Insights

Can Ningbo's sexual marriage sue for divorce?

Ningbo Author：LuXu WANG

One woman couldn't hide her pain in counseling. She and her husband were married for five years, but they never had a normal couple life after marriage. She repeatedly failed to communicate, the other party always evaded the problem. She wants a divorce, but is worried that the court will not support her claim as "it's not a big deal. Does a marriage without sex constitute a legal ground for divorce? What will the court decide?

1. legal basis

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. In handling divorce cases, the people's court 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.

"Several Specific Opinions of the Supreme People's Court on How People's Courts Determine that the Relationship between Husband and Wife Has Been Broken in Divorce Cases" (Fa [Min] Fa [1989] No. 38): If one party suffers from a disease that is legally prohibited from marriage, or one party has physical defects and other reasons that cannot have sex and are difficult to cure, it shall be deemed that the relationship between husband and wife has indeed broken.

2. core points

1. Sexual life is an important part of a couple's life, but it is not a legal condition for divorce.

The sex life of husband and wife is an important part of the marriage relationship, and it is also an important way to promote the emotional integration of husband and wife and meet the basic physiological needs of both parties. Long-term sexual marriages do have a serious impact on the relationship between husband and wife. However, in the cases of legal divorce listed in Article 1079 of the Civil Code, "asexual marriage" or "disharmony in sexual life" are not separately listed as circumstances in which divorce should be granted. Therefore, the parties cannot directly request the court to decide the divorce based on the fact of "asexual marriage.

2. Adoption of "other circumstances leading to the breakdown of the couple's relationship"

although a sexual marriage itself is not a legal divorce, the parties can claim that it belongs to "other circumstances that lead to the breakdown of the relationship between husband and wife". In judicial practice, the court will comprehensively consider the duration of the sexual marriage, whether the two parties have serious conflicts, whether they seek medical treatment, whether there is a possibility of harmony and other factors to judge whether the relationship between husband and wife has indeed broken down.

3. If there are physical defects and difficult to cure, can be regarded as emotional breakdown

according to the relevant judicial interpretation of the Supreme people's Court, if one party has physical defects or other reasons that can not have sex, and it is difficult to cure, it can be regarded as that the relationship between husband and wife has indeed broken down. At this time, the parties need to provide medical diagnosis certificates, treatment records and other evidence to prove that the other party does have physiological defects and cannot recover after treatment.

3. boundary conditions

  • if one party is temporarily unable to have sex due to illness, but is undergoing active treatment and is likely to recover, the court may consider that the relationship has not yet broken down and rule against divorce
  • if the two parties are in a sexless marriage, but the relationship is still good and mutually supportive, the court may consider that the relationship has not broken down.
  • If one of the parties sues on the grounds of a sexual marriage, but cannot provide any evidence (e. g. medical diagnosis, communication records, etc.), the court may find it difficult to find a relationship broken down.
  • For one party's intentional refusal to have sex (non-physiological reasons), it is necessary to comprehensively judge whether there is cold violence, mental abuse and other situations.

4. operational steps

for the party who wants to sue for divorce:

  1. collect relevant evidence of asexual marriage, such as medical records, diagnosis certificates, chat records (communication sexual problems), witness testimony, etc.
  2. If the other party has physical defects, the diagnosis certificate and treatment record issued by the hospital shall be provided to prove that the defect is difficult to cure.
  3. If the sexless marriage leads to long-term separation or frequent quarrels, the evidence of separation and quarrel records should be fixed.
  4. In the complaint, it claimed that the asexual marriage led to the breakdown of the relationship and requested the court to decide on the basis of "other circumstances that led to the breakdown of the relationship between the husband and wife".
  5. Be prepared that the first prosecution may not be sentenced to leave, if rejected, should be separated for one year after the prosecution again.

Ningbo court emphasizes the original carrier and continuity when reviewing such evidence: according to Yinzhou court's white paper on the trial of marriage and family cases (2019-2021), wechat and other electronic evidence have many defects in proof and are difficult to be accepted. the communication record with the other party should keep the complete original carrier and mark the time. The medical diagnosis suggestion is issued by Ningbo local 3A hospital, and the continuous treatment record is kept.

For those who do not agree to divorce:

  1. if physical problems exist, they should be actively treated and treatment records should be kept to prove that the problem can be improved.
  2. Proof of proof that the relationship between the two parties is still good, such as photos of living together, family activities records, testimony of relatives and friends, etc.
  3. If the other party advocates emotional breakdown, the causal relationship between asexual marriage and emotional breakdown should be refuted.

5. common mistakes

myth 1: "The court of aschedness will definitely give a divorce"

error. A sexless marriage is not a legal divorce, and the court needs to make a comprehensive judgment on whether the relationship is broken. If there is no other evidence to support, the court may not support the claim of divorce on the basis of a sexual marriage alone.

Myth 2: "As long as there is a physiological problem, you can divorce"

error. Physiological defects must have a medical diagnosis certificate, and must be proved "difficult to cure". If the other party is being treated or has the possibility of recovery, the court may not find the relationship broken.

Misunderstanding 3: "A sex-free marriage can only be tolerated and cannot be used as a reason for divorce"

error. The sex-free marriage can be used as a reason for divorce proceedings, but it needs to be claimed through "other circumstances that lead to the breakdown of the relationship between husband and wife" and provide corresponding evidence. Long-term sexual marriages may indeed cause serious harm to feelings, and the court will consider them in its comprehensive judgment.

Practical Experience of 6. Lawyers

whether a sexual marriage can be used as a reason for divorce, the answer is that it can be sued, but the court's decision not to divorce ultimately depends on whether the relationship between the couple has indeed broken down. The long-term absence of husband and wife life itself is not listed in the legal divorce situation listed in the law, so we can't ask for a divorce based on this article alone, but we should claim it through other situations that lead to the breakdown of husband and wife's feelings, and put it in the whole marriage state: how long it lasted, what kind of contradiction between the two sides, whether there was medical treatment, and whether there was any possibility of peace. Only by making these clear can the proposition come to an end.

Be realistic on the evidence. Such facts are very private and have little direct evidence, so they rely more on materials that can be corroborated indirectly: communication records, medical and treatment information, certificates of separation, contradictory correspondence information between the two parties, and relevant materials that can explain the long-term existence of marriage in name only. If the situation involves one party having physical defects or other reasons that cannot have sex and is difficult to cure, then it can be claimed that this is a situation where the relationship between the couple is broken, and the value of medical information will increase significantly. It should be noted that this kind of evidence is more sensitive and must be obtained in a legal manner, not by means of possible infringement such as secretly recording and secretly photographing.

The pace of negotiations and litigation is also worth thinking about in advance. The other party may think that this is not a matter and refuse to divorce, so it is not surprising that the first prosecution is not sentenced to divorce. You must be psychologically prepared and fix the separation status to pave the way for another prosecution. If the other party is willing to talk, mention the divorce together with the conditions you really care about, such as property and living arrangements. Finally, I would like to remind you not to talk too much and push the other party to the end. It is a more stable choice to talk as long as you can and follow the procedure if you can talk.