Insights

How to Accuse Divorce for the First Time in Ningbo

Ningbo Author：LuXu WANG

Many parties hope to divorce their marriage in the first lawsuit and avoid going through a long second or third lawsuit. However, in practice, it is very common for the court to deny divorce after the first divorce. The key to whether the first prosecution can be divorced is still whether the evidence proves that the relationship has indeed broken down. So, under what circumstances is it easier to obtain court support for the first divorce? How should the parties prepare?

1. legal basis

article 1079 of the the People's Republic of China Civil Code: When the people's court hears a divorce case, it shall conduct mediation; if the relationship has indeed broken down and mediation is invalid, the divorce shall be granted. Divorce shall be granted if mediation fails under any of the following circumstances: (1) bigamy or cohabitation with others; (II) domestic violence or abuse or abandonment of family members; (III) gambling, drug abuse and other bad habits do not change after repeated education; the (IV) has been separated for two years due to emotional discord; (V) other circumstances that lead to the breakdown of the relationship between husband and wife.

After the people's court has ruled that divorce is not allowed, the two parties have been separated for one year, and one party files divorce proceedings again, the divorce shall be granted.

2. core points

1. The core of the first prosecution's divorce: proving that the relationship has indeed broken down.

The only criterion for the court's decision on divorce is that "the relationship between husband and wife has indeed broken down and mediation is invalid". Therefore, when the first prosecution, the plaintiff must organize the evidence around this standard. Courts usually do not support empty claims of "emotional breakdown" without evidence.

2. Five cases in which the law should be sentenced. Bigamy or cohabitation with others: marriage registration records and cohabitation evidence (such as co-residence certificate, photos, videos, chat records, etc.) are required. There are such examples in Ningbo: in the divorce case heard by Meishan Court of Beilun District Court, the husband bigamy and gave birth to two children with others. The court decided to compensate 150000 yuan in accordance with Article 1088 of the Civil Code and supported compensation for damages of 50000 yuan. The Ningbo Intermediate People's Court maintained in the second instance (according to the report of Zhejiang Rule of Law News 2021-10-13)-the divorce case was fully proved, the divorce could be divorced after the first prosecution, and claimed, and damages could be claimed. Domestic violence or abuse, abandonment of family members: Alarm records, injury identification, hospital diagnosis certificate, women's federation or neighborhood committee mediation records, witness testimony, etc. shall be provided. Gambling, drug abuse and other bad habits: The punishment record of public security organ, drug rehabilitation center certificate, gambling evidence, family dissuasion record, etc. shall be provided. After two years of separation due to emotional discord: separation agreement, rental contract, water and electricity payment records, witness testimony, chat records, etc. shall be provided to prove that the two parties are separated due to emotional discord rather than work, study and other reasons. Other circumstances that lead to the breakdown of a couple's relationship: If one party is declared missing, long-term failure to perform the obligations of husband and wife, there is a serious fault, etc. 3. The defendant agreed in court that divorce was the fastest way.

If the defendant expressly consents to the divorce during the trial, the court will generally respect the wishes of both parties and mediate or adjudicate on the division of property and child support. At this point, the parties only need to agree on property, children or wait for a court decision.

4. Priority of evidence collection

  • evidence of identity: marriage certificate, residence booklet, birth certificate of children
  • evidence of emotional breakdown: separation proof, fault evidence, communication records
  • evidence of property: real estate, vehicles, deposits, equity, debt, etc.
  • Evidence of child support: proof of income, living conditions, photos of children's life, educational planning, etc.

3. boundary conditions

  • only occasional quarrels, cold war and other general contradictions are not enough to determine the breakdown of the relationship.
  • If one party firmly disagrees with the divorce and there is no legal divorce, it is more difficult to decide the divorce for the first time.
  • Even if there is a legal divorce, insufficient evidence may result in the court not finding it.
  • In the case of a military marriage, if the spouse of an active-duty soldier requests a divorce, the consent of the soldier shall be obtained, except in the case of a major fault on the part of the soldier.

4. operational steps

1. Evaluating evidence of emotional breakdown before prosecution

  • according to Article 1079 of the Civil Code, judge whether there is a legal divorce.
  • Combing the existing evidence and assessing the adequacy and probative force of the evidence
  • if the evidence is insufficient, the fixed evidence shall be supplemented before the prosecution.

2. Focus on fixing key evidence

  • evidence of separation: signing a separation agreement, retaining the rental contract, utility bills, property fee records
  • evidence of domestic violence: report to the police, seek medical treatment, take photos and apply for a personal safety protection order at the first time.
  • Evidence of infidelity: keep chat records, transfer records, certificates of common residence, photos and videos
  • evidence of vice: collection of public security organs punishment decision, detoxification certificate, gambling records

3. Reasonable design of litigation claims

  • in addition to requesting a divorce, claims for child support, property division, debt assumption, etc. should also be clarified.
  • If the other party is at fault, it may also claim damages for divorce.
  • If you pay more to your family, you can claim financial compensation for divorce.

4. Key points for attention in the trial

  • develop a statement around the breakdown of the relationship and avoid too much trivia.
  • Rebuttal of the facts claimed by the other party in a timely manner to avoid adverse self-admission.
  • Propose a clear and reasonable plan for property and children

5. common mistakes

myth 1: "The first prosecution will definitely not be sentenced to divorce, so there is no need to prepare"

error. If the evidence is sufficient, the first prosecution can be sentenced to leave. Even if the first conviction is not granted, sufficient evidence can lay the foundation for a second prosecution.

Myth 2: "As long as I say the relationship is broken, the court will believe it"

error. The court's decision to leave requires evidence to support it. Empty claims are difficult to accept, and concrete evidence of emotional breakdown must be provided.

Myth 3: "If the other party agrees to divorce, you don't have to worry about property"

error. Even if both parties agree to divorce, the court may still rule against divorce if the division of property and the maintenance of children are controversial. Therefore, property and children issues also need to be negotiated or prepared in advance.

Practical Experience of 6. Lawyers

it is understandable to hope that the marriage will be divorced on the first prosecution, but first accept the reality that it is quite common for the first prosecution to be ruled against divorce. The core of the divorce is whether the evidence can prove that the relationship between husband and wife has indeed broken down. If there are legal circumstances such as bigamy, domestic violence or separation for two years and the evidence is sufficient, the court shall decide on divorce. Therefore, the focus of the preparation is not to state repeatedly how bad the other party is, but to put the legal standard that the relationship has indeed broken down one by one with evidence so that the referee can see and recognize it.

The organization of evidence should revolve around the statutory situation. Those who advocate separation should be able to prove the starting and ending time and continuity of separation. Rental contracts, residence certificates, witness testimony and exchange records can all be used. For those who advocate domestic violence, the alarm receipt, warning letter, medical record and injury photos should be linked. Those who advocate bigamy or cohabitation with others, gambling habits, etc., should have materials that can reflect the continuity and seriousness. At the same time, the fact that mediation is invalid should be made clear, and the part involving maintenance and property should also be prepared to avoid taking care of one thing and losing the other.

If you fail to judge for the first time, don't get stuck in the emotion of why you didn't judge. It is more effective to immediately stabilize the state of separation and fix the evidence to pave the way for a second lawsuit-if the two parties are separated for another year after the divorce is not allowed and one party sues again, the divorce should be granted, a rule that is often more useful than repeated arguments. What's interesting is that when the other party realizes that continuing to delay will only push him to a more unfavorable situation, it is easier to be pulled back to the negotiating table. Stepping on the rhythm is closer to the result you want than just pushing.