Insights

What is the jurisdiction court for Ningbo to sue for divorce?

Ningbo Author：LuXu WANG

When many parties come to consult about divorce, the first question is "which court should I go to?" Some people think that they must go to the other party's hometown, while others think that they can file a case in any court where they live, but the materials are returned, which is a waste of time. The jurisdiction of the court of divorce proceedings has clearly stipulated that the wrong court will directly affect the efficiency of filing a case and the follow-up procedure.

1. legal basis

article 22 of the "the People's Republic of China Civil Procedure Law": A civil lawsuit filed against a citizen shall be under the jurisdiction of the people's court of the defendant's domicile; if the defendant's domicile is inconsistent with his habitual residence, the people's court of the habitual residence shall have jurisdiction.

Article 23 of the the People's Republic of China Civil Procedure Law: The following civil actions shall be under the jurisdiction of the people's court of the plaintiff's domicile; if the plaintiff's domicile is inconsistent with his habitual residence, the people's court of the plaintiff's habitual residence shall have jurisdiction:

(I) proceedings relating to identity against persons who do not reside in the the People's Republic of China sphere;

(II) proceedings concerning the identity of a person whose whereabouts are unknown or who has been declared missing;

(III) proceedings against persons subject to compulsory educational measures;

(IV) proceedings against incarcerated persons.

Article 12 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law: If one of the spouses leaves his domicile for more than one year, and the other party sues for divorce, the people's court of the plaintiff's domicile may have jurisdiction. If both husband and wife have been away from their domicile for more than one year, and one of the parties sues for divorce, the case shall be under the jurisdiction of the people's court of the defendant's habitual residence; if there is no habitual residence, the case shall be under the jurisdiction of the people's court of the defendant's place of residence at the time of the plaintiff's lawsuit.

2. core points

1. Basic principles: the plaintiff in the defendant

divorce proceedings are based on the principle of "the plaintiff is the defendant", that is, the plaintiff should sue in the court of the defendant's domicile. The domicile of a citizen generally refers to the place of domicile. If the defendant leaves the place of domicile and has lived in another place for more than one year, that place is his habitual residence and shall be under the jurisdiction of the court of his habitual residence.

2. Criteria for "habitual residence"

the habitual residence refers to the place where the citizen has lived continuously for more than one year from the place of residence to the time of prosecution, except for hospitalization. In practice, the court usually based on residence permits, housing lease contracts, property fee payment records, community certificates, social security payment records and other materials to determine.

3. Courts of jurisdiction in exceptional circumstances

the defendant has left his domicile for more than one year: if one of the spouses has left his domicile for more than one year and the other party sues for divorce, the court of the plaintiff's domicile may have jurisdiction; if both parties have left his domicile for more than one year, it shall be under the jurisdiction of the court of the defendant's domicile at the time of the plaintiff's lawsuit.

The whereabouts of the defendant is unknown or declared missing: under the jurisdiction of the court of the plaintiff's domicile, it is convenient for the plaintiff to participate in the litigation and serve relevant legal documents.

The accused is imprisoned or subject to compulsory educational measures: Jurisdiction of the court of the plaintiff's domicile.

The defendant does not reside in China: the court of the plaintiff's domicile shall have jurisdiction.

Both parties are soldiers: the defendant's domicile or the resident court of the unit above the regiment level where the defendant is located shall have jurisdiction; if a non-military person files a divorce lawsuit against a non-civilian military person, the court of the plaintiff's domicile shall have jurisdiction.

Both parties are abroad but not settled: under the jurisdiction of the court of the plaintiff or defendant's original domicile.

3. boundary conditions

  • if the defendant has more than one habitual residence in China, the place of actual continuous residence for one year at the time of prosecution shall prevail.
  • Both spouses live in the same city but not in the same district, and are generally under the jurisdiction of the district/county court where the defendant usually resides. For example, if both husband and wife live in Ningbo for a long time but belong to Haishu District and Yinzhou District, they should generally sue the basic court of the district where the defendant usually lives.
  • There may be differences in the criteria for court review at the time of filing a case, and some courts are more stringent in determining population information, suggesting that adequate proof of residence be prepared in advance.
  • If the case has been accepted by a court with jurisdiction and the other party raises an objection to jurisdiction, the court will review it in accordance with the law; if the objection is established, the case will be transferred to a court with jurisdiction.

4. operational steps

1. Determination of the defendant's domicile or habitual residence

  • inquire about the defendant's domicile
  • determine whether the defendant has lived in a place continuously for more than one year.
  • Collect residence certification materials (residence permit, lease contract, social security record, community certificate, etc.), and it is recommended to prepare them as much as possible to avoid the influence of unclear identification of frequent residence on filing a case.

2. Determine whether there are special circumstances

  • whether the defendant is unaccounted for, imprisoned, subject to compulsory educational measures
  • whether the defendant does not reside in China
  • whether both parties are military or are unsettled abroad

3. Choose the right jurisdiction court and prepare the case materials

  • in general, to the defendant's domicile or habitual residence of the basic people's court
  • under special circumstances, the plaintiff's domicile or habitual residence of the basic people's court
  • preparation of complaint, marriage certificate, identity card, child birth certificate, property clues and other materials

4. Responding to jurisdictional objections

  • if the other party raises an objection to jurisdiction, actively cooperate with the court review
  • if the court decides to transfer, transfer the case materials to the court to which they are transferred in a timely manner to avoid procedural delays.

5. common mistakes

myth 1: "I will sue in whichever court I want"

error. Divorce proceedings have clear rules of jurisdiction and the court cannot be chosen arbitrarily. Cases that do not meet the jurisdiction requirements will be ruled inadmissible or transferred to jurisdiction by the court.

Myth 2: "The other party is out of town, I must go to the other party's home court to sue"

error. If the other party has lived in the field continuously for more than one year, it shall sue the court of the other party's habitual residence, rather than the court of the place of residence. If the other party has left his domicile for more than one year, he may also consider suing in the court of the plaintiff's domicile.

Myth 3: "If the court files a case and passes it, there will be no problem with jurisdiction"

error. The passage of a case does not mean that the jurisdiction must be correct. If the other party raises an objection to jurisdiction and the objection is established, the case will still be transferred, resulting in an increase in time costs. Therefore, the competent court should be judged as accurately as possible before prosecution.

Practical Experience of 6. Lawyers

when the parties come to consult about divorce, the first question they often ask is "which court should I go to to sue?" many people choose the court according to their feelings, and the materials are returned, wasting time. The basic judgment in handling the case is: divorce proceedings are generally under the jurisdiction of the court of the defendant's domicile; if the defendant's domicile is inconsistent with his habitual residence, it shall be under the jurisdiction of the court of his habitual residence; and in some special circumstances, such as the defendant is not in the country, his whereabouts are unknown, compulsory educational measures or imprisonment, etc., may be under the jurisdiction of the court of the plaintiff's domicile or habitual residence. First remember this main line, and then judge it in combination with the actual living conditions of both parties, the direction will not be wrong.

Since "habitual residence" is often at the heart of jurisdictional disputes, it is important to pay attention to the retention of the certificate. In practice, continuous residence for one year is a common criterion, and residence permits, social security payment records, housing lease contracts, property or community certificates, etc., can be used to prove actual residence. When preparing to file a case, it is suggested that the materials should be checked according to the requirements of the target court, and the indictment, identity certificate, marriage certificate and jurisdiction basis should be prepared together, especially the evidence that can prove the place of habitual residence should not be omitted, so as to prevent the court from returning the correction on the grounds of unclear jurisdiction. Only when the materials are complete and the basis is clear can the case be filed smoothly.

There are several misconceptions that need to be avoided. One is that "the case is filed wherever the person is". In fact, not all courts will accept it. If the wrong choice is made, it will be transferred or even not filed; the other is knowing that the other party has been living in a certain place for a long time, but still going to the registered residence. Prosecute, causing the subsequent jurisdiction dispute to slow down the progress. If the other party raises an objection to jurisdiction, don't panic. Around the focus of "habitual residence", use the aforementioned evidence to explain the actual residence situation and strive for favorable jurisdiction arrangements. Jurisdiction seems to be only a procedural issue, but it is directly related to the convenience and rhythm of your lawsuit. If you take this step right at the beginning, you can save a lot of energy for the subsequent entity disputes.