Ningbo's First Prosecution Not Sentenced to Leave, How to Operate Second Prosecution for Divorce

In the first divorce lawsuit, the court ruled against granting the divorce on the grounds that “the marital relationship has not yet broken down.” Many parties wish to file another lawsuit immediately, but are told they must wait six months. How to proceed with the second divorce lawsuit and what its chances of success are depend entirely on your understanding and application of three key factors: the six-month waiting period, the requirement of new circumstances or grounds, and the one-year separation rule. One sentence conclusion: After the first judgment is not allowed to divorce, if the plaintiff has no new circumstances or new reasons, it will take six months before he can sue again; In the second prosecution, the focus should be on preparing evidence of emotional breakdown and highlighting the fact that the relationship has not improved after the judgment. The probability of divorce is usually significantly increased. If the two parties are separated for another year after the judgment is not allowed to divorce, the court shall grant the divorce.

1. Why wait six months: A breakdown of legal provisions and applicable requirements

The direct basis of this restriction is the seventh item of Article 127 of the the People's Republic of China Civil Procedure Law: "Divorce cases that are not allowed to be divorced and reconciled through mediation, cases that are maintained through judgment and mediation, without new circumstances and new reasons, and if the plaintiff sues again within six months, the case will not be accepted. "To dismantle this article, four requirements must be met at the same time to trigger the restriction: first, the subject of the lawsuit is limited to the plaintiff himself. If the defendant initiates a divorce lawsuit, it is not subject to the six-month limit, and the defendant can sue at any time; Second, the previous case was decided not to allow divorce or mediation to settle the case. Third, there is no new situation or reason for this prosecution. Fourth, it is less than six months before the previous case came into force. If one of the four elements is missing, the court should file a case for acceptance.

Regarding the starting point, six months shall be counted from the date when the first judgment takes legal effect, instead of the date when the judgment is made: if the appeal period expires 15 days after the judgment of the first instance is served, and both parties have not appealed, the judgment shall take effect from the date when the appeal period expires; if an appeal is filed, it shall be counted from the date when the judgment of the second instance takes effect. Where reconciliation is achieved through mediation, the period shall be calculated from the date on which the mediation statement is served. In practice, many parties to the "receipt of the judgment" from the date, a few days in advance to submit the prosecution materials, the court will still be in accordance with the effective date of strict control, easy to be ruled not to accept, a waste of an opportunity.

2. What constitutes "new circumstances or new grounds": a detailed breakdown of six common scenarios.

"New situations and new reasons" are not listed in a closed manner, but the judicial practice basically focuses on the following six categories: first, if domestic violence occurs or continues to be implemented after the judgment, or if the respondent is facing the real danger of domestic violence, and the respondent violates the personal safety protection order to implement domestic violence, the courts in many places can clearly identify it as a new situation and a new reason; second, the other party bigamy or cohabites with others after the judgment; third, gambling, drug abuse and other bad habits are still repeated after the judgment; fourth, the other party transfers, conceals, sells, and squanders the common property of the husband and wife, harming their own rights and interests; fifth, one party is sentenced, whereabouts are unknown, and declared missing, and the marriage relationship cannot be objectively maintained; sixth, the two parties continue to separate after the judgment and the relationship has not improved, especially after a year of separation-at this time-it is not "can be sued, rather, it is the circumstances in which divorce should be granted under the Civil Code. It needs to be reminded that whether it constitutes a new situation and a new reason shall be examined by the court and judged in combination with the evidence, and the oral claim that "I want to leave again" does not constitute a new situation; If you advocate a new situation, you should state it in the indictment and attach evidence.

Why is the probability of the second prosecution of the 3. higher and the two new situations of "should be sentenced"

Article 1079 of the Civil Code stipulates that the people's court shall conduct mediation when hearing divorce cases, and the divorce shall be granted if the relationship has really broken down and the mediation is invalid. It also lists the circumstances that the divorce shall be granted, such as bigamy or cohabitation with others, domestic violence, abuse and abandonment of family members, gambling and drug abuse, and separation for two years due to emotional discord, after the people's court has ruled that the 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 "second prosecution protection clause" established by the Civil Code, and the plaintiff of the second prosecution is the most favorable legal fulcrum.

Logically in practice, after the first judgment forbids divorce, if the two parties still can't make up, continue to separate or communication deteriorates, the court gets the previous case file in the second prosecution and finds that the relationship has not improved after the judgment, and usually tends to believe that the relationship has indeed broken down, and the probability of judgment is significantly higher than that of the first time. However, it must be clearly understood: a second lawsuit does not automatically result in divorce. In the divorce dispute between Yin and Guan made public by the Ningbo court, the two sides were separated for a long time, but they were not allowed to divorce because of the lack of effective evidence of "emotional discord and separation for two years". In the divorce dispute case between Wang and Han, the two sides have lived together for more than 20 years, have six children, and the defendant is serving his sentence, the court still considers the marriage foundation, the children's situation and the harmony may not break down. It is evident that “waiting six months before filing a lawsuit” is merely a procedural requirement; substantively, the claim of marital breakdown must still be supported by evidence such as the duration of separation, records of communication, and the other party’s misconduct.

4. The operational procedures and list of materials for the second lawsuit.

Proceeds according to the following steps, which can minimize the idling of the procedure: 1. Confirm the effective date of the first judgment, and push back the expiration date of six months, and make all preparations before the expiration; 2. Continuously fixed evidence during the waiting period -- the fact of separation (residence certificate, water and electricity payment record, lease contract), communication record of both parties, evidence of the other party's fault or new contradiction, and clues of property changes; 3. In drafting the indictment, it is necessary to state the case number of the first prosecution, the judgment result, and the specific facts that the relationship between the two parties has not improved during the six-month period, and attach a list of new evidence; 4. Determine the jurisdiction court: it is still determined according to the defendant's domicile or habitual residence (Article 22 of the Civil Procedure Law). The defendant has left his domicile for more than one year, his whereabouts are unknown, or filed divorce proceedings against the imprisoned, may be under the jurisdiction of the court of the plaintiff's domicile in accordance with the law; 5. Prepare the filing materials: complaint, ID card, marriage certificate, first judgment or mediation statement, evidence materials and copies, birth certificates of children involved, evidence of property involved; 6. The filing can be submitted online through Zhejiang Court Network or "People's Court Online Service" applet; 7. Involving property division, assess whether it is necessary to apply for property preservation and truthfully fill in property declaration; 8. Cooperate with court mediation during the trial, but insist on divorce claims with facts and evidence, and at the same time advocate child support, property division and fault damages. The cost and cycle of litigation also need to be known: the acceptance fee for the second prosecution shall be charged according to the standard of divorce cases (50 yuan to 300 yuan per case, and the part involving the division of property exceeding 200,000 yuan shall be paid separately in proportion, subject to the approval of the court), and the preservation fee shall be paid separately for property preservation; From filing, service, hearing to judgment, summary procedure is generally concluded within three months, and ordinary procedure is six months, there is a longer cycle of identification, investigation, etc. If a party genuinely faces financial hardship, they may, in accordance with the law, apply for a deferral or reduction of court fees; if they meet the eligibility criteria for legal aid, they may apply to the local legal aid agency. In terms of procedural advancement, it is suggested to entrust professionals to act as agents, leaving time and energy for evidence organization and emotional management, so as to avoid further delays due to procedural defects (delivery address, time limit for proof, absence from the trial). During the trial, it is suggested to prepare a "timeline of emotional breakdown": the key nodes such as acquaintance and marriage, conflict outbreak, separation, first prosecution, judgment result, post-judgment relationship change, etc. should be listed as a timetable for presentation in court, which is more convincing than general statements in cooperation with evidence grouping. Mediation organized by the court can make flexible concessions on upbringing arrangements and property division, however, the "no-leave" mediation program should be explicitly rejected, lest mediation and a good record become an obstacle to the second prosecution. Avoid further delays caused by procedural defects (such as the address for service, the deadline for submitting evidence, and in‑person hearings held in the defendant’s absence). At the same time, the plaintiff also asserts claims for child custody, property division, and compensation for damages arising from fault.

5. Common misconceptions

Myth 1: You can file another lawsuit immediately after the judgment takes effect. If there is no new situation or new reason, it must wait for six months, otherwise the court will not accept it, and the prosecution materials will be returned or ruled not to be accepted.

Myth 2: The court will definitely grant a divorce in the second lawsuit. A high probability does not mean that a divorce is inevitable. If there is still a possibility of amicable feelings, or the time of separation is insufficient or the evidence is insufficient, it may still be rejected again, and the preparation of evidence determines the success or failure.

Misconception 3: Withdrawing the lawsuit is better than a judgment denying divorce, and one can file suit again immediately after withdrawing the complaint. Withdrawal cases do not produce the res judicata of "divorce is not allowed to be judged". However, according to the practice of many courts, those who withdraw the lawsuit or have no new circumstances or new reasons after withdrawal, and those who sue again within six months will not be accepted. Moreover, repeated prosecution and withdrawal of the lawsuit will easily make the court think that the relationship between the two parties is still volatile and not broken, which is not conducive to the future judgment.

Misconception 4: During the six-month period, you don’t need to do anything. The waiting period is precisely the golden window to gather evidence of the breakdown of the marriage, sort out the financial situation, and document the fact of separation. Wasting these six months is tantamount to forfeiting the most crucial advantage for a second divorce lawsuit.

Misconception 5: Simply stating “there is new information” is enough to file a lawsuit immediately. The new situation and new reason must be domestic violence, bigamy and cohabitation, bad habits are difficult to change, transfer of property and other legal or practical recognized situations, and must be supported by evidence, and the court will review the substance when filing a case.

6. Time management and evidence segmentation during the waiting period

The six-month waiting period is not "waiting and waiting", but an evidence project that advances item by item according to the timeline, which can be subdivided into three stages. The first stage (within one month after the judgment takes effect): confirm the effective date and record it in writing, apply to the host judge or the archives department for obtaining the file materials of the first lawsuit (the full text of the indictment and the judgment), sort out the list of evidence submitted and not submitted in the first lawsuit, find out the weak link of losing the first lawsuit-whether the separation evidence is insufficient or the reconciliation may not be excluded, and strengthen it according to the disease. The second stage (the second to the fourth month): fix three types of evidence around the main line of "emotional breakdown": first, the fact of separation, including proof of the starting point of separation (moving record, house lease contract, residence water and electricity payment form, property registration, community residence certificate), proof of independent life during separation (separation of income and expenditure, express delivery and medical treatment records of different addresses); The second is emotional deterioration, including the communication records of quarrels and conflicts between the two parties, the records of the other party's refusal to make up or negotiation failed, and the testimony of relatives and friends about their emotional status. Third, the other party's fault category includes extramarital affairs clues (legal evidence collection is required), domestic violence alarm records, punishment materials for gambling and drug abuse, and capital flow clues for transferring property. The third stage (the fifth to sixth months): drafting the complaint and the catalogue of evidence, calculating the alimony and property division plan, and applying for pre-verification of investigation orders on property clues if necessary, to ensure that the filing materials are formed at one time.

What is worth mentioning is the time cost: the second prosecution usually still needs three to six months from filing the case to the judgment. If the first judgment has been separated for a long time, it is suggested to file the case as soon as possible after the expiration of the sixth month, so as to link up the "separation for one year" with the litigation cycle-the "separation for one year" in the fifth paragraph of Article 1079 of the Civil Code starts from the effective judgment, an early start would satisfy that condition as early as possible. If the property situation is complex, it is advisable to first consult with the judge handling the case regarding the application for property preservation, in order to prevent the opposing party from transferring assets during the litigation.

7. Frequently Asked Questions

In a second divorce lawsuit, must the parties appear in court in person?

Divorce cases involve identity relationship. In principle, I am required to appear in court. If I am unable to appear in court due to special circumstances, I must submit written opinions to the people's court. If I refuse to appear in court without justifiable reasons, I may be treated as withdrawing the lawsuit, which will lengthen the procedure cycle again.

If the defendant files for divorce within six months, will the court accept the case?

Yes. The six-month limit only binds the former plaintiff, and the defendant, as the new subject of prosecution, is not restricted and can initiate divorce proceedings at any time.

After a court has ruled against granting a divorce, how long should the couple live separately before filing another lawsuit to ensure the best chances of success?

If a lawsuit is filed after a year of separation, the fifth paragraph of Article 1079 of the Civil Code stipulates that divorce should be granted, which is the safest time point; if it is less than a year, it is still comprehensively reviewed according to the breakdown of feelings, and more sufficient evidence of separation and relationship deterioration is needed.

Can the second lawsuit address both child custody and property division in one go?

Sure. At the time of prosecution, requests for child support, alimony, visitation rights, property division and debt disposal can be filed together, and the court will deal with them at the same time as the judgment; if minor children are involved, it is more conducive to the judgment to prepare the support plan in advance.

After the first lawsuit, the two parties reconciled and resumed living together—does that still count as “separation”?

No, it doesn’t count. The separation must be based on the premise of emotional discord and continue and interrupt the state of common life; If you have lived together or lived frequently after the judgment, the calculation of the separation time may be interrupted, and the objective state shall be restored with evidence.

8. Practical Insights from a Lawyer

The first time a divorce isn’t granted, the biggest mistake is giving in to the urge to “file again right away.” In practice, if there is no new situation or new reason, it usually takes six months for the last judgment to take effect before it can be prosecuted again, and it will only be blocked out. Therefore, this period of time is not waiting, but as a preparation period: to sort out the evidence system that the relationship has indeed broken down, and to fix the fact that the relationship between the two parties has not improved and the separation continues after the judgment. Whether the second divorce lawsuit can result in a judgment granting the divorce at once largely depends on how much evidence or documentation you have gathered over the past few months.

New situations and new justifications can be proactively created. A continuous and demonstrable state of separation, as well as circumstances such as one party cohabiting with another person, committing domestic violence, or abandoning family members, can all have a substantial impact on the case. In particular, when a divorce is initially denied by the court and the parties subsequently live separately for another full year before filing suit again, the law tends to favor granting the divorce. Therefore, separation must be documented—rental agreements, utility bills, community or witness statements, and any communication records between the parties regarding the separation should all be consciously preserved. Don’t let “we’ve been separated for a long time” remain just words.

The rhythm of the second time should also be arranged. Before the prosecution, the property should be cleared again and the chain of evidence should be perfected. The main line of "the relationship has not improved after the judgment" should be highlighted in the litigation to avoid repeating the old words of the first time. At the same time, the other party is allowed a channel for mediation and negotiation. Many cases were negotiated under the pressure of the second lawsuit. It should be reminded that the continuity of separation should not be interrupted because of the rush to sue, such as accepting the other party's proposal to "try to make up" and moving back to live together. This kind of repetition will often make the accumulated separation facts come to an end.

The success or failure of the second divorce prosecution is technically stuck in the "six-month threshold and new circumstances and new reasons" and substantially depends on the "chain of evidence of emotional breakdown". It is suggested that the parties concerned should reverse the timetable immediately after the first judgment comes into effect: fix the facts of separation during the waiting period, keep communication records, sort out the arrangement of property and children, and state in the second complaint the number of the previous case, the result of the judgment and the fact that the relationship after the judgment has not improved; The plan involving the advance preparation and maintenance of minor children. At the same time, assess whether to claim damages, household compensation and other incidental claims, the full effectiveness of a lawsuit.