What is the cooling-off period for divorce in Ningbo? Agreement divorce is very different from litigation divorce.
A couple went to the Civil Affairs Bureau with a written divorce agreement, but the staff told them that they could not get the license on the same day and that they would have to go through a 30-day cooling-off period. Mr. Li wondered: Does all divorces have to wait 30 days? First, give a conclusion: No. The cooling-off period for divorce (30 days) is only applicable to divorce by agreement; the cooling-off period is not applicable to litigation divorce. If one party does not agree to the divorce or has disputes over the property and children, he can directly sue the court. If the court mediation is invalid and the relationship has indeed broken down, the divorce shall be decided. Only by clearly separating the "30-day cooling-off period for agreed divorce" from the "emotional breakdown review for litigation divorce" can we know which way to go and what time limit each has.
1. Legal Basis: Complete Rules of Article 1077 of the Civil Code
the direct basis for the cooling-off period is Article 1077 of the Civil Code: "Within 30 days from the date of receipt of the application for divorce registration by the marriage registration authority, either party may withdraw the application for divorce registration from the marriage registration authority. Within 30 days after the expiration of the period specified in the preceding paragraph, both parties shall apply in person to the marriage registration authority for the issuance of a divorce certificate; if they fail to apply, the application for divorce registration shall be deemed to have been withdrawn." There are four time nodes for dismantling the provisions: first, the date of application acceptance-the date on which the Civil Affairs Bureau receives the divorce registration application, and the cooling-off period will start from then on; Second, the cooling-off period is 30 days-either party can unilaterally withdraw it without the consent of the other party. Third, within 30 days after the expiration of the cooling-off period-both parties must jointly apply for the certificate, which is the second "30 days. The whole divorce process by agreement can be summarized as "application → 30-day cooling-off period → (within 30 days after expiration) joint certification". During this period, the marriage relationship still exists, and the property and debts are still handled according to the joint relationship of husband and wife-the income obtained by either party during the cooling-off period is still common property, and external debts may still constitute common debts, which is the most easily overlooked risk point during the cooling-off period.
2. Agreement Divorce and Litigation Divorce: Application and Cohesion of the Two Putes
the two paths are divided according to the "possibility of consensus:
- divorce by agreement: Both parties voluntarily divorce and reach an agreement on child support, property division and debt handling, and jointly apply to the marriage registration authority. The advantages are fast, low cost and non-disclosure. The price is that it is bound by the cooling-off period, and the contents of the divorce agreement must be complete (voluntary divorce and child support, property and debt handling opinions). Missing matters need to be claimed separately in the future.
- Divorce: one party does not agree to divorce, or property, children can not reach an agreement, to the court. The 30-day cooling-off period is not applicable, but the conditions of article 1079 of the civil code must be met-the court shall mediate first, the mediation shall be invalid and the relationship shall be broken (bigamy or cohabitation with others, domestic violence, gambling and drug abuse, separation for two years due to emotional discord, or other legal circumstances leading to emotional breakdown). If the other party is sued for the first time and there is no sufficient evidence of breakdown, divorce is usually no divorce, it is necessary to prosecute again 6 months after the judgment takes effect (except for new circumstances and new reasons).
Attention should be paid to the convergence rules: those who renege on their words during the cooling-off period of divorce by agreement or fail to obtain a certificate within the time limit may be converted to divorce by litigation at any time; After mediation and reconciliation in litigation or divorce is not allowed by judgment, the agreement procedure shall be followed again. In emergency situations such as domestic violence and transfer of property, litigation divorce + property preservation is more secure than a cooling-off period-a cooling-off period is not a "buffer zone" to protect the perpetrator ".
Mistakes Clarification of 3. Cooling-off Period and Ningbo Data
there are several high-frequency misunderstandings around the cooling-off period: first, "all divorces will take 30 days"-there is no restriction on divorce in litigation; Second, "divorce will automatically occur after the cooling-off period expires"-after the expiration of the period, both parties must jointly apply for a certificate, which will be deemed as withdrawal. Third, "no prosecution during the cooling-off period"-if the other party is found to have transferred property or committed domestic violence during the cooling-off period, it can sue the court at any time and apply for preservation. Fourth, confuse the "marriage cooling-off period in litigation" with the legal 30 days-the "marriage cooling-off period" implemented in family trials in Ningbo Yinzhou and other places is a mediation mechanism, which is different in nature from the agreement divorce cooling-off period in Article 1077 of the Civil Code and cannot be confused.
4. Procedure and Material List
the divorce agreement follows five steps: the first step is to confirm that it can reach a consensus and draft a divorce agreement (stating the opinions on voluntary divorce and child support, property and debt handling); In the second step, both parties should submit an application for divorce registration to the marriage registration authority (which can be reserved through the "Zhejiang Marriage" column of "Zhejiang Office" APP), receive the acceptance receipt, and the cooling-off period will start from then on. Step 3, if either party goes back on its word within 30 days of the cooling-off period, it shall go to the marriage registration office to withdraw it with its ID card; the fourth step, both parties shall be present together within 30 days after the expiration of the cooling-off period to apply for the certificate and obtain the divorce certificate; the fifth step, those who fail to obtain the certificate within the time limit shall be deemed to have withdrawn and need to apply again; if the other party goes back or refuses or refuses to cooperate, it shall be divorced in time. List of materials: ID cards, marriage certificates, divorce agreement (in triplicate), 2 2-inch single recent bareheaded photos, divorce registration application form and declaration form of both parties; Ningbo agreement divorce is free of charge.
Risk Window and Response of 5. Cooling-off Period
the cooling-off period is a "buffer zone" for agreed divorce and a window of risk that needs to be fortified in advance. The first risk is property transfer: the marriage relationship still exists during the cooling-off period, one party may suddenly transfer deposits and sell common property within 30 days, while there is no litigation preservation procedure to rely on in the agreed divorce stage-the preventive method is to fix the property evidence (bank flow, ownership certificate photo filing) before applying for registration, and immediately turn to litigation divorce and apply for property preservation if any abnormality is found. The second risk is debt expansion: during the cooling-off period, one party raises a large amount of debt in his own name, which may constitute a common debt if it is deemed to be used for the couple's common life or common production and operation; For the party who cannot control the other party's borrowing behavior, it is suggested to specify the debt commitment rules in the divorce agreement (the internal agreement is valid for both parties, and the external agreement cannot be used against bona fide creditors), and the evidence of the other party is retained for defense. The preventive method is to confirm the time with the other party one week before the license is obtained, and make an appointment in advance if necessary. If the other party shows signs of going back on his word, he will immediately switch to litigation for divorce to avoid re-queuing.
The fourth risk is the loophole in the agreement: either party can withdraw during the cooling-off period, and the agreement will naturally not take effect after withdrawal, and the expenses and losses incurred during the period will be borne by each other in principle. The fifth risk confusion procedure: the "marriage cooling-off period" evaluation mechanism implemented in family trials in Yinzhou and other places is used in the litigation mediation stage. The judge can give both parties a cooling-off period to observe whether the relationship has indeed broken down. Its nature is a judicial mediation method, which is different from the cooling-off period for administrative registration in Article 1077 of the Civil Code-receiving the "cooling-off period" arrangement in litigation is not equal to the suspension of divorce proceedings, but only a part of mediation. Think clearly about the five risk points in advance, and only by agreement can divorce "enter the door smoothly and obtain the certificate steadily".
The time limit and procedural rhythm of 6. re-prosecution.
In the connection between litigation divorce and agreement divorce, the term node is the most likely to misjudge. If the divorce is not allowed to be divorced for the first time, according to item 7 of article 127 of the civil procedure law, if there is no new situation or new reason, the plaintiff must not sue again until six months after the judgment comes into effect-but "new circumstances and new reasons" (such as the other party's domestic violence, transfer of property, separation for one year, etc.) can break through the restriction, and must explain to the court and attach evidence. Before the second prosecution, the new facts after the first lawsuit were compiled into a book: the record of continued separation, the evidence of the other party's new fault or transfer of property, and the invalid mediation process were all materials supporting the "feelings have indeed broken down. Related to this, the fourth paragraph of Article 1079 of the Civil Code also has a rule that is often ignored: after the people's court has ruled that divorce is not allowed, the two parties have been separated for another year, and one party files a divorce lawsuit again, The divorce should be granted-this "second prosecution and separation for one year" path provides a clear expectation of re-litigation for the parties who have not been divorced for the first time, and the evidence of separation will begin to accumulate from the effective date of the judgment. In terms of cooling-off period: if the divorce agreement is withdrawn or the application is reapplied after the expiration of the time limit, the cooling-off period will start for 30 days. There is no "freezing period" limit between the two applications. However, repeated withdrawal will lengthen the overall period. It is suggested to think clearly whether the negotiation has failed or there are other concerns before withdrawing.
The overall grasp of the rhythm of the procedure: the first agreement that can be negotiated (about 30-60 days for a cooling-off period plus a license window); If the negotiation breaks down, it will be transferred to litigation immediately (the first litigation period is usually 3-6 months, and those who have not been sentenced to leave will wait 6 months before filing a lawsuit); If domestic violence or property transfer is involved, skip the agreement and apply for preservation. Don't leave time for the other party to transfer property during the cooling-off period. Writing nodes on the calendar is much more efficient than panic.
Reminder of 7. Ningbo Handling Node
the processing scene where the program node is dropped to Ningbo: if the divorce is agreed, the marriage registration shall be reserved in the "Zhejiang marriage" column of "Zhejiang office" APP. the registration offices of all districts (counties, cities) such as the first floor of the government service center at 58 meteorological road in Haishu district, 99 Siming east road in yinzhou district and the park can be handled. one party's household registration can be handled in Zhejiang province; after submitting the application, keep in mind the two dates-the expiration date of the cooling-off period and the deadline for receiving the license. arrange the license to be received one week before the deadline and confirm with the other party in advance to avoid re-queuing due to "card point failure. If it is converted to litigation for divorce, it shall be filed with the Ningbo grass-roots court with jurisdiction. After filing the case, the court shall first mediate and enter the trial if the mediation fails. If the divorce is not allowed by the judgment, the date of the lawsuit after six months shall be marked on the calendar, during which new evidence such as separation and transfer of property shall continue to be fixed. In the case of property preservation, an application shall be submitted together with the advance payment of the preservation fee at the time of prosecution, and the court shall make a ruling within 48 hours (in case of emergency)-the risk of property that cannot be preserved during the cooling-off period shall be supplemented by preservation tools in the proceedings. If a party is clearly insincere, it is not necessary to spend time on the cooling-off period by evaluating the litigation path directly.
8. FAQ
when does the cooling-off period begin?
30 days from the date of receipt of the application for divorce registration by the marriage registration authority; during this period, either party may withdraw it unilaterally without the consent of the other party.
Is divorce automatic after the cooling-off period?
Not automatically. Within 30 days after the expiration of the cooling-off period, both parties shall jointly apply to the marriage registration authority for issuing a certificate. Those who fail to apply within the time limit shall be deemed to have been withdrawn, and the cooling-off period shall be reapplied and recalculated.
Can I sue for divorce during the cooling-off period?
Can. If the other party is found to transfer property, domestic violence, etc. during the cooling-off period, it may file a divorce lawsuit with the court and apply for property preservation at any time, and is not subject to the cooling-off period.
Do I have to wait 30 days for a divorce?
No need. The 30-day cooling-off period for divorce by agreement is not applicable to litigation divorce, but the court must mediate and review whether the relationship has indeed broken down. It is usually difficult to judge the divorce for the first lawsuit, and it is necessary to grasp the time point for the second lawsuit.
Practical Experience of 9. Lawyers
many people regard the cooling-off period as that all divorces have to wait 30 days. In fact, it only deals with the way of divorce by agreement. After both parties apply to the Civil Affairs Bureau, they will go through a 30-day waiting period, during which either party can unilaterally withdraw the application. After the expiration of the period, two people will have to go together to collect the license within 30 days. If they don't go, they will have to apply for it once in vain and have to go again. If one party does not agree to divorce, or if the property or children cannot be negotiated, he will go to court directly. There is no cooling-off period. First, distinguish which road you should take, and then the time schedule will be meaningful.
The biggest trap of the cooling-off period is to make people think that they have to wait anyway and can take their time. During this period, the marriage is still married, income and debts are still handled according to the common relationship, and the other party can use this period to dispose of property, transfer deposits or borrow money. Therefore, from the moment the application is submitted, the property clues, account flow and important vouchers should be fixed synchronously, and the cash and valuables in the home should also be known. Don't delete the chat records that should be kept, and don't drag on the whereabouts of the funds that should be asked. If the other party withdraws the application halfway, you must have the preparation and materials to transfer the lawsuit immediately.
In terms of rhythm, agreement and litigation are not optional, but can be connected. The agreement will be achieved quickly and at low cost. If we can't talk about it, the other party is just dragging, so we should sue earlier and don't run back and forth at both ends. We should also keep an eye on it: if the divorce agreement signed at the negotiation stage is not registered in the end and the other party goes back on its word in the lawsuit, the property agreement in that agreement may not directly bind him; If you want to lock in the result, it is more stable to ask the court to preside over mediation and make a mediation document in the lawsuit. Think of the path and time limit ahead so that you won't be led.
The cooling-off period of divorce is a "buffer zone" set up for agreed divorce, not all obstacles to divorce: it is possible to follow the agreed path through negotiation, and keep an eye on the two windows of "cooling-off period 30 days + license 30 days"; Those who fail to negotiate or have domestic violence or property transfer will take the litigation path directly, and will not be bound by the cooling-off period and apply for preservation simultaneously. Reminder to the parties concerned: during the cooling-off period, the marriage relationship still exists, the income is still common property, and debts may still constitute common debts. don't forget the risks during the cooling-off period. The contents of the agreement are fully written (children, property and debts), and don't miss the license window-Ningbo's nearly 40% withdrawal rate shows that there are many "white applications" after the cooling-off period.