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How to determine the emotional breakdown in Ningbo? 5 cases of divorce ordered by the court

Ningbo Author：LuXu WANG

The raising of 1. issues

ms. Zhang has been married for eight years, and her husband has been drinking for a long time and has repeatedly drunk.

The first time she sued for divorce, her husband expressed repentance in court, and the court did not leave.

This paper will focus on the above issues, from the legal provisions, practical operation, typical cases of three dimensions of the system.

2. legal basis

article 1079 of the the People's Republic of China Civil Code states:

> If one of the spouses requests a divorce, the relevant organization may mediate or directly file a divorce lawsuit with the people's court. In handling divorce cases, the people's court shall conduct mediation; if the relationship has indeed broken down and 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 is declared missing and the other party files divorce proceedings, the divorce shall be granted. After the people's court has ruled that divorce is not allowed, the two parties have been separated for one year, and one party files divorce proceedings again, the divorce shall be granted.

3. core points

  1. bigamy or cohabitation with others: Evidence such as marriage certificate, cohabitation certificate, neighbor's testimony, chat record or letter of repentance is required. A de facto marriage requires proof of living together in the name of the couple.
  2. Domestic violence or abuse, abandonment: you can submit the 110 police record, public security organ inquiry record, injury notice, judicial appraisal, outpatient medical records, injury photos or neighborhood committee mediation records, and prove that there is a causal relationship between the injury and the other party's behavior.
  3. Gambling, drug abuse and other bad habits do not change after repeated education: it is necessary to provide public security management punishment letters, criminal judgments, etc., and at the same time prove that "repeated education does not change", rather than accidental behavior.
  4. After two years of separation due to emotional discord: the separation agreement, neighborhood committee or property certificate, house lease contract, witness testimony, or recording of the other party's approval of the separation shall be submitted.
  5. The sentence is not allowed to be separated for another year after leaving: the previous judgment, a summons, and evidence of another year of separation are required.

4. boundary conditions

  • "Emotional breakdown" does not mean "quarrel" or "personality disagreement", which needs to reach the severity or continuous state prescribed by law.
  • The separation must be caused by "emotional discord", and the separation due to work, study and other reasons generally does not conform to the legal situation.
  • In the first case of divorce, if the other party does not agree and there is no legal situation, the court usually decides that divorce is not allowed.

5. operational steps

  1. collect and fix evidence: according to the specific situation, organize alarm records, medical records, separation certificates, chat records, etc.
  2. Try mediation first: you can mediate through the community, women's federation or marriage registration agency, and then sue if mediation fails. The parties in Ningbo can also apply for mediation through the people's Mediation Committee of the street (township), the Women's Federation or the marriage registration authority, and the marriage registration matters can be booked in advance in Zhejiang.
  3. Drafting a divorce complaint: clearly setting out the facts of emotional breakdown, a list of evidence and a claim.
  4. To the court: generally to the defendant's domicile of the court, special circumstances can be sued in the plaintiff's domicile. In Ningbo, complaints and evidence can be submitted online through Zhejiang Court Network or "Mobile Micro Court", and attention should be paid to verifying the defendant's habitual residence.
  5. For those who have not been sentenced for the first time, they will be prosecuted again after they have been separated for one year after the judgment takes effect, and the possibility of being sentenced is significantly increased.

6. common mistakes

  • myth 1: "automatic divorce after two years of separation". Positive solution: separation for two years is only one of the legal circumstances for the court to decide divorce, and the marriage relationship must be dissolved through litigation or agreement procedures.
  • Myth 2: "The first prosecution did not result in a divorce, and it is useless to sue again". Positive solution: After the divorce is not allowed, the two parties have been separated for another year, and the divorce should be granted if they sue again.
  • Misunderstanding 3: "As long as the other side derailment can be sentenced from". Positive solution: cheating does not mean "living with others". The latter requires continuous and stable living together, and the standard of evidence is higher.

The determination of emotional breakdown is not only based on legal standards, but also supported by evidence. Only by fixing the evidence and understanding the legal situation in advance can we take the initiative in the litigation.

Summary of 7. relevant laws and regulations

the main legal provisions covered in this paper include:

  • article 1079 of the Civil Code
  • article 1079 of the the People's Republic of China Civil Code

8. Practical Operation List

if you are facing related problems, it is recommended to follow the following steps:

  1. collect evidence: organize all written materials, transfer records, chat records, etc. related to the case;
  2. consult a professional: before taking any action, it is recommended to consult a professional lawyer to understand their rights and possible legal consequences;
  3. assessing costs and benefits: litigation requires time and economic costs, which need to be combined with the amount of the case and the probability of winning the case;
  4. choice of dispute resolution: give priority to negotiation or mediation, and consider litigation if no agreement can be reached;
  5. note the statute of limitations: the law does not protect the person lying on the right to sleep, be sure to claim the right within the statutory statute of limitations.

Practical Experience of 9. Lawyers

the failure to divorce in the first prosecution is a hurdle that many parties will encounter, but this does not mean "inseparable". The core criterion of the court's decision to leave is whether the relationship has indeed broken down, and whether it is broken depends on facts and evidence. Therefore, instead of repeatedly asking "why the judge did not judge", it is better to look back at the materials submitted by oneself and see if they can fall into the several situations stipulated by law. Many people suffer losses, and what they say in court is all grievances and complaints, but they can't come up with concrete evidence to support the "breakdown of feelings.

Around separation, domestic violence, bad habits, bigamy or cohabitation and other facts to collect evidence, to tell the time, place and specific process. In particular, separation, once it is claimed that separation is due to emotional discord, attention should be paid to maintaining the continuity of the separation state, and do not go back to live with or "try to make up" during the litigation, otherwise the previous separation may be interrupted. It is very common for the other party to express repentance in court and the court to give a good chance to make up. At this time, what you have to do is not emotional confrontation, but to continue to fix the evidence and maintain separation to lay a good foundation for the next lawsuit.

In terms of rhythm, after the first non-divorce, instead of waiting endlessly, it is better to take the initiative to use the rules to push forward: continue to maintain separation after the divorce is not allowed, leaving enough time and state evidence to create conditions for another prosecution. This is often an opportunity to bring the other party back to the negotiating table-when the other party realizes that it may not be good for them to drag on, the attitude tends to loosen. Therefore, it is more practical to go through the procedures while leaving a negotiation opening than to wait for the result. At the same time, remind yourself not to make actions that will interrupt separation or change the status of property during the negotiation period.