Date, year and month
affect
children
Parents always think that their children are very young and don't know anything about them. Therefore, when the couple's feelings change and divorce, they feel that the children are too young to understand. In fact, even the youngest child is psychologically sensitive. Parents' divorce will leave an indelible mark on children's hearts and bring psychological harm to children. Children at different stages will have different behaviors.
Young children and preschool children
Children at this stage are most likely to have emotional conflicts when their parents divorce. Often manifested as a strong sense of guilt. I feel that my parents are separated because of their own mistakes and their disobedience: "It must be because I am disobedient that my parents don't want me." Emotional response is irritability, even depression. Therefore, parents need to pay special attention, and should clearly tell their children that the separation of parents is not his fault and has nothing to do with him, so as to alleviate their inner guilt. Some children's childhood problems may recur, such as bed wetting.
pupil
Children of this age often have a strong will to express themselves and their emotions fluctuate obviously. Parents are usually angry or sad when they divorce. Some parents consider this possibility and will try to make up for it. What parents should be reminded here is that if such an attempt is made under the condition of low compound probability, once it fails, it will undoubtedly be a double blow to the children. A large number of them will have a state of persistent sadness. If it is not handled properly, it is easy to lack confidence in feelings when you grow up. They are always worried about whether the other person will suddenly leave, communicate with the opposite sex, or deal with personal life and marriage problems. They are often very anxious, so they will not be happy easily.
property
A harmonious family can increase wealth, but a broken family will reduce wealth. A survey in the United States found that divorce can reduce a person's wealth by three quarters compared with being single.