Generally, one spouse asks for a divorce, but the other strongly disagrees. If one spouse has not abused, abandoned, seriously domestic violence, cohabited with others or bigamy, the general court will not judge a divorce. Ordinary beatings, adultery and even whoring may not necessarily dissolve the relationship between husband and wife in the first divorce proceedings. It is of little significance to file an appeal at this time, and the court of second instance basically upheld the judgment of the court of first instance. It takes several months from filing an appeal to an appeal judgment, which is not good for the party eager for divorce.
Therefore, if one party does not agree to divorce, it usually has to go through two lawsuits, that is, after the judgment of the first divorce lawsuit, the second divorce is filed six months after the judgment takes effect, and the court that filed the divorce for the same reason and the same fact less than six months will not accept it. When the divorce proceedings are filed for the second time, the court will basically decide divorce. If there are no announcements and other events, the whole process will take a year.
If you refuse to accept the court's judgment (mediation) after the divorce judgment of first instance, you may appeal to the intermediate people's court within fifteen days (ten days) from the date of receiving the judgment (mediation). If no appeal is made within the time limit, the judgment (mediation) will take effect. If you don't appeal in time, after the judgment (mediation) takes effect, the parties can't apply for a retrial on divorce or not, but only on property division and child support.
Plaintiff prosecution stage:
1, consult, hire a lawyer, or check the law yourself;
2. The plaintiff submits the indictment, copy and relevant evidence to the court;
3. The court examines the documents and materials submitted by the plaintiff, makes a decision on whether to file a case, and informs the reasons for rejection.
Defendant's defense stage:
1. The court will send a copy of the plaintiff's indictment to the defendant within five days from the date of filing the case, and inform the defendant to give a written reply;
2. The defendant shall file a reply within 15 days from the date of receiving the copy of the indictment served by the court. Of course, the defendant may not reply, and if the defendant needs to extend the time limit for reply, he shall apply to the court.
The rights of the defendant and the plaintiff can be seen in the notice served by the court.
Trial stage:
It is mainly heard by the court, and the plaintiff in the divorce proceedings should be present. If the defendant fails to appear in court, the trial shall be postponed once. During the trial, the two sides debated and expounded the evidence and facts submitted. The trial of ordinary divorce proceedings is divided into the following processes:
Court investigation → court debate → judge's mediation → summary by both parties.
If the court decides or mediates successfully, a conciliation statement will be issued.
1. There is also a second trial: prosecution → acceptance → trial → mediation → judgment → appeal → second trial → judgment takes effect immediately.
2. No appeal: prosecution → acceptance → trial → mediation → judgment takes effect when it expires.
3. Divorce mediation: prosecution → acceptance → trial → mediation → reaching a mediation agreement.
4. Withdrawal: prosecution → acceptance → trial → mediation → withdrawal (withdrawal can be at any stage before judgment) [1]
Five special procedures
Special protection for soldiers
(a) Ways to protect soldiers
Article 33 of China's Marriage Law (Amendment) stipulates: "The spouse of an active-duty soldier requires the consent of the active-duty soldier, unless the active-duty soldier has a major fault." Article 9 of the Opinions on Several Issues Concerning the Implementation of Civil Policies and Laws issued by the Supreme People's Court 1984 stipulates: "When a soldier disagrees with divorce, he should educate the plaintiff to cherish the husband-wife relationship with the soldier and try his best to mediate or make a judgment that divorce is not allowed."
This is the protection of military marriage specifically stipulated in China's marriage law, which is what people usually call the protection of military marriage. That is to say, under the premise that the soldiers have no major fault, the court may not decide to dissolve the marriage of the soldiers without their consent, so as to ensure that the defendants win the divorce proceedings.
The people's army shoulders the sacred responsibility of defending national security and socialist construction. It is the tradition of marriage legislation in our country to give special protection to the marriage of active servicemen, which is also in the fundamental interests of the country and the people. This provision is conducive to the stability of military orders and morale, and also fully reflects the special care of the party and the state for military personnel.
(2) Problems that should be paid attention to when applying military marriage protection.
1. The scope of active military personnel. Servicemen refer to the cadres and soldiers of the China People's Liberation Army who are in active service and have military status. Including cadres and soldiers of the Chinese People's Armed Police Force. Workers and other personnel who have not obtained military status in the army, as well as retired and demobilized personnel, do not belong to the scope of active servicemen.
2. The meaning of "the spouse of an active serviceman files for divorce". The spouse of an active serviceman asks for a divorce, which means that the spouse of a non-active serviceman asks for a divorce from an active serviceman. The provisions of this article shall not apply to both active-duty soldiers, or if active-duty soldiers and non-military spouses file for divorce.
3. Understanding of "Soldier's Consent". After the spouse of an active serviceman files for divorce, if the active serviceman himself disagrees, the people's court shall cooperate with the relevant departments to persuade and educate the spouse of the active serviceman, actively improve the relationship between husband and wife, and make a judgment that divorce is not allowed.
This provision does not apply to soldiers with gross negligence. It should be emphasized that this provision is premised, and it cannot be understood that as long as the active servicemen do not agree to divorce, the court can't decide divorce in any case. This provision does not apply to soldiers who have major faults. According to Article 23 of the Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (I) promulgated by the Supreme Court on February 24, 2006, "a serviceman has a major fault" means: committing domestic violence or abusing or abandoning family members; Bigamy or a spouse living with others; Bad habits such as gambling and drug abuse are hard to get rid of. This provision helps to protect the legitimate rights and interests of the innocent party, thus making this provision more flexible and scientific.
Special protection for women
China's marriage law protects the interests of women, fetuses and babies by restricting the man's right to divorce in divorce proceedings for a certain period of time. That is, Article 34 of the Marriage Law (Amendment) stipulates: "A woman may not file for divorce during pregnancy, within 1 year after delivery or within 6 months after termination of pregnancy. This restriction does not apply if the woman files for divorce or the people's court considers it necessary to accept the man's request for divorce. "
It should be pointed out that:
First, this provision only deprives the man of the right to file a divorce request within a certain period, that is, only during the woman's pregnancy, within 1 year after delivery or within 6 months after termination of pregnancy. After the expiration of the above period, the man can still exercise his right to divorce according to law;
Second, it only works when the man files for divorce in divorce proceedings, so both men and women voluntarily divorce and the woman files for divorce, which is not restricted by this provision. Generally speaking, women filed for divorce during this period, mostly for some particularly urgent reasons. If the court does not accept the woman's divorce request in time, it will make the physical and mental health of the woman, fetus and baby worse;
Third, when it is really necessary, the people's court has the right to decide to accept the man's divorce request. The so-called "really necessary" is generally understood in judicial practice as: when the man has a legitimate reason and the woman has a major fault or a major emergency. If the woman is pregnant with adultery, the man insists on divorce. Even so, the court should pay attention to protecting the physical and mental health of women, fetuses and babies when handling cases.
6 separation conditions
The relationship between husband and wife has indeed broken down, and mediation is invalid, which is the legal reason for judging divorce.
The legal reasons for judging divorce, also known as the legal reasons or standards for judging divorce, are the basis for the court to decide to grant divorce. Paragraph 2 of Article 32 of China's Marriage Law (Amendment) stipulates: "The people's court shall conduct mediation when trying divorce cases; If the relationship has indeed broken down and mediation is ineffective, divorce should be granted. " This provision shows that whether a man and a woman grant a divorce after filing a divorce does not depend on whether the other party agrees to divorce, but is judged by the court according to whether the relationship between husband and wife has really broken down and mediation is ineffective. It can be seen that "whether the relationship has really broken down and mediation is invalid" is the principle boundary for the people's court to determine whether to divorce or not. There are two meanings: first, if the relationship between husband and wife has indeed broken down, mediation is ineffective and divorce is allowed; Second, if the relationship between husband and wife is not broken or not completely broken, even if mediation fails, divorce is not allowed.