Criteria and Proof of Affection Break of Couples in Ningbo

If one party insists on divorce while the other disagrees, on what basis can the court grant the divorce? There is only one standard: the marital relationship has indeed broken down, and mediation has failed. This article clearly explains the statutory grounds for marital breakdown, the key points of proof for each ground, and common pitfalls. The conclusion first says: Article 1079 of the Civil Code is the main switch for divorce. The cases listed in it, such as bigamy and cohabitation, domestic violence and abuse, gambling and drug abuse, separation for two years, declaration of disappearance, etc., correspond to different evidence methods respectively. There is another neglected channel-after the divorce is not allowed, the two parties shall be separated for another year, and the divorce shall be granted if they sue again. This only proves that "separated for another year, there is no need to prove a reason for the separation.

1. The statutory standard for a court to grant a divorce

Article 1079 of the Civil Code stipulates that if one of the spouses requests divorce, the relevant organization may mediate or directly file a divorce lawsuit with the people's court; the people's court shall mediate when hearing a divorce case; if the relationship has indeed broken down and the 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. If one party has been declared missing, and the other party files for divorce, the divorce shall be granted. 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.

Upon closer examination, a divorce judgment is based on a dual-requirement structure: “irretrievable breakdown of the marital relationship” coupled with “mediation having failed.” In judicial practice, the determination of whether a marital relationship has indeed broken down is typically based on a comprehensive analysis of factors such as the foundation of the marriage, the post-marital relationship, the reasons for divorce, the current state of the marital relationship, and the likelihood of reconciliation. Mediation is a mandatory procedure; if mediation fails and one party still insists on divorce, the conditions for divorce are deemed to be substantially met. If there are no legal circumstances and only "disagreements in character and weak feelings" are used to sue, the first prosecution may not be sentenced to divorce, but if the divorce is not allowed to be separated for one year and then sued again, divorce shall be granted-this is the exit of the fifth paragraph of Article 10

79for "long delay.

2. Key points for presenting evidence in various scenarios

(I) Bigamy or cohabitation with another person. Bigamy means that a person with a spouse has registered a marriage with another person, or has not registered but lives together in the name of husband and wife; cohabitation with another person means that a person with a spouse and the opposite sex outside marriage do not live together continuously and stably in the name of husband and wife. Direction of proof: for bigamy, submit marriage registration records, birth certificates of children born together, and evidence of external activities in the name of husband and wife (invitation cards, neighborhood testimony, public information on social platforms); For cohabitation, evidence of long-term cohabitation shall be submitted-rental or house purchase records, community monitoring, testimony of property and neighbors, joint travel records, chat records, etc. The evidence does not need to meet the standard of proof required in criminal cases; it is sufficient if it constitutes a preponderance of the evidence.

(II) Domestic violence or abuse, abandonment. Domestic violence usually has the characteristics of occasional and intermittent, while abuse has the characteristics of continuous and frequent and causes more serious consequences; abandonment refers to failure to fulfill the obligations of supporting, raising and supporting family members without justifiable reasons and lasting for a certain period of time. Evidence to be presented: police reports and warning letters (warning letters under the Anti-Domestic Violence Law constitute important documentary evidence), photographs of injuries and hospital medical records, injury assessment reports, records of assistance requests submitted to the Women’s Federation and community organizations, and witness testimonies. Victims of domestic violence may also apply for a personal protection order under the Anti-Domestic Violence Law; the issuance of such an order constitutes strong evidence of domestic violence in divorce proceedings.

(III) Repeated failure to correct bad habits such as gambling and drug abuse. Evidence to be presented: Administrative penalty decision (for gambling or drug use), compulsory detoxification order, educational records from the community or workplace, and relevant photos and videos. The key issue is “repeated failure to mend one’s ways”; a single instance of misconduct that has already been corrected is unlikely to constitute the offense.

(IV) Having been separated due to incompatibility for two full years.Separation refers to a situation in which spouses do not live together and neither party fulfills the rights and obligations of marriage, and the reason for the separation must be a breakdown in marital relations rather than an objective separation caused by factors such as work or study. Direction of proof: evidence of separation (time when one party moved out), rental contract and rent payment records, residence registration or residence permit, water, electricity and gas payment vouchers, communication records during separation (proving that there is no life contact between husband and wife), and witness testimony. Note that proving a “separate-but-not-cohabiting” form of separation is often difficult; courts place greater emphasis on the actual living arrangements and daily life circumstances.

(V) Declaration of missing person. According to Article 40 of the Civil Code, if a natural person has been missing for two years, any interested party may apply for a declaration of disappearance. If one spouse is missing and, after a public notice has been issued, remains unaccounted for, the other party may file for divorce. The court will generally grant the divorce; however, such proceedings typically address only the issue of divorce, with property division and child custody to be resolved in separate cases.

(VI) After a judgment denying divorce, the couple lives separately for another full year.This is a newly added independent avenue under the Civil Code; proof requires only two elements: the final and effective judgment from the first divorce lawsuit that dismissed the claim, and evidence demonstrating that the parties have lived separately for at least one year following the judgment. Special attention: the application of this paragraph does not need to prove that the reason for separation is emotional discord, but only needs to prove that after the judgment, it is objectively "separated for another year", and the organization of evidence is simpler than that of ordinary separation for two years.

3. Litigation procedures, time limits, and resubmission strategies

The process and time limit of divorce litigation should be known in mind: after the plaintiff files a lawsuit with the court with jurisdiction, the court will mediate first (mediation is the legal pre-stage of divorce cases), and if mediation fails, the court will enter the hearing; the trial limit of summary procedure is three months, and the ordinary procedure is six months, which can be extended according to law. If there are no legal circumstances in the first prosecution and the other party firmly disagrees with the divorce, most decisions will not allow the divorce. At this time, do not take litigation as the end point-Article 1079, paragraph 5, of the Civil Code provides a channel for re-litigation: after the divorce is not allowed, the two parties have been separated for another year, and if one party files divorce proceedings again, divorce shall be granted. The re-litigation strategy has three main points: first, from the effective date of the first judgment to calculate "another year of separation", the removal time, residence certificate fixed; third, evidence of emotional breakdown and hopeless reconciliation (communication records, separation facts) should still be prepared before the second prosecution, because the judge's review of "divorce should be granted" still needs basic facts. In addition, within six months after the decision is not allowed to divorce, if there is no new situation or new reason, the plaintiff shall not sue again (the provisions of the Civil procedure Law on the restriction of re-prosecution in divorce cases), and the time for re-litigation shall be calculated to avoid this window.

4. List of Material Evidence

1. Marriage certificate, household registration book, identity card, and other identity-related documents.
2. Core evidence for statutory grounds: proof of cohabitation and the nature of the relationship in cases of bigamy, police reports and medical records in cases of domestic violence, administrative penalty documents in cases of gambling or drug use, and rental agreements and payment receipts as evidence of separation.
3. Auxiliary evidence of emotional status: chat records, call records, testimony of relatives and friends, and psychological consultation records.
4. Mediation and Litigation Records: Community and workplace mediation records, as well as the judgment from the previous divorce lawsuit.
5. Property and Children‑Related Documents (to be handled together in a divorce case): List of real estate, bank deposits, vehicles, and insurance policies; records of the children’s schooling and caregiving arrangements.

5. The connection between divorce damages compensation and fault-based relief

The determination of a breakdown in the marital relationship is often accompanied by a claim for damages. Article 1,091 of the Civil Code provides that where divorce is caused by bigamy, cohabitation with another person, domestic violence, abuse or abandonment of family members, or other serious misconduct, the party not at fault has the right to claim damages. There are three main points: first, compensation for damages must be based on divorce, and the court will not support it if it is filed separately during the marriage; Second, the request should be filed together in the divorce proceedings. If the innocent party is the defendant and does not agree to the divorce and does not file a claim for damages, a separate lawsuit can be filed within one year after the divorce. Third, damages and property division are two different things-fault affects the right to claim for compensation, the "taking care of the no-fault party" in the division of property is also grasped according to Article 1087, and the two can be claimed at the same time and calculated separately. In terms of proof, damages also rely on evidence of fault (materials such as cohabitation, domestic violence, gambling, etc.), which highly overlaps with evidence of emotional breakdown, and the evidence can support both requests at the same time. The catch‑all provision concerning “other significant misconduct” in practice encompasses such circumstances as concealing a serious illness at the time of marriage and bearing children outside of marriage; each case must be assessed by considering both the degree of fault and the resulting harm.

6. Special rules for divorce involving special subjects

Separate reminders are required for the divorce rules applicable to the three categories of parties. First, the marriage of active servicemen: Article 1081 of the Civil Code stipulates that if the spouse of an active serviceman requests a divorce, he shall obtain the consent of the serviceman, except if one of the servicemen has a major fault-if the serviceman has a major fault such as bigamy, domestic violence, gambling and drug abuse, he can sue without his consent; if both parties are servicemen or the serviceman voluntarily requests divorce, it shall be dealt with according to the ordinary rules. The second is the party with no capacity for civil conduct or limited capacity for civil conduct: the divorce proceedings are represented by the guardian, but if there is a conflict of interest between the guardian and the opposite party of the divorce, the guardian should be changed according to law before the lawsuit; if one of the spouses is a person with no capacity for civil conduct, the other party suing for divorce must also properly arrange its guardianship and living security, and the court may decide to give financial assistance to the party with difficulties. Third, high marriages involving foreigners or Hong Kong, Macao and Taiwan factors: jurisdiction and application of the law follow other foreign-related rules (see this series of special articles on foreign-related divorce), and the jurisdictional connection point and document authentication requirements are confirmed before prosecution. The common point of the special subject is "procedure first": first solve the subject qualification, agency, jurisdiction, and then enter the emotional breakdown of the entity review, procedural defects may lead to dismissal of the prosecution or trial delay.

7. Frequently Asked Questions

Misunderstanding 1: As long as one party insists on divorce, the court will judge the divorce sooner or later

Error. Divorce is granted only when the marital relationship has irretrievably broken down. In the absence of any statutory grounds and with the other party’s disagreement, a first divorce suit may be dismissed; however, after one year of separation following the dismissal, a subsequent suit should be granted.

Misconception 2: Separation for two years automatically results in divorce.

Error. There is no such thing as “automatic divorce” under the law. Two years of separation is merely one of the statutory grounds for a court to grant a divorce; the divorce must still be finalized either by mutual agreement or through litigation.

Misconception 3: Simply capturing the other party accompanied by a person of the opposite sex constitutes “cohabitation with another person.”

Error. Occasional interactions and hotel check-in records do not equate to continuous and stable cohabitation; cohabitation must meet certain criteria of continuity and stability, and the evidentiary requirements are relatively high.

Misconception 4: During separation, each party lives separately, and evidence will be automatically preserved.

Error. The fact of separation must be proactively documented: rental agreements, proof of residence registration, payment receipts, and chat records can all serve as key evidence for establishing the starting point of the separation; it is difficult to provide such documentation retroactively.

Misconception 5: If the other party has a history of domestic violence, you can obtain a larger share of the marital property in a divorce.

Partially correct. Domestic violence affects only the right to claim damages (Article 1091 of the Civil Code: In cases of divorce caused by domestic violence, the non‑faulting party has the right to seek compensation for damages); it does not necessarily result in a smaller share of the marital property. The factors considered in the division of property primarily protect the interests of the children, the female party, and the non‑faulting party; these two claims should be asserted separately.

If a military personnel’s spouse files for divorce, will the court definitely refuse to accept the case?

It is not that the case is not accepted, but the consent of the soldier must be obtained first; if the soldier has a serious fault (bigamy, domestic violence, gambling and drug abuse, etc.), the divorce can be decided without consent. At the time of filing the lawsuit, evidence regarding “gross negligence” shall be submitted, and the court will review it in accordance with the law.

If the first divorce lawsuit is dismissed, how long must one wait before filing again?

Within six months after the judgment forbids divorce, those who have no new circumstances or new reasons shall not sue again; if the two parties have been separated for one year after the judgment takes effect, they may sue again according to the fifth paragraph of Article 1079 of the Civil Code, and the court shall grant the divorce.

To what extent does domestic violence constitute a legally recognized ground for “irretrievable breakdown of the marriage”?

The Civil Code lists the implementation of domestic violence as the legal situation that divorce should be granted, and does not presuppose the consequences of minor injuries or more; the alarm records, warning letters, medical records, injury photos and protection orders are the core evidence, and the first prosecution with evidence can be supported.

During the period of separation, we reconciled briefly. Does that time still count as part of the separation?

Whether the separation time is calculated continuously or not is subject to whether the common life is resumed or not; for those who are separated again after a short reconciliation, the separation period is generally recalculated from the last separation, and those who claim to be separated for two years should provide continuous evidence (residence record, payment voucher time line).

8. Practical Insights from a Lawyer

If one party insists on divorce while the other disagrees, the court’s decision to grant the divorce hinges on a single factor: whether the marital relationship has indeed broken down and whether mediation has failed. This is a “dual-element” threshold. Around this standard, the law lists several types of situations that are usually considered to be broken-bigamy or continuous and stable cohabitation with others, domestic violence or abuse and abandonment, gambling and drug abuse and other vices that do not change after repeated education, separation due to emotional discord for two years, and so on. Each type corresponds to a different direction of proof. There is also a channel that is often ignored but is particularly useful for "long-term delay": after the first prosecution is sentenced not to divorce, the two parties have been separated for another year, and if one party sues again, divorce should be granted. This article only needs to prove the fact that "they have been separated for another year", and there is no need to dwell on the reasons for the original separation. It is the breaking point of many procrastination cases.

When it comes to the burden of proof, a tailored approach is required based on the specific circumstances.For those who advocate bigamy or cohabitation, prepare materials around "external in the name of husband and wife" or "continuous and stable co-residence", such as long-term co-residence rental and purchase records, statements of property and neighbors, common travel and life traces; For those who advocate domestic violence or abuse and abandonment, the alarm records, warning letters, medical records and injury materials, women's federations or community help-seeking records are crucial, the record of applying for a personal safety protection order is also strong evidence. If it is advocated that the bad habit of gambling and drug abuse does not change after repeated education, the administrative penalty decision, compulsory isolation of drug rehabilitation materials, and the education record of the community or unit can better explain "repeated education does not change" than a single situation. If separation is advocated, the separation agreement, rental contract, utility bill, community certificate, etc. shall be used to prove the starting and ending time of separation and the fact of separation due to emotional discord. Evidence does not have to meet the standards of criminal cases, can form a superior proof.

When a case proceeds to litigation, several key details can equally determine the outcome. The most common is "separation without interruption": going home on weekends, spending holidays together, and "trying to make up" for a few days will interrupt the continuity of separation and invalidate the originally favorable time line. To decide to take the road of separation, we must fix the time point and foothold and leave marks. Secondly, after the first prosecution is sentenced not to divorce, do not repeatedly entangle "why not leave", but should immediately enter and maintain the state of separation, paving the way for another prosecution after a full year. Again, when filing a lawsuit, simply claiming “incompatibility of personalities” or “waning affection” is rarely sufficient to persuade the judge; you must substantiate your claims with specific facts and evidence. Finally, the proof of emotional breakdown and compensation for damages and upbringing arrangements are two lines. Don't expect to automatically solve all the problems by proving that "we can't live". The fault relief and upbringing facts claimed separately should be prepared separately.

There is a clear legal framework for the determination of the breakup of the relationship between husband and wife: five legal situations plus "other situations that lead to breakup" as the bottom line, and another channel for re-litigation that is not allowed to live apart for one year after divorce. The method of evidence is "evidence corresponding to the situation": domestic violence depends on warning letters and medical records, separation depends on residence certificates and payment records, and gambling and drug abuse depends on punishment documents. It is suggested that before prosecution, check which item you conform to according to Article 1079 and collect evidence around this item. If there is no legal situation, be prepared for the possibility that the first prosecution may not be sentenced, and at the same time accumulate evidence for "re-prosecution + separation for one year.