Insights

Ningbo Judgment No Divorce, Will Another Prosecution be Sentenced

Ningbo Author：LuXu WANG

After many parties sued for divorce for the first time and the court ruled that divorce was not allowed, they would ask: wait a little longer, and the second lawsuit would definitely lead to divorce? First, give a conclusion: after the judgment of divorce is not allowed, both parties have been separated for another year, and if one party sued for divorce again, the court should grant divorce; if it is less than one year, the court will comprehensively judge whether the relationship has indeed broken down. The probability of a divorce being granted on the second filing is indeed higher, but it is not automatic—accurately timing the “six-month waiting period before re‑filing” and the “one-year separation requirement for mandatory divorce,” and solidifying the fact of separation as evidence, are far more important than simply waiting for the second filing.

1. Legal basis and two key time points

Article 1079, paragraph 5 of the Civil Code of the People's Republic of China stipulates: "If, after a people's court has ruled against granting a divorce, the parties have lived separately for another full year, and one party files for divorce again, the divorce shall be granted." “This is the most robust rule currently established by law for ‘second lawsuits’: as long as the three conditions are met—‘the court has previously ruled against divorce,’ ‘the couple has lived separately for at least one year,’ and ‘one party files suit again’—the court must grant the divorce, without further inquiry into whether the marital relationship has irretrievably broken down.” In line with this is a procedural threshold—Article 127, Item 7 of the Civil Procedure Law of the People's Republic of China stipulates that for divorce cases where the court has ruled against granting a divorce or where reconciliation was achieved through mediation, as well as cases involving the maintenance of adoption relationships by judgment or mediation, if there are no new facts or grounds and the plaintiff files another lawsuit within six months, the case shall not be accepted. In other words, if there is no new situation or new reason after the plaintiff receives the judgment or mediation statement forbidding divorce, he must wait six months before suing again. Six months is the "earliest prosecution" time, while "one year of separation" is the substantive condition of "should be sentenced to leave". The two go hand in hand: it is of course more than six months when one year of separation is completed and then prosecuted.

In addition, the second and third paragraphs of Article 1079 of the Civil Code stipulate the legal circumstances of emotional breakdown: bigamy or cohabitation with others; domestic violence or abuse or abandonment of family members; gambling, drug abuse and other bad habits that do not change after repeated education; separation for two years due to emotional discord; other circumstances that lead to emotional breakdown of husband and wife. If the mediation fails, the divorce shall be granted. If, in the first lawsuit, the aforementioned circumstances were already present but the court still ruled against divorce—often due to insufficient evidence—then, in the second lawsuit, supplementing the evidence to fully demonstrate those circumstances is key to securing a divorce judgment.

Breakdown of 2. situations: different directions of the second prosecution

  1. After a court has ruled against divorce and the parties have lived separately for one full year, if they file suit again: This satisfies Article 1079, paragraph 5, of the Civil Code, and the court shall grant the divorce without requiring further proof of other grounds for the breakdown of the marital relationship. This is the most certain course of action.
  2. Filing a lawsuit again six months after the court has ruled against divorce, but with less than one year of separation.: After accepting the case, the court still makes a comprehensive judgment according to whether the feelings are broken or not. At this time, the actual living conditions after the first judgment (whether they are separated or not, whether they are reconciled or not) become the focus of the review. The probability of judgment of separation with evidence is obviously higher than that of "still under the same roof.
  3. After the sentence is not divorced, the two parties reconcile or remarry and change again.: It can no longer be claimed on the grounds of "being separated for one year after being sentenced", and the time and reason of prosecution should be re-measured according to the general conditions of divorce.
  4. First lawsuit—withdrawn or treated as withdrawn: The same six-month limit applies (no new circumstances, new reasons), and the defendant is not subject to this limit if he sues during this period.
  5. If new circumstances or grounds arise (e.g., the other party commits domestic violence, transfers assets, or commits bigamy), you may file a subsequent lawsuit at any time, regardless of the six-month limitation; however, you must provide evidence to substantiate the “new circumstances” or “new grounds.” In cases of domestic violence, you may apply for a personal protection order, which can serve as a basis for the subsequent lawsuit.

Determination of 3. separation: Evidence is more important than "facts"

Legal separation has a strict definition: living apart due to marital discord, with neither party fulfilling the duties of marriage toward the other. Living apart from one’s spouse due solely to work, study, or similar reasons, or sleeping in separate beds under the same roof, is generally not considered separation. Evidence for determining separation can be fixed in groups: first, evidence of separation agreement-clear statements in WeChat and SMS about "we live separately" and "emotional discord and separation"; Second, evidence of residence facts-rental contract, landlord's testimony, payment records of utilities and property fees, and residence certificate issued by the community (village) where they live; Third, no evidence of contacts-no common travel, no common consumption, no economic contacts and records during separation; Fourth, third-party corroboration-witness testimony of relatives, friends, neighbors and colleagues. A reverse risk to be aware of: During the period of separation, if the couple continues to cohabitate frequently, travel together, maintain a commingling of finances, or have children, the other party may present evidence to show that the marital relationship has not irretrievably broken down, thereby interrupting the continuity of the separation. From the date the court first rules against divorce, it is essential to consciously cultivate and maintain a coherent chain of evidence documenting the separation.

4. Procedures and Time Limits: From the date the judgment takes effect to the re-filing of the case.

Timeline in sequential order: After the first-instance judgment denying the divorce is served, either party may file an appeal within 15 days; if no appeal is filed, the judgment shall become effective upon the expiration of the appeal period. The six-month period shall be calculated from the date the judgment takes effect; after six months have elapsed, the plaintiff may file suit again (unless there are new circumstances or new grounds for the claim). The jurisdiction for a subsequent lawsuit is the same as for the first: it shall be brought before the basic-level people’s court at the defendant’s domicile (or habitual residence); if the defendant is imprisoned or subjected to compulsory education measures, the plaintiff may bring the suit before the court at the plaintiff’s domicile. The case filing materials include: the complaint, identification documents of both parties, the marriage certificate, the first-instance judgment and proof of its finality (which can be obtained from the court of original jurisdiction), as well as evidence of separation and breakdown of the marital relationship.

5. Common Misconceptions

  • Myth 1: If a divorce is not granted the first time, it will definitely be granted the second time. Positive explanation: The probability of the second divorce is high, but the legal conditions still need to be met (the divorce should be sentenced after one year of separation) or sufficient evidence of emotional breakdown should be provided, which is not automatic divorce; if the prosecution is just over six months and both parties still have contacts, it may still be rejected again.
  • Myth 2: Sleeping in separate beds is the same as living apart. Correct answer: Legally, separation typically requires that the parties reside in separate dwellings; sleeping in separate beds under the same roof is generally not considered separation, as it must be accompanied by both a factual separation of residence and mutual agreement to that effect.
  • Misconception 3: You can file another lawsuit immediately after the judgment takes effect.Correct answer: If there are no new circumstances or new grounds, the plaintiff must wait six months; courts will not accept a lawsuit filed ahead of time, rendering the trip to court futile.
  • Misconception 4: Occasional meetings during the period of separation have no impact.Correct answer: Occasional meetings do not necessarily negate the fact of separation, but frequent cohabitation and commingling of finances may lead to a determination that the marital relationship has not irretrievably broken down. The state of separation must be maintained in a manner that is clear and verifiable.
  • Misconception 5: No need to prepare new evidence for the second lawsuit.Correct answer: The court will focus on reviewing the parties’ living conditions after the first judgment becomes final. Evidence of separation and evidence that reconciliation has failed both constitute “new grounds” for the second lawsuit, so the preparation of evidence should be even more meticulous than in the first case.

List of evidence 6. emotional breakdown and separation

Whether a second divorce lawsuit will result in a divorce largely depends on the completeness of the evidence list. It is suggested to prepare and number according to five groups: the first group of evidence of emotional breakdown-chat records that can reflect long-term contradictions and mutual distrust, written or voice statements of the other party admitting emotional breakdown, alarm records, warning letters, personal safety protection orders (involving domestic violence), household registration, birth certificates and other materials of the other party's bigamy or giving birth to children with others; the second group of separation evidence-written expression of intention of separation start time (WeChat, SMS, email), rental contract and landlord testimony, utility and property fee payment records, residence certificates issued by residential communities (villages), express delivery and take-out address change records; The third group has no good evidence of reconciliation-no common travel, no common consumption and no economic exchanges during the separation period, witness testimony of relatives, friends, neighbors and colleagues on "living separately for a long time"; The fourth group of custody and property background-who the children live with, the income and property clues of both parties, to prepare for the handling of the custody of the children and the division of property after the divorce; The fifth group of procedural materials-the first judgment and effective certificate, marriage certificate and identity certificate. Three tips on evidence organization: first, "separation" should be able to prove that separation due to "emotional discord"-work assignment, study and other objective reasons does not constitute legal separation, and written meaning is the key to distinguish; Second, it is better to have clear evidence at the starting point of separation (moving date, rental starting date), and unclear starting point will lengthen the waiting period; Third, electronic evidence should be notarized if necessary, the acceptance of electronic evidence such as WeChat by Ningbo Court is based on the integrity of the original carrier. Once all the necessary materials are prepared, you may first initiate pre-litigation mediation to state your position; if mediation fails, you can then formally file a lawsuit—this approach does not put you at a procedural disadvantage.

7. Frequently Asked Questions

Must the second lawsuit be accepted within six months?

Applications are generally accepted if six months have elapsed and all required documents are complete. However, in cases involving new circumstances or grounds—such as domestic violence, concealment or transfer of assets, or bigamy—the six-month restriction does not apply, and a lawsuit may be filed at any time; provided, however, that the party must furnish evidence to substantiate the existence of such “new circumstances” or “new grounds.”

When does one year of separation start?

The one-year period begins from the date when the couple actually started living separately after the first divorce judgment became effective, and the separation must be due to “irreconcilable differences.” Before filing the lawsuit, you must be able to prove that the separation has lasted for at least one year, and it is advisable to have written documentation or proof of residence to support the starting point.

The other party firmly disagrees with the divorce, what will the court decide?

If the parties have been separated for one full year, the court is legally obligated to grant the divorce; if less than one year has passed, the court will make its determination based on evidence of the breakdown of the marital relationship. If the other party does not consent and can provide evidence of continued cohabitation, financial transactions, or signs of reconciliation, the court may still rule against granting the divorce.

I lost the first court judgment—will this affect filing a subsequent lawsuit?

This does not affect substantive rights; however, to initiate the case, you must submit the first-instance judgment and a certificate of finality. You may apply to the original trial court to retrieve the case file and obtain the certificate of finality.

During the second lawsuit, if the other party applies for reconciliation, will the court grant another opportunity?

The court will still assess the realistic possibility of reconciliation: if the other party can provide evidence that the couple has been living together, has engaged in efforts to repair the relationship, and you fail to present sufficient evidence of a breakdown of the marital relationship, the court may still rule against granting the divorce. If your party insists on divorce, you should focus on presenting evidence of “continuous separation coupled with no genuine efforts at reconciliation,” and counter the claim of reconciliation with concrete actions taken after the first judgment—namely, maintaining separate residences and refraining from any financial transactions.

If one spouse falls ill and is hospitalized during the period of separation, and the other spouse provides care, does this negate the separation?

Occasional caregiving (such as hospital bedside care or handling urgent matters) generally does not negate the continuity of separation; courts will distinguish between “temporary caregiving” and a “resumption of cohabitation.” However, prolonged and frequent interactions that result in a return to shared residence may interrupt the separation, and the nature and duration of each instance of contact should be documented as evidence.

During a second lawsuit, if the defendant disagrees, how many times will the court typically attempt mediation?

In Ningbo, family‑law cases generally enter into pre‑litigation mediation, and during the trial, judges also facilitate mediation. There is no fixed upper limit on the number of mediation sessions; however, if the parties have been separated for at least one year, even if mediation fails, the court shall, in accordance with the law, render a judgment granting the divorce. The parties may clearly state during the mediation phase that there is no prospect of reconciliation and cooperate with the submission of evidence to advance the proceedings, without needing to feel anxious about the mediation process itself.

8. Practical insights from a lawyer

If the court didn’t grant the divorce the first time, don’t rush to ask, “Will the second time definitely result in a divorce?” First, take two steps that can influence the outcome. The first is to calculate the exact time: after receiving the judgment or mediation document that does not allow divorce, if there is no new situation or new reason, it usually takes six months to prosecute again, and this node should be closely watched. The second is to fix the separation status and evidence from the day of the judgment-this is the key to whether the second prosecution can "be sentenced to divorce", rather than simply waiting for the second prosecution to come automatically.

From the experience of handling cases, the real gap is the separation evidence. After the first failure, many people ran to "try again" and "live for a few days" with each other. As a result, the continuity of separation was interrupted, and the confidence of the second prosecution was weakened. The correct approach is: if it is really necessary to separate, it will continue to separate after the judgment, and use the rental contract, water and electricity payment, the certificate of the neighborhood committee or unit, and the record of the confirmation of the time of separation by both parties to make up for the time. Upon the expiration of the statutory period, a subsequent lawsuit would shift the focus from whether the marital relationship has irretrievably broken down to the objective fact that the parties have been living separately for a specified duration.

This period of separation hasn’t been wasted; it’s the perfect time to shore up our weaknesses: gather and solidify evidence of child-rearing responsibilities, property-related leads, and the other party’s misconduct, ensuring we have all the necessary documentation ready for the second lawsuit. If, after the first round, the other party becomes willing to negotiate terms, there’s no need to hold out to the bitter end—often, what they truly fear is being drawn into a protracted tug-of-war that increasingly disadvantages them. By presenting them with the court’s rulings and the timeline of the separation, you can often bring them back to the negotiating table. The fast is fast, the other is fast, the rhythm is held in their own hands to take the initiative.

The judgment that divorce is not allowed is not the end, but a new starting point that needs precise calculation: first remember the effective time of the first judgment, and from the effective date, operate the evidence chain of "separation due to emotional discord"-rent, payment, residence certificate and written expression of intention are all indispensable; after separation for one year, sue again, the law will give you a definite answer; less than one year but six months, speak with evidence of emotional breakdown. For parties in Ningbo, it is also advisable to make effective use of the mediation mechanisms in family‑law litigation and the “Certificate of Divorce” system, ensuring that the procedural steps are properly followed and the evidence is thoroughly substantiated; this will place the initiative for a second divorce filing firmly in your hands.

Finally, a practical rhythm is suggested: the second prosecution is not the faster the better, but "the more sufficient evidence the better". Rather than hastily filing for divorce at the six-month mark only to have the case dismissed again due to insufficient evidence, it is better to maintain the separation for a full year—by which time, pursuant to Article 1,079, paragraph 5, of the Civil Code, “divorce shall be granted,” leaving the court with minimal room for discretionary judgment and ensuring the most predictable outcome. For the parties involved in Ningbo, this interim period provides an opportune time to systematically gather and document evidence of separation, as well as to organize and clarify issues related to child custody and property, thereby ensuring that the second lawsuit addresses all matters comprehensively in a single proceeding.