The legal provisions that must be understood in Ningbo to sue for divorce.
Choosing to file for divorce through litigation inevitably means that the situation has reached a point where it can no longer be resolved through negotiation, leaving one with no choice but to resort to legal action to safeguard one’s legitimate rights and interests. People always have a natural fear of the unknown, have a fear of difficulties outside their professional field, and feel at a loss to fight a lawsuit. They think that going to the court is "troublesome". By reading the following content, you will find that the lawsuit for divorce is not unfathomable. If necessary, you can also entrust a lawyer to assist, so as not to "spend money and run the wrong way", which delays too much time and messes up the case.
1. Preliminary preparations for litigation
A legally valid marital relationship clearly exists.
Both spouses must be legally married in order to file for divorce in court. If they are in a cohabitation relationship, they must choose a different legal basis for their claim; this point must be clearly understood. Of course, it is not complicated—just a marriage certificate is sufficient.
Prepare the complaint and supporting evidence.
To file for divorce, you must submit a complaint and the relevant supporting evidence to the court. Lawsuits are not subject to strict formal requirements; they must merely include four essential elements: the basic information of the parties, the relief sought, the facts, and the grounds for the claim. The basic information of the parties must clearly state the plaintiffs’ and defendants’ names, genders, ages, addresses, and other key details sufficient to identify their identities. The claim is the central pivot around which the entire litigation process revolves; the judge’s adjudicative activities are conducted in relation to the specific matters raised in the claim, and claims that are not mentioned are generally not investigated. In divorce cases, the statement of claim does not require the same level of formal precision as in economic disputes; however, it should not be overly colloquial. For example, a divorce petition should include requests such as “requesting the court to grant a divorce,” as well as provisions regarding child custody, division of property, and whether compensation or damages are sought. In the section on facts and grounds, be sure not to simply list events in chronological order; merely state the date of marriage and the reasons that led to the breakdown of the marital relationship.
Please note the issue of jurisdiction.
A case must fall within the jurisdiction of the people’s court to which it is submitted before it can be accepted for trial. Divorce cases are generally under the jurisdiction of the people’s court in the defendant’s domicile. If the defendant has a habitual residence, the plaintiff may also file for divorce in the people’s court of the defendant’s habitual residence. In special circumstances, the plaintiff may also file for divorce at the plaintiff’s registered domicile or temporary residence. Jurisdiction generally requires the submission of supporting evidence; unless the parties reside in the same jurisdiction, legal assistance may be needed to investigate information on the mobile population.
2. Rights and obligations of the parties in divorce proceedings: Parties in any civil litigation enjoy a wide range of rights and obligations, such as appointing an agent, filing a recusal application, collecting and submitting evidence, engaging in debate, filing an appeal, and applying for enforcement.
The Civil Procedure Law of the People's Republic of China
Article 49 Parties have the right to appoint agents, file applications for recusal, collect and submit evidence, present arguments, request mediation, file appeals, and apply for enforcement.
The parties may inspect the relevant case materials and may also make copies of such materials and legal documents. The scope and procedures for reviewing and copying case-related materials shall be prescribed by the Supreme People’s Court.
The parties must exercise their litigation rights in accordance with the law, observe the rules of court proceedings, and comply with judgments, rulings, and mediation agreements that have legally taken effect.
Article 50 The parties may settle the dispute by mutual agreement.
Article 51 The plaintiff may waive or amend the claims in the action. The defendant may admit or deny the plaintiff’s claims and has the right to file a counterclaim.
Article 58: Parties and statutory agents may appoint one to two persons as litigation agents.
The following persons may be authorized as litigation agents:
(I) Lawyers, grassroots legal service workers;
(II) The party's close relatives or staff members;
(III) Citizens recommended by the parties’ communities, workplaces, and relevant social organizations.
Article 61 Lawyers acting as litigation agents and other litigation representatives are entitled to investigate and collect evidence, and may review the relevant materials of this case. The scope and procedures for reviewing the relevant materials in this case shall be prescribed by the Supreme People’s Court.
3. Time regulations in divorce litigation: In general, there is no issue of statute of limitations in divorce cases, as the marital relationship continues to exist until it is dissolved; however, caution should still be exercised.
The Civil Procedure Law of the People's Republic of China
Article 45. A party shall state the reasons when filing an application for recusal, and such application shall be made at the commencement of the trial; if the ground for recusal becomes known after the trial has commenced, it may also be raised before the conclusion of court debate.
Article 101 If an interested party does not immediately apply for preservation due to an urgent situation, which will cause irreparable damage to its legitimate rights and interests, he may apply to the place where the preserved property is located, the domicile of the respondent or the people's court that has jurisdiction over the case for preservation measures before filing a lawsuit or applying for arbitration. The applicant shall provide security; if no security is provided, the application shall be dismissed by order.
After receiving the application, the People’s Court must render a decision within forty-eight hours; if the decision is to adopt provisional measures, execution shall commence immediately.
If the applicant fails to file a lawsuit or apply for arbitration within thirty days after the people’s court has taken preservation measures, the people’s court shall lift the preservation.
Article 125 The people’s court shall, within five days from the date of filing a case, serve a copy of the complaint on the defendant, and the defendant shall file a statement of defense within fifteen days from the date of receipt.
Article 161. Where a people’s court applies the simplified procedure to hear a case, it shall conclude the trial within three months from the date of filing.
Article 149. Cases tried by the people’s courts under the ordinary procedure shall be concluded within six months from the date of filing. In cases of special circumstances requiring an extension, the extension may be granted for up to six months upon approval by the President of this Court; if a further extension is necessary, it shall be submitted to the higher-level people’s court for approval.
Article 164. A party who is dissatisfied with the first-instance judgment of a local people’s court shall, within fifteen days from the date of service of the judgment, file an appeal with the people’s court at the next higher level.
A party who is dissatisfied with a first-instance ruling of a local people’s court has the right to file an appeal with the next higher people’s court within ten days from the date of service of the ruling.
Article 176. The people’s court shall conclude the trial of an appeal against a judgment within three months from the date of filing the case in the second instance. In cases where an extension is required due to special circumstances, it shall be approved by the President of this Court.
When the people’s court hears an appeal against a ruling, it shall render a final ruling within thirty days from the date of filing the case in the second instance.
4. Necessity of property preservation: In simple terms, property preservation addresses the issue of "winning a lawsuit but not being able to collect the money" by freezing the funds before the lawsuit is filed. Although this is more commonly applied in economic disputes, if there is a situation involving the transfer of marital property, it becomes necessary to resort to this measure to safeguard one’s interests.
There are two types of property preservation: pre-litigation preservation and preservation during litigation. During the course of litigation, an application for provisional measures may be filed at any time. Furthermore, prior to filing a lawsuit, if you encounter an emergency and failure to promptly apply for property preservation would result in irreparable harm to your legitimate rights and interests, you may apply to the court for property preservation measures before initiating the lawsuit. This is known as pre-litigation property preservation.
A security deposit is required for litigation preservation, and court-ordered preservation measures also entail fees. Surety is typically arranged by a lawyer who engages a surety company, and a “surety fee” is required. When the court enforces asset preservation, a “preservation fee” must also be paid. Like litigation fees, the preservation fee is allocated between the plaintiff and defendant according to the court’s judgment, with the allocation determined based on the outcome of the case.Refundable or partially refundable upon the judgment taking effect “”, guarantee fees are generally non-refundable unless expressly provided for in the contract; clearly, divorce cases do not fall under such circumstances. As courts in various regions tighten their policies on provisional measures, the implementation of such measures will become increasingly restricted and is no longer guaranteed.
If you are the party subject to the preservation order, it is advisable to remain calm and actively cooperate with the court in carrying out the relevant procedures. In divorce proceedings, property preservation does not amount to confiscation; the final disposition of the marital property will still be determined by the court’s judgment. Furthermore, a counter-guarantee may be provided to temporarily lift the preservation order.
5. Having sufficient evidence is one thing, and winning a divorce lawsuit is another entirely. The approach to presenting evidence varies depending on the specific circumstances, which will be explained in detail in subsequent articles. This article currently only lists the relevant provisions.
Article 64 of the Civil Procedure Law stipulates that parties are responsible for presenting evidence in support of their claims. The party bearing the burden of proof shall provide evidence to substantiate the facts upon which its own claims are based, or to rebut the facts upon which the opposing party’s claims are based. If there is no evidence, or if the evidence is insufficient to prove the factual claims of a party, the party bearing the burden of proof shall bear the adverse consequences. A party shall submit the original document or the original object as evidence to the people’s court. If you need to retain the original evidence or original item yourself, or if it is genuinely difficult to provide the original, you may submit a copy or duplicate that has been verified by the people’s court as being identical to the original. If the evidence submitted by a party to the people's court was formed outside the territory of the People's Republic of China, such evidence shall be notarized by the competent notary public of the country where it was produced and undergo the certification procedures prescribed in the relevant treaties concluded by the People's Republic of China with that country. Evidence submitted by a party to the people’s court that was formed in Hong Kong, Macao, or Taiwan shall be subject to the relevant certification procedures. Where a party submits documentary evidence or explanatory materials in a foreign language, a Chinese translation shall be attached. The parties shall classify and number the evidence they submit item by item, provide a brief explanation of the source, the matter to be proved, and the content of each piece of evidence, sign and affix their seal, indicate the date of submission, and submit copies in accordance with the number of opposing parties.
Where a party is unable to collect evidence on its own due to objective reasons, it may apply to the People’s Court to investigate and collect such evidence. If any of the conditions set forth in Article 17 of the Supreme People’s Court’s “Several Provisions on Evidence in Civil Litigation” are met, the parties or their litigation agents may apply to the people’s court to investigate and collect evidence. A party or its litigation agent shall submit a written application to the people’s court when requesting it to investigate and collect evidence. The application shall specify the basic information of the person or entity being investigated, including their name or corporate name and address, the content of the evidence to be investigated and collected, the reasons why the people’s court needs to investigate and collect such evidence, and the facts that the evidence is intended to prove. A party or its litigation agent shall apply to the people’s court for investigation and collection of evidence no later than seven days before the expiration of the evidentiary period. If the people’s court does not approve an application submitted by a party or its litigation agent, it shall serve a notice of non-approval on the party or its litigation agent. The party and its litigation agent may, within three days from the day following receipt of the notice, file a written application for reconsideration once with the people’s court that accepted the application. The people’s court shall respond to the application for reconsideration within five days from the date of receipt.
A party applying to the People’s Court for preservation of evidence pursuant to Article 74 of the Civil Procedure Law shall do so no later than seven days before the expiration of the evidentiary period. If a party applies for preservation of evidence, the people’s court may require it to provide corresponding security. A party applying for an expert appraisal shall submit the application within the period for presenting evidence. A party that bears the burden of proof with respect to matters requiring expert appraisal, and which, within the time limit specified by the people’s court, fails to file an appraisal application without justifiable reason, or fails to prepay the appraisal fees, or refuses to provide the relevant materials, thereby rendering it impossible to ascertain the facts in dispute through the appraisal conclusion, shall bear the legal consequences of failing to discharge its evidentiary burden with respect to such facts. After the party’s application for an expert appraisal is approved by the People’s Court, the parties shall, through consultation, determine an appraisal institution and appraisers that are qualified to conduct the appraisal; if no agreement is reached through consultation, the People’s Court shall designate them. If a party objects to the expert opinion rendered by an appraisal institution entrusted by the people’s court and applies for a re-appraisal, and provides evidence demonstrating that one of the circumstances listed in Article 27 of the Supreme People’s Court’s “Several Provisions on Evidence in Civil Litigation” exists, the people’s court shall grant such application. Where a defective expert opinion can be resolved through supplementary appraisal, re-examination of evidence, or supplementary examination of evidence, a new appraisal shall not be ordered.
The time limit for submitting evidence in a divorce litigation may be agreed upon by the parties and approved by the People’s Court. Where the people’s court designates a period for producing evidence, such period shall be no less than thirty days and shall be calculated from the day following the date on which the parties receive the notice of acceptance of the case and the notice to appear in court. If a party genuinely encounters difficulties in submitting evidence within the prescribed evidentiary period, it shall apply to the People’s Court for an extension of the evidentiary period within that period; such extension shall be subject to the Court’s approval. Failure by a party to submit evidence within the evidentiary period shall be deemed a waiver of its right to present evidence. With respect to evidence submitted by a party after the prescribed deadline, the people’s court shall not organize cross-examination during the trial, unless the opposing party consents to such cross-examination.
6. Court Trial Procedure in Divorce Litigation The court hearing of a divorce case is generally divided into several stages, including court investigation, court debate, deliberation, and judgment. Before the formal commencement of the trial, the court clerk shall first verify the attendance of both parties and other litigation participants who are required to appear in court, including their names, ages, occupations, and other relevant details, and then report the results to the presiding judge. If the court session can proceed as scheduled, the court clerk shall announce courtroom rules and then invite the presiding judge and the other judges to take their seats. Thereafter, the presiding judge announced the formal commencement of the trial, stated the cause of action and the composition of the collegiate bench in this case, and inquired whether any party wished to request the recusal of any member of the court. If you file a recusal application, you must state the reasons. If you do not file an application or if your application is denied, the trial will proceed. In the court investigation stage, the plaintiff reads out the complaint first, and the defendant then replies. The presiding judge or judge will determine the main focus of the dispute in the case according to the arguments of both parties, organize both parties, and provide evidence and cross-examination according to the order of the plaintiff and the defendant respectively according to their own requests and claims. During the examination of evidence, the parties shall, with respect to the authenticity, relevance, and legality of the evidence, raise questions, provide explanations, and present rebuttals regarding whether the evidence has probative value and the extent of such value. If you apply to the court to investigate and obtain relevant evidence on its own initiative and such application is granted, the evidence collected by the court shall be presented in court as evidence provided by you, and the opinions of both parties shall be heard.After the court investigation, the trial entered the stage of court debate.
In the stage of court debate, the presiding judge or the judge will organize both parties to express their opinions on the focus of the dispute, focusing on the facts of the whole case, legal liability, etc. The plaintiff and his agent will first present their arguments, and then the defendant's agent. In the court debate, the speech should be closely aimed at the focus of the dispute. If the speech is not related to the case, the presiding judge or the judge has the right to stop it. If you feel that your opinion has not been fully expressed at the hearing, you can also submit your opinion in writing to the court after the adjournment. After the end of the court debate, the trial will enter the stage of deliberation and sentencing. It should be reminded here that if the plaintiff refuses to appear in court without justifiable reasons after being summoned by the court summons, or withdraws from the seat without permission during the trial, the court may withdraw the lawsuit; if the defendant counterclaims, he may make a judgment in default. If it is a defendant who refuses to appear in court without justifiable reasons after being summoned by a summons, or withdraws from court midway without the permission of the court, the court may make a judgment by default, but divorce cases are rarely absent.
Since divorce cases are lawsuits aimed at personal relationships, people's subjective will has a very strong influence on the direction of the case. In order to accelerate the progress of the case procedure, the above normal steps may be reduced or ended with a few simple sentences.
Litigation costs when 7. sue for divorce Litigation costs mainly include case acceptance fees, application fees and other litigation costs. When the court decides to accept a civil case, the prosecution party shall pay a certain fee to the court in accordance with the law, which is the case acceptance fee. The acceptance fee for divorce cases shall be 200 yuan per case. If the total amount of property does not exceed 200000 yuan, no additional fee shall be charged. If the total amount exceeds 200000 yuan, the legal fee shall be paid by 0.5. The application fee refers to the fees that the parties should pay in accordance with the provisions when applying for the execution of the people's court and the adoption of property preservation measures. There are two main categories: application execution fees and property preservation fees. In addition, there are other litigation costs that are actually incurred in the course of litigation that should be borne by the parties. It mainly includes:(1) investigation fees, appraisal fees, announcement fees and translation fees;(2) transportation, accommodation, living expenses and lost work subsidies for witnesses, experts and translators to appear in court; and (3) expenses actually incurred by the people's court in the course of enforcement. These application fees are not commonly incurred in divorce cases.
The payment of litigation costs mentioned above is only paid in advance by the plaintiff, and who should bear the cost on earth can be determined after the trial of the case. Generally speaking, the litigation costs of the first instance case are borne by the losing party. The following special circumstances of the burden of litigation costs need to be noted:(1) If the parties partially win the case and partially lose the case, the parties shall bear the burden in proportion to the responsibility. (2) A case in which an agreement is reached through mediation shall be borne by the parties through consultation. (3) The case of withdrawal shall be borne by the plaintiff, but the charge shall be halved; the case of dismissal shall be borne by the plaintiff.