Insights

What is the difference between the three ways of divorce in Ningbo

Ningbo Author：LuXu WANG

There are three common forms of divorce: divorce by agreement, divorce by court mediation and divorce by judgement. Many parties do not know the difference between them or which one to choose. In fact, the three methods have obvious differences in procedures, time, effectiveness and applicable scenarios.

1. legal basis

article 1076 of the the People's Republic of China Civil Code: If both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration at the marriage registration authority in person.

Article 1079 of the the People's Republic of China Civil Code: If one of the spouses requests a divorce, the relevant organization may mediate or directly file a divorce lawsuit with the people's court. In handling divorce cases, the people's court shall conduct mediation; if the relationship has indeed broken down and mediation is invalid, the divorce shall be granted.

Article 100 of the the People's Republic of China Civil Procedure Law: When a mediation agreement is reached, the people's court shall make a mediation statement. The mediation letter shall state the claim, the facts of the case and the result of the mediation. The mediation letter shall be signed by the judge and the clerk, stamped with the seal of the people's court, and served on the parties. The conciliation statement shall have legal effect when it is signed by both parties.

2. core points

1. Divorce by agreement

applicable conditions: Both parties voluntarily divorce and reach an agreement on all matters such as child support, property division, debt handling, etc.

Handling authority: the marriage registration authority (Civil Affairs Bureau) of the place where one party's permanent residence is located. Zhejiang Province has implemented marriage registration within the province, and one party's household registration can be handled at any registration office in Ningbo in Zhejiang Province; if both parties are not registered in Zhejiang, one party must hold a residence permit.

Procedure: Both parties jointly apply for divorce registration → after a 30-day cooling-off period → jointly apply for a divorce certificate within 30 days after the expiration of the cooling-off period. Ningbo parties can make an appointment for registration in advance through Zheli Office APP "Zhejiang Marriage"; Both parties must be present together within 30 days after the expiration of the cooling-off period to obtain the certificate, and the overdue period shall be deemed as withdrawal.

Advantages: simple procedure, low cost, relatively fast time (the fastest 31 days).

Disadvantages: Both parties need to be completely voluntary and consensus through consultation; The divorce agreement is not enforceable and the other party will have to sue separately if it fails to perform. Either party may withdraw unilaterally during the cooling-off period.

2. Court mediation of divorce

applicable conditions: The parties are willing to divorce, but some matters may require court mediation, or they hope that the mediation will be enforceable.

Agency: People's Court.

Procedure: One party sues the court for divorce → the court organizes mediation → the two parties reach a mediation agreement → the court makes a mediation statement → the two parties sign and take effect.

Advantages: The mediation agreement has enforcement power, and the other party can directly apply to the court for enforcement if it fails to perform; it does not need to go through a 30-day cooling-off period; the court can review the content of the agreement to ensure that it is legal and effective.

Disadvantages: Need to go through the case, mediation and other litigation procedures, the time cost and economic cost is higher than the agreement divorce.

3. Judgment of Divorce

applicable conditions: one party asks for divorce, the other party does not agree to divorce, or the two parties cannot reach an agreement on issues such as child support and property division.

Agency: People's Court.

Procedure: One party sues the court → the court fails to mediate → the court hearing → the judgment is made. Those who are not satisfied with the judgment of first instance may appeal within 15 days.

Advantages: applicable to the negotiation of the situation, the court in accordance with the law, with enforcement power, can deal with complex property and children in accordance with the law.

Disadvantages: the procedure is complex and takes a long time (the first instance usually takes 3-6 months, and the appeal is longer); the result is uncertain; the litigation cost is high.

3. boundary conditions

  • after the divorce by agreement, if the other party is found to be hiding or transferring property, it can be sued for another division within three years.
  • The mediation agreement reached by the court to mediate the divorce shall take effect as soon as it is signed and shall not be appealed, but it may be applied for retrial.
  • After the judgment of divorce is served, there is a 15-day appeal period, and if either party appeals during the appeal period, the first instance judgment shall not take effect.
  • Foreign-related marriage, military marriage and other special circumstances, divorce and jurisdiction of the court has special provisions.

4. operational steps

1. Assess your own situation and choose the right way

  • if both parties can reach an agreement through consultation, priority shall be given to divorce by agreement.
  • If the transfer of real estate, payment of money, etc. requires enforcement, the court shall be chosen to mediate the divorce.
  • If one party does not agree to divorce or is unable to negotiate, the divorce shall be decided.

2. Handling of divorce by agreement

  • draft divorce agreement to clarify child support, property division, debt assumption
  • both parties should bring their residence booklet, ID card and marriage certificate to the Civil Affairs Bureau to apply (Ningbo parties can make an appointment in advance through Zhejiang's APP "Zhejiang Marriage" to avoid queuing at the scene)
  • joint receipt of divorce certificate after expiration of cooling-off period

3. Court mediation for divorce

  • sue for divorce in court
  • mediation under the auspices of a judge
  • after a mediation agreement is reached, a mediation letter is produced by the court.
  • The parties sign the mediation agreement and the marriage is dissolved.

4. Handling of Divorce Judgment

  • preparation of Complaint and Evidence
  • file a case with a court of competent jurisdiction
  • attend court hearings to provide evidence and debate on focal issues such as emotional breakdown, division of property, and child support.
  • After receiving the judgment, decide whether to appeal

5. common mistakes

myth 1: "Agreement divorce is the fastest, so everyone should choose agreement divorce"

error. Although the procedure of divorce by agreement is simple, it requires full voluntariness and consensus of both parties. If there is a property dispute or the other party does not cooperate, the divorce agreement may be more time-consuming.

Misunderstanding 2: "Court mediation divorce and divorce by agreement"

error. Court mediation divorce by the court issued a mediation statement, with enforcement, which is the agreement divorce does not have the advantage. Involving real estate transfer, money payment, court mediation divorce more secure.

Myth 3: "Divorce judgment must be a long lawsuit"

not necessarily. If the evidence is sufficient at the time of the first prosecution, or if the other party agrees to divorce, the court may decide more quickly. Even if the first sentence is not sentenced to leave, the court should be sentenced to leave again after one year of separation.

Practical Experience of 6. Lawyers

when choosing a divorce method, many people are used to asking "which is the fastest" first, but it is often not the speed that really determines the success or failure, but whether you and the other party can talk about the core interests. If both parties only have differences on custody or the division of a certain property, but both agree to divorce, then litigation mediation is a more stable way instead-the mediation document issued by the court is enforceable on the spot, and the other party goes back on its word or does not cooperate with the transfer afterwards. You can directly apply for execution with the mediation document without going through the procedure again. However, the threshold for divorce by agreement seems to be the lowest. Once the other party takes the opportunity to go back on its word or temporarily increase the price during the cooling-off period, all previous negotiations will return to zero, which is equivalent to returning the initiative to the other party.

Judging from the pace of handling the case, the evidence and property clues should be spread out at the same time when the divorce idea is officially moved for the first time, instead of waiting until the talks collapse. Many parties mistakenly thought that "there is no need to prepare for the achievement". As a result, the other party quietly transferred deposits and disposed of shares at a low price during the negotiation period. Only when they entered the lawsuit did they find that the property was already indivisible. No matter which path you eventually take, sorting out the ownership and changes of bank accounts, real estate, equity, and provident funds in advance can give you more confidence at the negotiation table. If the other party is obviously procrastinating, it is also necessary to be psychologically prepared: it is normal to judge divorce and not to judge divorce in the first instance. At this time, do not repeatedly entangle "why not to leave", but immediately enter the state of separation and fix the evidence, and pave the way for the second lawsuit with the rule of "separation for another year after the judgment takes effect"-in many cases, the other party is not really afraid of divorce itself, instead, he was dragged into a tug-of-war that was increasingly detrimental to him.

At the level of negotiation, you can first find out the real bottom line of the other party: does he loathe to give up his children, lose face, or care about money most? It is much more effective to set conditions for different weaknesses than generally "taking a step back. For example, within the other party's system, those who care about the unit's wind evaluation, the appropriate pressure point is located in reputation rather than amount. If the other party keeps its money, it uses the fact that "the longer it takes to repay the loan together and the more accumulation fund, the greater the percentage it can accumulate" to counter its delay strategy. If you think clearly about the acceptable lower limit and the upper limit you want to fight for, the negotiations will not be passive.