Why Ningbo's Second Prosecution Still Sentenced

Many parties involved believe that as long as they file for divorce a second time, the court will inevitably grant the divorce. However, in practice, it is true that the second prosecution is still not allowed to divorce-which makes the parties very confused: how many times do they have to sue before they can leave? Why didn't the court support it? Conclusion First: The second lawsuit for divorce is not necessarily a divorce, and the court still takes "the relationship has indeed broken down" as the judgment standard. If the plaintiff fails to provide new evidence of emotional breakdown, or there are special circumstances such as child support disputes and the other party's firm and good, the second lawsuit may still not be sentenced to divorce. However, the law provides a “safety‑net provision”: if, after a people’s court has ruled against granting a divorce, the parties continue to live separately for one full year, and one party subsequently files another divorce lawsuit, the divorce shall be granted.

1. Breakdown of Legal Basis and Judgment Standards

Article 1079 of the the People's Republic of China Civil Code is the core clause of divorce proceedings: if one of the spouses requests divorce, the relevant organization can mediate or directly file divorce proceedings with the people's court; the people's court should mediate when hearing divorce cases; if the relationship has indeed broken down and the mediation is invalid, the divorce should be granted. This article lists the legal circumstances under which divorce should be granted: bigamy or cohabitation with others; domestic violence or abuse or abandonment of family members; gambling, drug abuse and other vices that do not change after repeated education; separation for two years due to emotional discord; and other circumstances that lead to the breakdown of the relationship between husband and wife. If one party has been declared missing, and the other party files for divorce, the divorce shall be granted. The final provision, known as the “catch‑all clause,” states: If, after a people’s court has ruled against granting a divorce, the parties have lived separately for another full year, and one party subsequently files for divorce again, the divorce shall be granted.

Deconstructing the Court’s Reasoning: The sole criterion for a divorce judgment is whether “the marital relationship has indeed broken down”; the number of times a lawsuit is filed is not, in itself, a determining factor. The reason for the high proportion of divorce in the second prosecution is that after the first lawsuit and time precipitation, the evidence of emotional breakdown is more sufficient and the possibility of harmony is lower. However, if the second prosecution is still the old evidence and old reasons for the first time, the court may still think that the relationship has not broken down. Also related to the procedure is Item 7 of Article 127 of the the People's Republic of China Civil Procedure Law: divorce cases where divorce is not allowed and mediation is good, cases where adoption is maintained by judgment or mediation, and there are no new circumstances or new reasons. If the plaintiff sues again within six months, it will not be accepted-if there is no new circumstances or new reasons after the first judgment that divorce is not allowed, it will take six months to sue again; divorce cases in which the plaintiff withdraws or is treated as withdrawn are also subject to a six-month resuit limit (mutatis mutandis).

2. Common reasons why a second divorce lawsuit still results in no divorce being granted

Summarized according to practice, there are mainly five categories: first, the evidence is insufficient, and it is impossible to identify the emotional breakdown-the second prosecution is still a general statement of "bad feelings" and "frequent quarrels", without providing new evidence (separation proof, fault evidence, no improved communication record), and the court thinks that there is still a possibility of peace. Second, the two sides have a big dispute over the upbringing of their children-both insist on fighting for the right of upbringing or prevaricate with each other and do not want to upend them. Based on the principle of maximizing the interests of minors (Article 1084 of the Civil Code), the court may not give a temporary divorce to urge the two sides to reach an agreement on upbringing. Third, the defendant firmly disagrees with the divorce and is willing to improve the relationship-the defendant expresses good will and makes specific commitments (correcting mistakes, strengthening communication, improving family economic arrangements) in the trial, and the court may find that there is still a possibility of peace. Fourth, the two lawsuits were filed within a short interval, and the period of separation was insufficient—following the first judgment, the parties did not actually live separately, or their separation was brief, and thus a sufficient evidentiary chain demonstrating the breakdown of the marital relationship was not established. Fifth, there are situations in which one party needs special protection (for example, the man's lawsuit is limited within one year after pregnancy and delivery-Article 1082 of the Civil Code restricts the man's lawsuit for divorce during the woman's pregnancy, within one year after delivery or within six months after termination of pregnancy, except when the woman's lawsuit or the court deems it necessary to accept the man's request), or there are procedural obstacles.

The Correct Application of the Clause of "No Divorce for One Year after Judgment" in 3.

The last paragraph of Article 1079 of the Civil Code is the "winner and loser" of the second or even the third prosecution: after the divorce is not allowed by the judgment, the two parties have been separated for another year, and if one party sues again, the court "should" grant the divorce-change "can be sentenced to divorce" into "must be sentenced to divorce". The application of this paragraph must meet three requirements: first, there was an effective judgment of "divorce is not allowed by the judgment" (mediation, reconciliation and withdrawal are not included, and evidence needs to be accumulated again); Second, after the judgment came into effect, the two parties began to separate, and the reason for separation was emotional discord rather than objective reasons such as work and medical treatment. Third, the separation lasted for one year. Proof of separation includes: rental contract, water and electricity payment records, community or unit certificates, records of exchanges between the two places, communication records of non-performance of husband and wife obligations after separation, etc. If the two parties have met the condition of "separation for one year" at the time of the second prosecution, the paragraph should be explicitly cited in the indictment and the trial, claiming that the sentence should be sentenced.

4. Case Perspective: Different Trend of Two Prosecutions

(Example, fictional) Mr. Qian filed for divorce for the first time; at the hearing, his wife expressed her willingness to reform and salvage the marriage, and the court ruled against granting the divorce. After the judgment took effect, Mr. Qian moved out of their shared residence and began living in a rented apartment, and the two have been living separately ever since. Eight months later, Mr. Qian sued for divorce for the second time. He still did not submit new evidence such as separation and communication records on the grounds of "emotional discord". His wife once again expressed his willingness to make up. The court held that the separation time was short and the evidence of emotional breakdown was insufficient, and once again ruled that divorce was not allowed. Mr. Qian continued to separate and sued for the third time after a total of one year. He also submitted the rental contract, water and electricity records and witness testimony to prove that "he has been separated for one year after the judgment". The court decided to grant divorce according to the last paragraph of Article 1079 of the Civil Code. The deduction fully shows the path of "the second non-judgment of divorce → the separation of one year → the third time should be judged.

The real judgment also confirms that "the second prosecution is not necessarily a divorce": there are cases where the second prosecution is still not allowed to divorce, and the reasons are concentrated in the evidence is not updated, the support dispute is not pending, the defendant has strong goodwill and so on. For the parties, instead of betting on "the second must leave", it is better to use the time between each prosecution-fixed separation, collecting evidence of fault, resolving the custody dispute, so that each prosecution is based on a fuller emotional breakdown in fact.

5. Common Misunderstandings and Positive Solutions

Misunderstanding 1: The divorce court must judge the divorce for the second time. positive solution: the second prosecution has a high probability of judgment, but it is not inevitable; the court still examines whether the feelings have indeed broken down, and only when it meets the legal circumstances or the evidence is sufficient can the judgment be made.

Myth 2: If the court does not grant a divorce on the first attempt, you can immediately file another lawsuit. Positive Solution: If there is no new situation or new reason after the divorce is not allowed, it must wait for six months (Item 7, Article 127 of the Civil Procedure Law); Prosecution after withdrawal is also limited to six months, and premature prosecution will not be accepted.

Misunderstanding 3: As long as the separation is completed for one year, the marriage will be dissolved automatically. Positive Solution: After one year of separation, it is only an important basis for the court to decide the divorce, and it will not automatically dissolve the marriage relationship; it is still necessary to file a lawsuit to the court, and the court will decide or mediate the divorce.

Misunderstanding 4: The evidence of emotional breakdown is almost the same, and re-prosecution is just a formality. Positive explanation: Each prosecution should have "new additions"-new separation facts, new fault evidence, new communication records. The degree of evidence update directly determines the judge's inner conviction of emotional breakdown.

6. operation steps and evidence list

① Plan immediately after the first judgment comes into effect: if divorce is really necessary, separate as soon as possible and keep the separation evidence (rental contract, water and electricity documents, community certificates, records of exchanges between the two places);② Add new evidence before the second prosecution: collect new evidence of the other party's fault (continued infidelity, domestic violence alarm records, gambling and drug abuse records), chat records without improvement in communication between both parties, and continuous evidence of separation; ③ Resolve disputes over child support in advance: try to negotiate or prepare evidence of favorable support conditions (income, living environment, education plan) to avoid dragging down the divorce due to the deadlock in support; ④ Clearly claim the legal basis: if the divorce is not allowed to be separated for one year, the complaint and the court hearing clearly cite the last paragraph of Article 1079 of the Civil Code; ⑤ If the second decision is not made: continue to separate and keep the evidence after receiving the judgment, after one year of separation, the court shall sue again, at which time the court shall judge the departure; ⑥ Keep the litigation documents and time node records throughout the process, and formulate more detailed litigation strategies when necessary.

7. Mediation, Withdrawal and Procedural Details

The trend of divorce proceedings is more than "judgment/non-judgment". The arrangement of mediation and withdrawal directly affects the pace of re-litigation, and the details are worth clarifying one by one. First, the effect of mediation and reconciliation: after the court mediates and reconciles (issuing a mediation agreement or reaching a reconciliation agreement between the two parties), it is the same as the judgment that divorce is not allowed. If there is no new situation or new reason, the plaintiff shall not sue again within six months. However, if the other party commits new faults such as domestic violence and derailment again after reconciliation, it belongs to "new circumstances and new reasons" and can be prosecuted again without the six months. Second, the difference between withdrawal and withdrawal: the plaintiff voluntarily withdrew the lawsuit or was treated as withdrawal (refused to appear in court without justifiable reasons after summons, etc.), which is also subject to the restriction of "no further prosecution within six months without new circumstances and new reasons"; If a new lawsuit is filed after withdrawal, the provision of halving the divorce litigation fee shall only apply to the first withdrawal of the lawsuit, and the cost shall be calculated when arranging the route. Third, the conversion between litigation divorce and divorce by agreement: if both parties reach an agreement in the litigation, they can withdraw the lawsuit and go to the civil affairs bureau for divorce by agreement, or request the court to issue a mediation document for divorce-the mediation document has the same effect as the judgment and does not need to run to the civil affairs bureau any more. if property and maintenance arrangements are involved, the latter is more recommended in practice. Fourth, parallel application for personal safety protection order: if there is domestic violence, the personal safety protection order (Anti-Domestic Violence Law) can be applied simultaneously in divorce proceedings. The protection order does not rely on the result of the divorce judgment and plays an independent role. Domestic violence alarm records, warning letters and injury identification are not only the basis for protection orders, but also the evidence for determining emotional breakdown and damage compensation. Fifth, the application of the announcement service: if the defendant's whereabouts are unknown, the court announces the service of litigation documents, the expiration of the announcement is regarded as service, the default judgment-the execution of the default judgment involving the division of property is difficult, and it is not appropriate to drag into the announcement procedure if it can be resolved through negotiation.

8. Frequently Asked Questions

How often does the second prosecution usually take place?

If there are no new circumstances and new reasons after the judgment is not allowed to divorce, the lawsuit will be filed after six months from the effective date of the judgment; if there are new circumstances and new reasons (such as the other party's domestic violence, continuous derailment, etc.), there is no six-month limit. Before prosecuting, check whether the deadline has expired to avoid making a trip for nothing.

If the defendant has not agreed to divorce, will he never be able to leave?

No. Divorce is not based on the consent of the defendant. As long as the relationship has broken down and the mediation is invalid, the divorce shall be sentenced. Cases where the defendant does not agree test the evidence even more-domestic violence, cohabitation, bad habits, separation for two years and other legal circumstances can be sentenced to divorce if the evidence is sufficient.

How to prove "separation for one year?

Rental contract and rental payment records, payment documents for water, electricity and gas, change of residence permit, round-trip tickets between two places, certificates of communities or units, testimonies of relatives, friends and neighbors, contents of "separated" and "don't come to me" in communication records after separation, etc.; separation must be due to emotional discord, and must be calculated after the judgment is not allowed to divorce.

After a judgment denying divorce, the couple reconciled but later fell out again. How is the period of separation calculated?

The separation must be continuous and due to emotional discord. If you have lived together well during the period, the separation will be interrupted and you need to start over. In order to prove that the divorce is not allowed to be separated for one year, continuous and uninterrupted records of residence and communication (rental contracts, water and electricity documents, and records of exchanges between the two places) should be kept to avoid the lack of time caused by the separation and combination, which prevents the application of the last paragraph of Article 10

79of the Civil Code.

Will the court accept the divorce lawsuit filed by the man during the woman's pregnancy?

Article 1082 of the Civil Code restricts the man to sue for divorce during the woman's pregnancy, within one year after childbirth or within six months after termination of pregnancy, except that the woman files for divorce or the people's court deems it necessary to accept the man's divorce request-if the man has evidence to prove that the woman has committed domestic violence, abuse and other necessary circumstances, the court can accept it according to law.

9. Practical Insights from a Lawyer

The second prosecution is not equal to a certain judgment of divorce. The standard of the court is always whether the feelings have been broken, and the number of prosecutions itself is not the basis. In practice, the second time there was still no divorce, many reasons were intertwined: the first time there was old reason and old evidence, and there was no new rupture fact; The two sides were arguing over the issue of raising children, and the court hoped to urge the two sides to reach an agreement on the child first. The other party made it clear in court that he was willing to make up and gave a specific promise. The interval between the two prosecutions was short and the actual separation was insufficient. And there. First judge which category you fall into, and then decide whether to supplement evidence, negotiate conditions, or simply switch to separation arrangements.

If you have been stuck on this hurdle, the most useful action is not to repeatedly ask "why you have not been sentenced to leave", but to immediately shift the focus to "forming a new, proof-of-proof separation facts": truly separate living, fixed starting and ending time, keep the records of their daily lives, and continue to collect evidence that can reflect the lack of emotional improvement. The law gives a bottom channel-after the divorce is not allowed, the two parties have been separated for another year, and if one party sues again, the divorce shall be granted. It is much more effective to use this year solidly than to empty in the same cycle.

The six-month limit should also be remembered in the procedure: after the first judgment forbids divorce, those who sue again without new circumstances and new reasons usually have to wait for six months;Withdrawal or treatment as withdrawal is also subject to this restriction, so don't rush to withdraw or re-sue in a hurry. At the negotiation level, you can use the other party's "fear of being dragged into litigation repeatedly" mentality, in exchange for substantive conditions by no longer entanglement, or conversely use a stable separation arrangement to make the other party understand that it is not in his interest to drag on. Find out whether the other party is reluctant to give up, talk about conditions or pure procrastination, symptomatic moves, often faster than hard judgment to leave.

The second divorce is not an "automatic divorce", but a "re-examination of evidence": the court examines whether the relationship has indeed broken down. The advice to the parties is: turn the time between the two prosecutions into a "evidence accumulation period"-separation to leave traces, fault to collect evidence, custody to negotiate first. The lawsuit is not a bet on the number of times, but a bet that each time is closer to the legal standard of "the relationship is indeed broken" than the last.