1. Which marriages can be revoked?
The Marriage Law stipulates that if a marriage is coerced, the coerced party may request the marriage registration authority or the people's court to cancel the marriage. If the coerced party requests to dissolve the marriage, it shall do so within one year from the date of marriage registration. If the party whose personal freedom is illegally restricted wants to dissolve the marriage, it shall do so within one year from the date of restoring personal freedom. "Coercion" refers to the situation that the actor forces the other party to get married against his true will by threatening to cause damage to the life, health, reputation and property of the other party or his close relatives. The person who asks for the cancellation of marriage because of coercion can only be the party in the coerced marriage relationship. The term "one year" here does not apply to the suspension, interruption or extension of the statute of limitations. If you don't make a request to cancel the marriage within one year, the right to claim will disappear forever.
2. What is an invalid marriage?
The Marriage Law stipulates that marriage is invalid in any of the following circumstances:
Bigamy;
Having a kinship relationship that prohibits marriage;
Before marriage, he suffered from a disease that was medically considered unsuitable for marriage and was not cured after marriage;
Underage for marriage. Although the marriage is invalid at the time of marriage, the people's court will not support it if the legally invalid marriage situation has disappeared when the parties apply to the people's court for cancellation.
3. Prepare for divorce, agreement or lawsuit?
There are two ways of divorce: agreement and litigation, each with its own characteristics, and the parties can choose according to their own actual situation.
I. Divorce by agreement
The advantage of divorce by agreement is that it saves time and money. Generally speaking, if the materials are complete, the divorce procedure can be completed in about half an hour. However, the requirements for divorce by agreement are stricter. Divorce by agreement requires both husband and wife to reach an agreement on the meaning of divorce, property division, child support and other issues. If the two parties cannot reach an agreement on any of the above issues, they can only choose to file a lawsuit for divorce. Therefore, before the divorce registration is agreed, both parties should sign a written divorce agreement.
Second, litigation divorce
If one spouse files for divorce, the other spouse does not agree to divorce, or both parties agree to divorce, but no agreement has been reached on issues such as property division, child support, education, medical expenses, etc., the parties involved in divorce proceedings may file divorce proceedings with the people's court. Litigation divorce is relatively time-consuming and laborious, but if the two sides can't reach a divorce agreement, it is a necessary step. 4. What are the conditions for divorce by agreement?
According to the provisions of the Marriage Law and the Regulations on the Administration of Marriage Registration, the legal conditions for agreeing to divorce registration are: 1. Both parties applying for divorce should divorce voluntarily. The marriage registration office does not accept the divorce request put forward by one party.
2. Both parties applying for divorce have properly handled the issues of child support and property. If both parties ask for a divorce, but no agreement has been reached on matters such as child support, financial assistance for one spouse's living difficulties, property and debt handling, the marriage registration authority will not accept it.
3. In other cases where divorce is not agreed, if one or both parties have limited or no capacity for civil conduct, the marriage registration authority will not accept it; If the marriage registration is not handled, the marriage registration administration organ will not accept it.
5. What about the divorce of active servicemen? According to the provisions of the Marriage Law, the spouse of an active-duty soldier who wants a divorce must obtain the consent of the active-duty soldier, unless the active-duty soldier has a major fault. Gross negligence here refers to one of the following military situations:
Bigamy or a spouse living with others;
Committing domestic violence or abusing or abandoning family members;
Gambling, drug abuse and other bad habits are incorrigible; If the non-military party files for divorce, the military party disagrees, and the military party has no major fault, the divorce will not be decided. There are no restrictions for the military to file for divorce.
6. Under what circumstances should a man not file for divorce?
Article 34 of the Marriage Law stipulates: "A woman may not file for divorce during pregnancy and within one year after delivery."
However, Article 34 of the Marriage Law also stipulates that "if the woman files for divorce during pregnancy and within one year after delivery, or the people's court deems it really necessary to accept the man's request for divorce, this restriction shall not apply." That is to say, although the law limits the man's right to sue within a certain period of time after the woman is pregnant and gives birth, he can still accept the man's divorce request under special circumstances. Here, the key is to see which situations are "really necessary", and there is no such restriction. Judging from the trial practice and the relevant judicial interpretation in the Supreme People's Court, the situation of "really necessary" is currently a kind of
Generally refers to the situation that the woman is pregnant due to adultery. If the man files a divorce lawsuit after the woman is pregnant with adultery or within one year after the woman gives birth, the court shall accept it. In addition, within one year after the woman gives birth, the man still cannot file for divorce. From the legislative spirit, legally restricting the man's right to sue for divorce within one year after the woman gives birth is not only for the normal development of the baby, but also for the woman's physical and mental health. 7. How can a husband and wife divorce without civil conduct?
1. If one of the spouses has civil capacity, only divorce proceedings can be filed. Divorce stipulated in the Marriage Law requires both husband and wife to divorce voluntarily. If one party has no capacity for civil conduct, it is not voluntary. From this, it can be considered that the spouse without civil capacity cannot agree to divorce, and other relatives of the spouse without civil capacity cannot represent him in the divorce agreement. In this case, if one of the spouses has no capacity for civil conduct and files an application for divorce registration with the marriage registration department, the marriage registration department will not accept it and shall inform him to file a divorce lawsuit with the people's court.
Two, in litigation, relatives of the parties without civil capacity must first determine the legal representative to represent them. Scope of legal representative: parents, adult children, adult brothers and sisters with dependent relationship. If there is no legal representative within the above scope, the legal representative can be determined in accordance with the methods stipulated in the Civil Law and the Civil Procedure Law.
Three, this kind of divorce proceedings, can be closed by agreement. The legal representative of a party without civil capacity may reach an agreement with the other party on divorce, child support, property division and other issues. If no agreement can be reached, the court can close the case directly.
8. How to divorce if one of the spouses is missing?
According to the provisions of the Civil Procedure Law, the lawsuit concerning the identity relationship brought against a person whose whereabouts are unknown shall be under the jurisdiction of the people's court of the plaintiff's domicile; Where the plaintiff's domicile is inconsistent with his habitual residence, it shall be under the jurisdiction of the people's court of habitual residence. If the whereabouts are unknown for two years, the spouse may first apply to the people's court for a declaration of disappearance, and then bring a lawsuit to the people's court after the people's court declares the disappearance.
9. How does the court generally determine that the relationship between husband and wife has indeed broken down?
Article 32 of the Marriage Law stipulates that in any of the following circumstances, if mediation fails, it is determined that the relationship between husband and wife has indeed broken down:
One is bigamy or a spouse living with others;
Two, the implementation of domestic violence or abuse, abandonment of family members;
Third, gambling, drug abuse and other bad habits;
Four, due to emotional disharmony separated for two years;
5. Other circumstances that lead to the breakdown of marriage relationship.
Other circumstances that lead to the breakdown of marriage relationship refer to the behavior that one party is sentenced to fixed-term imprisonment for illegal crimes or cannot be forgiven for rape, adultery, extramarital sex or other acts that directly and seriously harm marriage relationship.
10. Can the marriage be dissolved automatically after two years of separation?
Marriage can only be dissolved through divorce registration or court judgment or mediation. Separation, no matter how long, can't automatically dissolve the marriage. However, according to the provisions of the Marriage Law, if the husband and wife are separated for two years, the relationship between husband and wife has indeed broken down. In the lawsuit, if mediation fails, the divorce shall be granted by judgment. However, this rule cannot be applied to people who have separated without emotional discord.
1 1. How to determine that the husband and wife are in the same debt?
There are three situations in which husband and wife are in debt:
1. During the marriage relationship, in the name of both husband and wife, bear life debts for husband and wife * * *;
Second, during the marriage, the debts incurred by one spouse in his own name are generally treated as the same debts of the husband and wife, but if one spouse can prove that the creditor and the debtor have clearly agreed to be personal debts, or can prove that the property obtained during the marriage belongs to one spouse, and the creditor knows the agreement, it is the personal debt of the husband and wife;
Three, one party's personal debt before marriage, generally personal debt, but the creditor can prove that one party's pre-marital debt is used for the married family to live together, which is owned by the husband and wife.
Personal debt is a private loan owed by one party, which does not belong to the same debt used for husband and wife and family life and should be paid off by individuals. In addition, according to the relevant laws and regulations of our country, gambling debts are illegal debts and are not protected by law. If you don't want to pay back the gambling debt, you don't have to pay it back.
12, personal property will be transformed into * * * property due to the continuation of marriage?
In the past, it was stipulated that it took four years for the means of subsistence to be transformed into the joint property of husband and wife, and eight years for the means of production such as houses to be transformed into the joint property of husband and wife, but this provision did not conform to the principle of property law. Some netizens only see the provisions of the past judicial interpretation, and there are unclear understandings. Denial of the new judicial interpretation of marriage law 1993 judicial interpretation. Personal property will not be transformed into * * * property because of the continuation of marriage, and pre-marital property will always be personal property.
13. What if both parties want a house?
House is the most basic means of subsistence, especially in recent years, when house prices have soared, it is particularly important. If both parties want a house, the court will generally consider the following factors:
Who will raise the child? Under normal circumstances, who will raise the children and who will be awarded the house is more likely;
Take care of the innocent party. If the other party has four bad habits stipulated in Article 46 of the Marriage Law, namely bigamy, cohabitation, violence, abandonment or other serious faults, the court will consider the interests of the innocent party as appropriate.
If both parties have the same conditions and have no children, the court can also solve the ownership problem of the house by bidding, that is, the house is awarded to the highest bidder and the other party gets a discount.
14. Under what circumstances will children live with their parents?
/kloc-children aged 0/year and under two generally live with their parents;
2. Minor children over two years old are more likely to live with their parents if their parents have any of the following circumstances:
Has been sterilized or lost fertility for other reasons;
Children have lived with them for a long time, and changing the living environment is obviously not conducive to their healthy growth;
There are no other children, but the father has other children;
Children live with them, which is conducive to their growth, while fathers suffer from infectious diseases or other serious diseases that cannot be cured for a long time, or have other conditions that are not conducive to their physical and mental health, which is not suitable for living with their children.
The conditions for parents to raise their children are basically the same. Both sides require their children to live with them, but the children have lived alone with their grandparents for many years, and their grandparents require and have the ability to help their mothers take care of their grandchildren.
Children over the age of ten choose to live with their mothers.
15. Under what circumstances will children live with their parents?
1, children under two years old, the mother has one of the following circumstances:
Suffering from infectious diseases or other serious diseases that have not been cured for a long time, and the children are not suitable to live with them;
Having the conditions to raise children, but not fulfilling the obligation to raise them, the father requires the children to live with him;
For other reasons, children really can't live with their parents.
2. The child is under two years old, and both parties agree that the child will live with the father, which has no adverse effect on the healthy growth of the child;
3. Minor children over two years old are more likely to live with their fathers in any of the following circumstances:
Has been sterilized or lost fertility for other reasons;
Children have lived with them for a long time, and changing the living environment is obviously not conducive to their healthy growth;
There are no other children, but the mother has other children;
Children living with them is conducive to their growth, while parents suffering from infectious diseases or other serious diseases that cannot be cured for a long time, or other conditions that are not conducive to physical and mental health, are not suitable for living with their children.
The conditions for the woman to raise her children are basically the same, and both parties require the children to follow her, but the children have lived alone with their grandparents for many years, and the grandparents require and have the ability to help their fathers take care of their grandchildren;
Children over the age of ten choose to live with their fathers.