If one party in Ningbo cannot have children or does not want to have children, will the court order a divorce?

Can the other party sue for divorce on the ground that one party is unable to have children or insists on not having children? Conclusion First of all, the inability to have children is not a legally specified cause of divorce, but what the court really examines is whether the relationship between the two parties has indeed broken down and whether the mediation is invalid. If it is only a simple birth difference and the marriage is still possible, the first prosecution usually does not give a divorce. If the long-term conflict over fertility leads to a complete breakdown of the relationship, the court may decide to divorce.

It is important to understand this: the law protects everyone's reproductive autonomy, not the reproductive expectations of any party. Therefore, the key to such cases is not who can prove that the other party cannot give birth or does not want to give birth, but who can prove that the marriage can no longer continue. The focus of proof should be on the objective manifestations of emotional breakdown.

1. Legal Basis: Fertility Autonomy and Emotional Breakdown Clause

article 23 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code stipulates that the people's court will not support the husband's request for damages on the grounds that his wife's unauthorized termination of pregnancy infringes on his reproductive rights; if the husband and wife have a dispute over whether to give birth, and one party's request for divorce is invalid after mediation, the people's court shall deal with it in accordance with the provisions of paragraph 5 of paragraph 3 of Article 10

79of the Civil Code.

The fifth item of the third paragraph of Article 1079 of the Civil Code refers to other situations that cause the relationship between husband and wife to break up. This is the channel for introducing birth disputes into divorce judges. Article 51 of the law on the protection of women's rights and interests clearly states that women have the right to have children in accordance with the relevant provisions of the state, and they also have the freedom not to have children. From the legislative level, it is confirmed that the autonomy of childbirth is not influenced by the will of their spouses.

Two are often overlooked. The fifth paragraph of Article 1079 of the Civil Code stipulates that after the people's court has ruled that divorce is not allowed, the two parties have been separated for another year, and if one party files a divorce lawsuit again, the divorce shall be granted. This is the first non-judgment. The case provides a definite path. Article 1053 of the Civil Code stipulates that if one party suffers from a major illness, he shall truthfully inform before the marriage registration, and if he fails to truthfully inform, the other party may request the cancellation of the marriage, which shall be made within one year from the date when he knows or should know the reason for the cancellation.

2. the different trends of the two situations

1. Infertility due to physiological reasons

if one party is objectively unable to have children due to physical reasons, and the other party sues for divorce, the court will generally not judge the divorce based on this fact alone, but will examine whether the relationship has broken down as a result. If the two parties still have a common life basis and only have differences on issues such as treatment plans or adoption, the court is more inclined to mediate and reconcile or give a cooling-off period.

It should be noted that the cause of infertility usually needs to be confirmed by medical examination, and it is difficult to be accepted only by subjective speculation or one party's statement. If it is advocated to conceal a major disease before marriage, the evidence should be organized around three key points: whether the disease is a major disease, whether it is known before marriage, and whether it is presented within one year.

2. One party insists on not having children

if one party insists on not having children while the other party strongly hopes to have children, and the two parties cannot reach an agreement for a long time and cause continuous conflicts, resulting in separation and complete breakdown of feelings, the court may determine that it is other circumstances that lead to the breakdown of feelings, and the mediation is invalid and the divorce is decided. In such cases, the court is concerned with the duration of the disagreement and whether there is no room for reconciliation, rather than simply judging who is more reasonable.

From the perspective of proof, proof of residence for long-term separation, communication records for many unsuccessful negotiations, testimony of relatives and friends, proof of neighborhood committee or property are all common materials to prove emotional breakdown. It is more difficult to obtain support for the first prosecution if there are only oral statements without any objective corroboration.

3. boundary conditions: these situations will be blocked back

the first is the limited timing of prosecutions. Article 1082 of the Civil Code stipulates that during pregnancy, within one year after childbirth, or within six months after termination of pregnancy, the man shall not file for divorce, except where the woman files for divorce or the people's court deems it necessary to accept the man's request for divorce. This restriction is highly relevant to the issue of fertility, and once it is stepped on, the court will not accept or dismiss the prosecution.

The second is the first prosecution with insufficient evidence. If it is only stated that the other party does not have children or does not want to have children, and there is no supporting evidence such as separation or invalid mediation, the court usually decides that divorce is not allowed. At this time, it is not appropriate to repeat the prosecution frequently. It is more prudent to prosecute again after one year of separation according to law.

The third is the one-year period for annulment of the marriage. If a request is made to revoke a marriage on the grounds of concealing a major illness before marriage, it must be made within one year from the date when the cause of the revocation is known or should be known, and only the path of divorce can be taken within the time limit, and the legal consequences of revocation and divorce in terms of property division and child support are not the same.

4. specific to Ningbo: the cooling-off period of agreement divorce and the path of litigation filing

if the two parties can reach an agreement on divorce, property and children, they can apply for divorce registration at the district (county, city) marriage registration office where one party's household registration or habitual residence is located. The process is to pass a cooling-off period of 30 days after the application is submitted. Within 30 days after the expiration of the cooling-off period, both parties will be present to collect the divorce certificate. Those who fail to apply jointly within the time limit will be deemed to have been withdrawn and need to be resubmitted. Marriage registries in all districts generally make appointments, and the materials usually include ID cards, household registration books, marriage certificates and divorce agreements.

If the negotiation fails, the lawsuit divorce can be submitted online through Zhejiang court network or mobile micro court, or it can be handled at the filing window of the people's court with jurisdiction. In practice in Ningbo area, family cases are generally first appointed pre-litigation mediation, mediation failed and then transferred to the trial procedure.

Ningbo family trial also has a family investigator and psychological counseling mechanism. Disputes caused by fertility problems are often mixed with family pressure and emotional opposition. The court can entrust family investigators to understand the actual situation and introduce psychological counseling according to the situation. Judging from the general practice reflected by the public judgment of the Ningbo court, it is more common for the first time to sue for divorce due to birth differences and there is no objective evidence such as separation, and it is more common for the decision not to allow divorce; for those who have been separated for one year according to law to sue again, the possibility of granting divorce is significantly increased.

5. common mistakes

one of the misconceptions is that the other party must be divorced if the court cannot bear children. The court examined whether the relationship was broken, and the issue of fertility was only one of the possible causes, not an independent cause of divorce. The second misunderstanding is that the wife can claim compensation for the unauthorized termination of pregnancy, which has been clearly not supported by the judicial interpretation.

The third mistake is to equate infertility with concealment of major diseases before marriage. Whether it belongs to major diseases needs medical and case judgment, and the right of revocation is limited by one year. The fourth misconception is that if you don't want children, the other party can't help it. If the relationship is broken due to differences, the court can still decide to divorce.

6. operational steps

the first step is to judge whether it belongs to physiological infertility or differences of will, and the two correspond to different directions of proof. The second step is to negotiate first, to make clear whether to accept medical examination, assisted reproduction or adoption, and to keep communication records. The third step is to reach an agreement on property division and debt handling if divorce is really necessary, and to go to the marriage registration offices in Ningbo to reach an agreement for divorce and reserve a cooling-off period; in the fourth step, if the agreement fails, the lawsuit shall be filed after sorting out the evidence of emotional breakdown such as separation certificate, communication record, witness testimony, etc.; the fifth step, if the divorce is not allowed for the first time, the lawsuit shall be filed again after one year of separation according to law; the sixth step is to advocate that those who conceal major diseases before marriage must submit a request for cancellation of marriage within one year from the date of knowing.

It is also reminded that disputes involving child support and property division should be clearly thought out before prosecution. The issue of fertility itself is emotional, and if property issues are mixed together, it is easy to delay the case for a long time.

Practical Experience of 7. Lawyers

the issue of childbirth itself is not a legal reason for divorce. Whether or not a divorce is decided depends on whether the relationship has indeed broken down and whether mediation is invalid. The law protects everyone's reproductive autonomy, not the reproductive expectations of either party. Therefore, the key to such cases is not who can prove that the other party cannot give birth or does not want to give birth, but who can prove that the marriage can no longer continue. The parties who want to divorce with fertility differences should focus on the objective manifestation of emotional breakdown from the beginning, rather than worrying about the fertility or willingness of the other party.

In terms of operation, two trends should be clearly defined first: if it is only a simple birth difference and marriage is still possible to maintain, it is usually difficult to judge the divorce for the first time. At this time, it is better to try mediation or prepare for the future by forcing the lawsuit. If the long-term conflict and contradiction of fertility problems become public enough to live together, it is necessary to fix the evidence of emotional breakdown, such as the record of long-term separation, repeated conflict and communication breakdown. There is no point in emotional confrontation over disputes such as termination of pregnancy and refusal to give birth. It is the right way to clarify the facts and the continuing state.

Strategically, don't take "the other party can't give birth" as a natural divorce machine code, and grasp the reality when negotiating: if the other party agrees to divorce but only plays games on conditions, focus on the conditions; If the other party is determined not to leave, it is necessary to evaluate whether to take the path of separation for a certain period of time or to use other broken facts to support it. At the same time, it should also be understood that conflicts around childbirth are often mixed with family pressure and emotional trauma, and there is dignity in communication, which is often more likely to get concessions from the other party than pressure. Changing the goal from "proving who is wrong" to "how to end it gracefully" will make the idea much clearer.