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Ningbo Both Sides Agree Will the Divorce Court Sentence

Ningbo Author：LuXu WANG

Recently, a woman came to consult. She and her husband had already negotiated the terms of divorce. Both parties agreed to end the marriage. They thought that the court would decide the divorce naturally. However, to her surprise, the judge did not directly judge the divorce in the trial, but repeatedly asked both parties about the arrangements for child support. This made her very confused: both parties agreed to divorce, is there any reason for the court not to judge?

1. legal basis

the third paragraph of Article 1079 of the the People's Republic of China Civil Code states:

"Divorce shall be granted if mediation fails under any of the following circumstances:

(I) bigamy or cohabitation with another person;

(II) domestic violence or abuse or abandonment of family members;

(III) gambling, drug abuse and other bad habits do not change;

(IV) have been separated for two years due to emotional discord;

(V) other situations that lead to the breakdown of a couple's relationship. "

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.

Article 62 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code also clearly states: "If the people's court hears divorce cases and conforms to the situation stipulated in the third paragraph of Article 1079 of the Civil Code that 'divorce should be approved', it shall not be forbidden to divorce because the parties are at fault. "

2. core points

1. The legal criterion for a divorce is "true breakdown of feelings", not "mutual consent"

the Civil Code does not include "divorce by mutual consent" as a statutory circumstance in which divorce should be granted. In other words, even if both the plaintiff and the defendant express their willingness to divorce, the judge still needs to examine whether the relationship between husband and wife has indeed broken down. If the judge believes that there is still a possibility of mediation and reconciliation between the two parties, he may still rule that divorce is not allowed in principle.

2. The lack of agreement on the issue of child support is an important reason why the court does not judge the divorce.

In judicial practice, the real will limit the judge's decision to divorce is often the issue of child support. If the two parties have a dispute over the ownership of the custody of minor children, or even shirk each other and are unwilling to raise the children, the court is likely to rule that divorce is not allowed based on the principle of maximizing the interests of minors. The Supreme People's Court has made it clear in relevant precedents that if both parents refuse to raise minor children, the court may rule that divorce is not allowed in order to urge both parties to fulfill their obligation of raising.

3. "Mediation is invalid" is a precondition for the decision to grant divorce.

Article 1079 of the Civil Code clearly stipulates that the people's court shall conduct mediation in the trial of divorce cases; divorce shall be granted only on the premise that "mediation is invalid" and in accordance with the statutory divorce circumstances. Therefore, even if the parties agree to divorce, the judge may still make a decision against divorce if he or she considers that there is still a possibility of reconciliation during the mediation process.

3. boundary conditions

  • if both parties agree to divorce, but there are significant differences on the division of property or child support, the court may suspend the divorce and require both parties to reach an agreement on the above issues or resolve them separately.
  • If one party hides, transfers, sells, destroys the joint property of the husband and wife, or falsifies debts in an attempt to usurp the property of the other party, the other party may request the court in the divorce proceedings to divide the wrong party less or not to divide the property.
  • For cases where both parties agree to divorce and have reached a consensus on child support and property division, the court will usually support the divorce request and review the legality and rationality of the content of the divorce agreement in accordance with the law.

4. operational steps

1. For the plaintiff:

  1. try to reach a preliminary agreement with the defendant on child support and property division before prosecution, so as to reduce the focus of disputes in the lawsuit.
  2. If both parties have reached an agreement, they can submit a draft divorce agreement for the reference of the court at the time of prosecution.
  3. If the defendant agrees to divorce but both parties have disputes over the upbringing of the children, evidence of upbringing conditions in favor of the defendant may be prepared in advance (such as proof of income, living conditions, children's education plan, etc.)
  4. if the court decides that the divorce is not allowed, it may be prosecuted again after one year of separation from the defendant, at which point the court shall grant the divorce.

2. For the accused:

  1. if you agree to divorce but have a claim for child support, you should clearly state the claim and reasons for the support during the defense period.
  2. If you do not agree to divorce, you can prove that the relationship between the two parties has not broken down, or you are willing to actively improve the relationship between husband and wife, and strive for a good opportunity for court mediation and reconciliation.

5. common mistakes

myth 1: "If both parties agree to divorce, the court must give a divorce"

error. The criterion for the court's decision to leave is that "feelings have indeed broken down" and "mediation is invalid", and the consent of both parties is only one of the factors considered by the judge, not a legal condition.

Myth 2: "It doesn't matter if the property is not clearly separated, divorce first"

error. If the division of property or child support is controversial, the court may not decide on a divorce, resulting in a longer litigation cycle. It is recommended that consensus be reached as far as possible before prosecution.

Myth 3: "If the other party agrees to divorce, I don't have to prepare anything"

error. Even if the other party agrees to divorce, it is still necessary to make full preparations for the property list, debt situation, child support plan, etc., so as to avoid damage to the interests due to self-admission or omission of claims in the trial.

Practical Experience of 6. Lawyers

many people think that "if both agree to leave, the court will definitely judge", but in practice it is not so simple. Both sides agree that the court still has to examine whether the relationship has indeed broken down, and more importantly-if there is no agreement on the support of the children, the court may rule against divorce. Therefore, before preparing to fight this lawsuit, don't focus on "agreeing to leave", but arrange the child's upbringing, visitation and alimony together. Otherwise, if there is only the agreement to divorce, the procedure will still be stuck and wait for a round of time.

In operation, we can talk about "separation, property and children" as a package, especially for children. The more specific the better: who is entitled to custody, how to set the alimony, how to arrange the visiting time, how to connect the transfer or residence, and what can be written clearly. Before the trial, these are organized into a mutually acceptable plan, and mediation is easy to advance. On the other hand, if you only want to judge the divorce first and discuss the children later, it is likely to backfire. It is also necessary to prejudge the other party to change his words temporarily in court, so it is agreed that it is better to have something in writing fixed.

If you really can't talk about children's problems, don't give up in a hurry. You can do more rounds of communication around the children's plan first, and use mediation if necessary. Even if there is no divorce this time, it does not mean that the marriage cannot be divorced. Keep the separation and continue to fix the evidence to prepare for another prosecution. The focus of the negotiation is to find out the real concerns of the other party in raising-whether they are reluctant to give up their children, or worry about alimony or visiting being made difficult, and to design arrangements for the concerns, which is often more likely to push the case forward than repeatedly emphasizing that "everything is good.