Insights

What if one party goes back on his word during the cooling-off period of divorce in Ningbo

Ningbo Author：LuXu WANG

Agreed divorce requires a 30-day cooling-off period, which is a huge test for the party eager to divorce. During the cooling-off period, if the other party suddenly repents and goes to the Civil Affairs Bureau to withdraw the divorce application, what should the other party do? Is this marriage forever?

1. legal basis

article 1077 of the the People's Republic of China Civil Code: Within 30 days from the date of receipt of the application for divorce registration by the marriage registration authority, if either party is unwilling to divorce, it may withdraw the application for divorce registration from the marriage registration authority. Within 30 days after the expiration of the time limit specified in the preceding paragraph, both parties shall apply in person to the marriage registration office for the issuance of a divorce certificate; if they fail to apply, the application for divorce registration shall be deemed to have been withdrawn.

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.

2. core points

1. The legislative purpose of the cooling-off period system.

The cooling-off period for divorce is a new system added to the Civil Code to prevent couples from divorcing hastily on impulse and to give both parties a buffer and an opportunity for reflection. During the cooling-off period, any party can unilaterally withdraw the divorce registration application as long as it expresses its unwillingness to divorce.

2. Legal consequences of one party's recriminations

if one of the parties withdraws the divorce application during the cooling-off period, the divorce proceedings by agreement shall be terminated and the marital relationship between the two parties shall continue to exist. If the other party still insists on divorce, it can only be resolved through renegotiation or divorce proceedings.

3. If the certificate is not jointly obtained after the expiration of the cooling-off period, it shall be deemed to be withdrawn.

Even if neither party withdraws the application during the cooling-off period, if both parties do not jointly apply for a divorce certificate at the marriage registration authority within 30 days after the expiration of the cooling-off period, the application for divorce registration shall be deemed to be withdrawn by law. As a result, divorce by agreement requires both parties to be present together at two key points in time.

4. Two coping paths after repentance

renegotiation: If the two parties still have a basis for negotiation, they can communicate again and try to reach an agreement and then apply for divorce again. However, it should be noted that re-application still requires a 30-day cooling-off period.

Divorce: If the other party firmly disagrees with the divorce, or the two parties cannot reach an agreement on property or children, the other party can directly file a divorce lawsuit in the court. Litigation divorce is not subject to a cooling-off period.

3. boundary conditions

  • withdrawal during the cooling-off period must be handled by one of the parties in person at the marriage registration office, and oral notice or a private expression of repentance by one of the parties does not have legal effect.
  • If a party is coerced or fraudulently withdraws the application during the cooling-off period, it can provide evidence to prove and claim rights, but in practice it is more difficult to prove.
  • During the cooling-off period, both parties still belong to the relationship of husband and wife, and the property changes and debts of either party may affect the rights and interests of the other party.
  • If the other party is found to have transferred property during the cooling-off period, the evidence shall be fixed in time to prepare for subsequent litigation.

4. operational steps

1. Prevention of the other party's repentance

  • before applying for an agreed divorce, try to ensure that both parties reach a clear agreement on the division of property, child support, etc.
  • The terms of the divorce agreement should be fair and reasonable to avoid obvious disadvantage to one party and reduce the other party's motivation to go back on his word.
  • Keep a moderate distance during the cooling-off period, neither intensify the conflict, nor over-heat, to avoid the other side of the emotional misjudgment.

2. The response after the other party goes back on its word

  • understand the real reason for the other party's reneging: whether it is emotional harmony, property reneging, or being influenced by others.
  • If negotiation is still possible, renegotiate and clarify the rights and obligations of both parties
  • if the other party firmly disagrees with the divorce, immediately prepare for the divorce proceedings.

3. Prepare for Divorce Proceedings

  • collect evidence of emotional breakdown, such as separation evidence, communication records, evidence of the other party's fault, etc.
  • Collating evidence of joint property and debts of husband and wife
  • determine child support plans and prepare evidence of support conditions in your favor.
  • Entrust a lawyer to draft a complaint and bring a lawsuit to the court.

4. Protection of their own property rights and interests

  • during the cooling-off period, pay attention to whether the other party has transferred or concealed property.
  • Retain evidence of bank flow, real estate information, equity information, etc.
  • If it is found that the other party has transferred property, it may claim that the other party has less or no property in the divorce proceedings.

5. common mistakes

myth 1: "If the other party reneges on his word during the cooling-off period, I will never be able to divorce"

error. Agreed divorce requires both parties to voluntarily, one party's reneging will indeed lead to the failure of the agreed divorce, but the other party can still dissolve the marriage through litigation divorce.

Myth 2: "You can only wait during the cooling-off period and do nothing"

error. During the cooling-off period, you can actively prepare evidence, consult lawyers, and plan litigation plans. If the other party has the transfer of property and other acts, should also take timely measures.

Myth 3: "After the other party goes back on its word, I can make up with him once more"

not necessarily. If the other party goes back on his word because of property problems or does not want to divorce at all, simple communication is difficult to solve the problem. At this time should be rational assessment, if necessary, direct litigation.

Practical Experience of 6. Lawyers

during the cooling-off period, the other party goes back on its word, and the consequences should be clarified as soon as possible: as long as one party expresses its unwillingness to leave, it can unilaterally withdraw the divorce registration application, the divorce procedure by agreement will be terminated, and the marriage relationship will continue to exist. In the face of this situation, the most taboo is to repeatedly ask the other party to turn back and drag the time in meaningless pulling. What you have to do is to judge immediately whether the other party is simply emotional repetition, or is going to use the cooling-off period to renegotiate the conditions, or is simply delaying-only after the judgment is clear can you know whether to talk or sue next.

If there is still room for negotiation, fix what has been negotiated as soon as possible, instead of just stopping at words. If you can get the other party to register again, you should pay close attention to the materials and time. If the other party wants to increase the price by going back on its word, it will weigh whether the price increase is worth it, and think clearly about the lower limit and the upper limit before responding. At the same time, keep the records of the previous negotiation process and the other party's claims of repentance-these are not only clues to judge their true intentions, but also may become references in future litigation.

If you judge that the other party is delaying, has no intention of making up or negotiating in good faith, don't wait for it to change its mind. Directly suing for divorce is often a more neat choice. Prosecution does not mean that the door is welded to death. Mediation runs through the whole process in litigation, and negotiation can be set aside at any time. If the talks are not concluded, the judgment will push forward. It should be reminded that the cooling-off period is only a buffer for divorce by agreement. It is not an obstacle that you can never leave if you want. It is much more useful to see the other party's intentions clearly and switch paths in time than to dry the door of the Civil Affairs Bureau.