According to Article 31 of Chapter IV of China's Marriage Law, divorce shall be granted if both men and women voluntarily divorce. 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. When trying divorce cases, the people's court shall conduct mediation; If the relationship has really broken down and mediation fails, divorce shall be granted. In any of the following circumstances, if mediation fails, divorce shall be granted:
(a) bigamy or a spouse living with others;
(2) committing domestic violence or abusing or abandoning family members;
(three) gambling, drug abuse and other bad habits;
(four) separated for two years due to emotional discord;
(5) Other circumstances that lead to the breakdown of the marriage relationship. If one party is declared missing and the other party files a divorce lawsuit, the divorce shall be granted.
Extended data:
The facts of a legal case
Due to the emotional disharmony between Li and Sun, Li filed a lawsuit with the court on 20 1 10, demanding a divorce from Sun on the grounds that the two sides lacked understanding before marriage, failed to establish a husband-wife relationship after marriage, and often quarreled over family chores.
On May 2 of the same year, the court ruled that both parties were not allowed to divorce. 2012165438+127 October, the plaintiff Li sued the court again for divorce from the defendant's grandson and division of the husband and wife's property on the grounds that the two parties failed to make up.
divergence
There are two different opinions on whether the plaintiff's lawsuit can be accepted. One view is that the plaintiff has not been separated from the other party for one year since the court ruled that divorce is not allowed, which does not meet the conditions for determining that the relationship between husband and wife has indeed broken down, and his request to the court will not be accepted.
Another view is that the plaintiff's lawsuit conforms to the law and should be accepted. If the mediation fails, both parties can directly judge the divorce.
Comment and analysis
I agree with the second view for the following reasons:
In judicial practice, in order to improve the relationship between the two parties and promote family harmony and social stability, the court will make a judgment that divorce is not allowed when some husband-wife relationships have not yet broken down or one party has no evidence to prove that the husband-wife relationship has indeed reached the breaking point, so as to treat the marriage and family problems carefully and make up again.
Under the above circumstances, some parties in divorce cases can correct each other's shortcomings, strengthen communication, increase the intimacy between husband and wife, and make up. However, some parties wait for the divorce judgment to take legal effect for six months, and then bring relevant litigation materials to the court to ask for a divorce from the other party. This is the case.
Paragraph 7 of Article 124 of the Civil Procedure Law stipulates that divorce, mediation, judgment and mediation to maintain the adoption relationship are not allowed. If there is no new situation or new reason, the plaintiff will not accept the case if he brings a lawsuit within six months.
The use of domestic violence and other new situations by one party may cause serious harm to the other party at any time. According to the above provisions, six months after the court ruled that divorce was not allowed, the plaintiff once again brought relevant litigation materials to the court to ask for a divorce from the other party, which was in line with the law and the court should accept it.
The Supreme People's Court cited Article 14 in the Opinions of the People's Court on the Trial of Divorce Cases (hereinafter referred to as the Opinions) as a condition for determining that the relationship between husband and wife has indeed broken down, among which Article 7 stipulates that it is really impossible to reconcile after three years of separation due to emotional disharmony (note: this content conflicts with Article 32 of the Marriage Law and should be invalid).
Or after the people's court ruled that divorce was not allowed, they separated for one year and failed to fulfill their obligations as husband and wife. Then, after the people's court ruled that divorce was not allowed, if the two parties separated for less than one year and sued for divorce again, can the above provisions be applied?
The author believes that the most essential factor and foundation of marriage should be the feelings between husband and wife, and it is an inevitable requirement for husband and wife to live together based on feelings, which is also an important content of marriage relationship. If both parties lose the foundation of marriage feelings, there is no practical significance to continue to maintain the nominal marriage relationship.
Neither husband nor wife has fulfilled their obligations since the court ruled that divorce is not allowed. Although the two sides have been separated for less than a year, the other party sued for divorce again, which is enough to show that the relationship between husband and wife has indeed broken down. In this case, mediation failed, and the court ruled that both parties divorced according to law.
It is a mechanical and dogmatic understanding and application of the judicial interpretation of Article 7 of the Opinions, and it also violates the provisions of the Law on Accepting Cases.
People's feelings are beyond the control of the law. As a court, when dealing with divorce cases, it should not artificially impose too many restrictions on divorce, which may reduce the quality of marriage life of the parties, make their family life latent crisis, further intensify contradictions, and even lead to tragedy, which is a kind of torture and pain for both parties. This will also have a negative impact on the growth of their children and will also undermine the improvement of the court's credibility.
(Author: Shanting People's Court, Zaozhuang City, Shandong Province)
Baidu Encyclopedia-China People and China Marriage Law
China Court Network —— On the handling of the judgment of divorce not to prosecute again from this case.