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.
I. Divorce by agreement
Concept and conditions of divorce by agreement
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.
(two) the competent authorities and procedures for divorce by agreement
The civil affairs department is responsible for divorce through administrative procedure 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. When Hong Kong residents, Macao residents, Taiwan Province residents, overseas Chinese and foreigners apply for divorce registration, in addition to the above-mentioned documents and supporting materials, Hong Kong residents, Macao residents and Taiwan Province residents should also show their valid passports and identity cards, and overseas Chinese and foreigners should also show their valid passports or other valid international 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.
(3) Cancellation of divorce registration
If one party who applies for divorce cheats for divorce registration, the marriage registration office shall cancel the divorce registration, declare the dissolution of the marriage by the divorced party invalid, and withdraw the divorce certificate.
If a party considers that it meets the conditions for divorce, it may apply for administrative reconsideration according to law; If he refuses to accept the reconsideration decision, he may bring an administrative lawsuit according to law.
Second, litigation divorce
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, and one party files a lawsuit against the people, and the people's court decides to dissolve the marriage relationship through mediation or judgment 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 applied, cases of marriage and identity confirmation, and other civil cases that cannot be mediated according to the nature of the case. " 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.
(A) two special protections in litigation divorce
1. Special protection for soldiers in litigation divorce. 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 the judicial interpretation and trial practice, the so-called "really necessary" mainly refers to the following two situations: (1) During this period, both parties cannot continue to live together for serious and urgent reasons, which has 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.
(B) the legal principles of litigation divorce
The purpose of divorce proceedings is to dissolve the marriage relationship, and whether the marriage relationship can be dissolved depends on whether there are legal reasons for divorce. Therefore, the legal cause of divorce is the reason for one party to file a divorce lawsuit and request to dissolve the marriage relationship, and it is the basis for the people's court to decide whether to approve the divorce. Paragraph 2 of Article 32 of the Marriage Law stipulates that the people's court shall conduct an investigation when trying a divorce case. If the relationship has really broken down and mediation fails, the divorce shall be granted. Therefore, whether the relationship between husband and wife is broken is the principle of divorce in China. In the third paragraph of this article, the specific circumstances of granting divorce are listed, thus establishing the illustrative judgment standard of divorce combining abstract generalization with concrete enumeration. Even if one of the divorced parties is at fault, the people's court should decide to grant divorce as long as there are legitimate reasons for divorce.
According to Article 32 of the Marriage Law and the Supreme People's Court's "Several Specific Opinions on How People's Courts Determine that Husband and Wife's Feelings have Really Broken", in June 1 989 65438+1October 2 1 day, if mediation fails, it shall be deemed that the feelings have really broken: (1) Bigamy or a spouse and. (2) committing domestic violence or abusing or abandoning family members; (three) gambling, drug abuse and other bad habits; (4) separated for 2 years due to emotional disharmony; (5) One party cannot have sex due to physical defects or other reasons, and it is difficult to cure; (6) Marry hastily because you don't know before marriage, and it is difficult to live together without establishing the feelings of husband and wife after marriage; (7) Concealing that he is suffering from 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 being cured for a long time; (8) After the marriage registration, both parties have not lived together and there is no possibility of reconciliation; (9) Due to emotional disharmony, the people's court ruled that divorce is not allowed, and they have been separated for 1 year, and failed to perform the obligations of husband and wife; (10) One party has committed adultery or illegally cohabited with others, and still refuses to repent after education. The innocent party files a divorce lawsuit, or the wrong party files a divorce lawsuit, but the other party does not agree to divorce. After criticism, education and punishment, the people's court ruled that divorce was not allowed, and the wrong party really could not file a divorce lawsuit. (1 1) One party is sentenced to long-term imprisonment according to law, or his illegal and criminal acts seriously hurt the feelings of husband and wife; (12) Where one party declares missing and the other party files a divorce lawsuit; (13) The relationship between husband and wife did break down for other reasons.
(3) the procedure of litigation divorce:
1, drafting a complaint;
2. Prepare the evidence needed for litigation;
3. Submit the complaint and evidence to the court with jurisdiction;
4. The court decides whether to accept the lawsuit;
5. After the court accepts the divorce proceedings, it sends a copy of the complaint to the other party within the legal time;
6. The court arranges the court session time and sends subpoenas to both parties;
7. Court hearing: both parties can entrust lawyers or other professionals to represent the litigation (in general, both parties to divorce 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.
Problems needing attention in divorce proceedings
1, jurisdiction
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. Mediation.
Mediation is, in principle, a necessary procedure for people's courts to hear divorce cases. If the parties are really 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. Litigation evidence
In divorce proceedings, both parties must produce evidence to support their claims, including:
(1) Evidence that can prove that his divorce request complies with the law;
(two) the other party is at fault, which can prove that the other party is at fault;
(3) Evidence that both husband and wife have common property;
(4) If you want to fight for the custody of children, you need to prove that you have the ability to support them;
4. Judgments and appeals
Divorce cases in which mediation fails shall be decided by the people's court. 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.
Third, foreign-related divorce.
1. Foreign-related marriage refers to the marriage between citizens of a country and foreigners (including stateless persons), including foreign-related marriage and divorce. In China, "foreign-related marriage" also refers to the marriage between China citizens and foreigners, mainland residents and Hong Kong residents, Macao residents, Taiwan Province residents and overseas Chinese. According to the law of China, China citizens and foreigners shall apply the law of the place of marriage, and divorce shall apply the law of the place where the court accepts the case. The marriage or divorce of foreign-related marriage parties in China must be handled in accordance with the laws of China.
2. Apply for recognition of divorce judgments of foreign courts.
The Regulations on the Administration of Marriage Registration stipulates that when registering a marriage, the divorced person should also hold a divorce certificate, which requires the divorce judgment made by a foreign court to be effective. The Supreme People's Court's "Provisions on Issues Related to People's Courts Accepting Foreign Courts' Applications for Recognition of Divorce Judgments" stipulates as follows:
First, China citizens apply to the people's court for recognition of the divorce judgment of foreign courts, and the people's court should not refuse to accept it on the grounds that they have not entered into a marriage relationship in China; When China citizens apply for the recognition of divorce judgments made by foreign courts in default, they shall also submit to the people's court the relevant supporting documents that the foreign court that made the judgment summoned them to appear in court according to law.
Two, foreign citizens apply to the people's court for recognition of foreign court divorce judgment, if the original spouse of divorce is a citizen of China, the people's court shall accept it; If the divorced ex-spouse is a foreign citizen, the people's court will not accept it, but may inform him to apply directly to the marriage registration authority for remarriage registration.
Three, the parties apply to the people's court for recognition of the validity of the foreign court's divorce mediation, the people's court shall accept it, and review it according to the "Provisions on the Procedures for China Citizens to Apply for Recognition of Foreign Courts' Divorce Judgments" and make a ruling on recognition or disapproval.
The divorce proceedings accepted by the people's courts in China are governed by Chinese laws, which involve the issues of women's support and property division, which are basically the same as those mentioned above in general divorce cases. Please refer to the relevant chapters and do not repeat them here. [Edit this paragraph] The concept and reason of dissolution of marriage 1. The termination of marriage means that the legal and effective relationship between husband and wife is destroyed by certain legal facts.
2. The termination of marriage can only be caused by 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 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.