Insights

How to determine that Ningbo's feelings have indeed broken down? 5 legal situations for the court to decide to leave.

Ningbo Author：LuXu WANG

Mr. Wang has been married for seven years. The couple has been in a long-term cold war and has been separated for more than two years. He filed for divorce, but his spouse disagreed, so the court did not grant the divorce on the first attempt. Why hasn’t the court granted a divorce after more than two years of separation? To put it bluntly: the sole criterion for a court to grant a divorce is that “the marital relationship has indeed broken down and mediation has failed.” Separation is merely one piece of evidence used to establish such a breakdown, and it must be continuous separation “due to incompatibility”—a separation of two years without sufficient supporting evidence will still not result in a divorce. However, the Civil Code provides a second opportunity: if, after a judgment denying divorce, the parties have lived separately for another year, and one party files suit again, the court shall grant the divorce. This article thoroughly explains the five statutory circumstances, evidence organization, and the timing strategies associated with “double prosecution.”

1. General Principles and Five Statutory Situations

Article 1,079 of the Civil Code provides: If one spouse requests a divorce, mediation may be conducted by the relevant organization, or the party may directly file a divorce lawsuit with the People’s Court; when hearing a divorce case, the People’s Court shall conduct mediation; if the marital relationship has indeed broken down and mediation fails, the court shall grant the divorce. If any of the following circumstances exist and mediation has failed, a divorce shall be granted:

  1. Bigamy or cohabitation with another person;
  2. Committing domestic violence or abusing or abandoning family members;
  3. Recurring bad habits such as gambling and drug use, despite repeated admonishments;
  4. Having lived apart for two consecutive years due to incompatibility;
  5. Other circumstances that lead to the breakdown of the marital relationship.

This provision also stipulates two special circumstances: where one party has been declared missing and the other party files for divorce, the divorce shall be granted; and where, after a people’s court has ruled against granting a divorce, the parties have lived separately for one full year, and one party subsequently files for divorce again, the divorce shall be granted.

The key to understand this article is that: the five situations are the legal reasons for "should be judged", but they are not the only basis for judgment-if the plaintiff does not fall into the five situations, as long as the plaintiff can prove that "the relationship is broken and the mediation is invalid", the court can also judge the judgment; on the contrary, if the plaintiff falls into the situation but the evidence is insufficient, he may still not judge the judgment. Evidence has always been a more reliable credential than “circumstances.”

2. Breakdown of the constituent elements for the five statutory circumstances

1. Bigamy or cohabitation with another person. Bigamy means that a spouse registers marriage with another person or continues to live together in the name of husband and wife, which may violate the crime of bigamy in Article 258 of the Criminal Law at the same time; "cohabitation with others" does not require the name of husband and wife, but requires continuous and stable cohabitation-occasional infidelity and one-night stand do not constitute "cohabitation" and cannot be sentenced accordingly. In terms of evidence, a rental agreement, property records showing cohabitation, neighbor testimonies, photographs and videos, and records of extramarital childbirth can all serve as corroborating proof.

2. Committing domestic violence or abusing or abandoning family members. Domestic violence is not limited to physical violence, but also includes mental violence such as frequent verbal abuse and intimidation (according to Article 2 of the Anti-Domestic Violence Law). Persistent and frequent domestic violence constitutes abuse; abandonment refers to refusing to support family members who are old, young, sick or incapable of independent living. In terms of evidence, police reports, warning letters, injury assessment reports, hospital medical records, and the court’s ruling on a personal protection order constitute the most compelling combination—these documents also serve as the basis for applying for a personal protection order.

3. Repeatedly fails to correct bad habits such as gambling and drug use.The requirement of “repeated failure to mend one’s ways” means that the harmful habit must be proven to persist despite multiple instances of education, admonishment, and disciplinary measures, rather than being an isolated occurrence. Administrative penalty records from public security organs, certificates from drug rehabilitation centers, records of communication in which family members attempted to dissuade the individual, and witness testimonies may all be used as evidence; however, merely playing cards occasionally or engaging in excessive drinking is generally not sufficient grounds for such a determination.

4. Having lived separately due to incompatibility of temperament for a period of two years. This is the most controversial one in practice, and one of the three elements is indispensable: first, the reason for separation is emotional discord-not counting separation due to working in a different place, studying or seeking medical treatment; second, the state of separation lasts for two consecutive years-if the two parties make up for a short time to live together; third, the two parties do not fulfill their obligations as husband and wife during the separation period, and their economic life is independent. Note: Cohabiting in the same household while sleeping in separate rooms generally does not constitute legal separation; a separation requires residing in different dwellings and maintaining that arrangement continuously.

5. Other circumstances that have led to the breakdown of the marital relationship.TheBottom Clause (catch-all provision) is commonly applied in cases such as: one party being sentenced to a long-term prison term; one party having concealed a mental illness prior to marriage that remains incurable after marriage; one party engaging in an improper relationship with another person and bearing a child; or one party going missing. In a divorce case publicly heard by Meishan Court of Ningbo Beilun District Court in 2021 (reported by Zhejiang Legal Daily), the husband bigamy and gave birth to two children with others. The court decided to compensate 150000 yuan and support 50000 yuan for damages in accordance with Article 1088 of the Civil Code. The second instance of Ningbo Intermediate People's Court upheld the superposition of bigamy and extramarital childbirth, which is not only the legal situation of divorce, but also supports economic compensation and damages.

3. Proof of "separation for two years": The two sides of a Ningbo case

The sufficiency of the evidence of separation directly determines whether “separation for two years” can be established. Two public judgments handed down by the Ningbo courts happen to present opposing perspectives:

  1. Reverse side: Divorce dispute case between Yin and Guan—The parties have been living apart for a prolonged period; however, due to the lack of sufficient evidence demonstrating “separation for two years due to incompatibility,” the court has ruled against granting the divorce. The lesson is this: an oral declaration of separation has no legal effect; the starting point, continuity, and reasons for the separation must all be supported by evidence.
  2. Front: Divorce dispute case between Yan and Yu (Ninghai People’s Court, Ningbo)—The parties have been living apart for a prolonged period, and there is no prospect of reconciliation. The defendant, having been duly summoned, failed to appear; the court rendered a default judgment granting the divorce.

The available separation evidence includes: rental contract and rent flow of different residential addresses, residence registration (residence permit processing record), household name and address of water, electricity and gas payment, residence certificate issued by the property and neighborhood committee, chat records of both parties about the separation facts, witness testimony (neighbors, relatives and friends), and flow of independent income and expenditure. The key is to link the three elements—the starting point, the ongoing state, and the cause of marital discord—into a coherent chain.

4. What if the court doesn’t grant a divorce on the first attempt: The rule is to file again after one year of separation.

If, at the time of the initial lawsuit, the evidence is insufficient or the other party firmly refuses and no statutory grounds exist, the court will typically rule against granting the divorce. At this point, the party concerned is most concerned about “how long they will have to wait before they can file another lawsuit”:

  1. Procedural Limitation: Pursuant to the Civil Procedure Law, in divorce cases where the court has ruled against granting a divorce or where reconciliation was achieved through mediation, if the plaintiff files another lawsuit within six months without presenting any new facts or grounds, the case shall not be accepted—first, the six-month procedural waiting period must elapse.
  2. Entity Breakthrough: The fifth paragraph of Article 1079 of the Civil Code stipulates that after the divorce is not allowed by the judgment, the two parties have been separated for one year, and if one party files a divorce lawsuit again, the divorce shall be granted -- this is a new institutional breakthrough of the Civil Code, which prevents the parties from being "trapped" in the marriage indefinitely;
  3. Strategy: Immediately begin living separately after the first judgment becomes effective and continue to preserve evidence (renting a separate residence, registering your place of residence, maintaining an independent household). Treat the date the judgment takes effect as the starting point for the separation period, and file suit again after one year; the court should grant the divorce.

Common misunderstandings that need to be corrected: it is not "the second prosecution will definitely lead to a divorce", nor is it "the more the number of prosecutions, the easier it is to divorce"-whether the divorce is decided or not depends on the legal situation or the proof that the relationship has indeed broken down; but "the divorce is not allowed to be separated for another year" is clearly stipulated by law, and this road has the highest certainty.

Timeline from the first filing of the lawsuit to the divorce judgment (example, fictional)

Take the first lawsuit for divorce in March 2024 and the ruling of no divorce in June of the same year as an example: the two parties will separate after the judgment takes effect; After one year of separation in June 2025, the court can sue again. After filing the case, the court will organize mediation, and the mediation will not be transferred to the trial. If the residence and payment records of continuous separation can be submitted and the two parties have no good communication records, the court shall grant divorce in accordance with Article 1079. The entire process will take approximately one and a half to two years, offering greater certainty than an “endless tug-of-war.” Pay attention to maintaining the objective state of "living independently" during the separation period, and living together for a short period of time or traveling together frequently may interrupt the continuous calculation of the separation time; The evidence of separation should be "retained and visible": the lease contract, rent transfer record and landlord's testimony should be retained for renting, and the residence registration should be moved to the new address. Parents who live with their parents can have their parents issue a statement and be stamped by the community; keep records of water, electricity, gas and property fees paid in their respective names. Statements in chat records such as “we have separated” or “we are living separate lives” often constitute the most natural form of evidence; witnesses should preferably be neighbors or colleagues who have no vested interest in either party. Evidence collection should begin on the very first day of separation—gathering supplementary evidence is always more difficult than preserving original evidence.

Proof that the reason for separation is “incompatibility of temperament” is often overlooked: the other party may argue that the separation was due to work or caring for elderly relatives. The key to overcoming this lies in securing evidence of both “intensified conflicts prior to separation” and “lack of willingness to reconcile during separation”—namely, records of heated arguments before separation, transcripts of conversations detailing who initiated the separation and the reasons behind it, communications demonstrating refusal to reconcile during the separation period, and evidence of each party’s preparations for a new life. A single line in the chat history—“We just can’t make it work”—often carries more weight than ten rental contracts. It is also necessary to prejudge the defense of "reconciliation is still possible": the judge will review the basis and current situation of marriage, and we should submit objective evidence such as long-term separation, economic independence, no husband and wife life, and refusal to repair, indicating that reconciliation may have disappeared-Ningbo court rejected the application in the case of Wang mou and Han mou, suggesting the direction of evidence organization.

5. Operable steps and evidence list

  1. Compare your specific circumstances with each provision of Article 1079 of the Civil Code to determine the appropriate legal course of action.
  2. Systematically organize evidence based on the selected scenario: for separation cases, prepare sub-lease agreements, proof of residence registration, and chat records; for domestic violence cases, prepare police reports, warning letters, and medical records along with photographs of injuries; for cases involving harmful habits, prepare records of administrative penalties and witness testimonies.
  3. At the time of filing the lawsuit, simultaneously apply for property preservation and evidence-gathering measures to prevent the opposing party from transferring assets.
  4. In the first instance, if divorce is not granted, immediately separate after the judgment takes effect and preserve evidence of the date on which the separation began.
  5. After one year of separation, a second divorce lawsuit is filed, with new evidence of separation submitted, requesting the court to grant the divorce in accordance with the law.

6. Common misconceptions

Misconception 1: Living separately for two years automatically results in divorce.Correct answer: Two years of separate living is only one of the statutory grounds for divorce; the marriage is not automatically dissolved and must still be terminated through litigation or a mutual agreement.

Myth 2: Adultery automatically results in divorce. Positive solution: general derailment (not to the extent of cohabitation with others) does not belong to the legal case of departure, the court may not be sentenced for the first time, but can be used as "feelings have indeed broken down" evidence and other fault liability basis.

Myth 3: A second divorce lawsuit will definitely result in a divorce.Correct answer: In a second lawsuit where no new circumstances have arisen, the court is still required to examine whether the marital relationship has indeed broken down; only in cases where “a year has passed since the previous divorce was denied and the parties continue to live separately” does the law stipulate that a divorce should be granted.

Myth 4: Separation simply means not living together; staying at one’s mother’s house for a few days also counts.Correct answer: Legal separation requires that the separation be due to marital discord, involve the spouses residing in separate dwellings on a continuous basis, and that they refrain from fulfilling their marital obligations. Temporary separate living arrangements or even sleeping in different rooms within the same house do not constitute legal separation.

Myth 5: If the other party does not consent to the divorce, the court will never grant it.Correct answer: Divorce does not require the other party’s consent; if the marital relationship has indeed broken down and mediation has failed, a divorce may be granted. The three viable paths are: statutory grounds for divorce, sufficient evidence, and a strategic timing approach (file suit again after one year of separation).

Misconception 6: The period of separation prior to the first divorce filing can also be counted toward the “one year of separation following the court’s judgment.” The correct solution: "The divorce is not allowed to be separated for another year after the judgment comes into effect". The previous separation time cannot be mixed in; those who have been separated for two years due to emotional discord before the first lawsuit should be claimed as a legal situation in the first lawsuit.

Myth 7: It’s enough if the other party verbally admits that the relationship isn’t going well.Correct answer: The breakdown of the marital relationship is a legal determination that must be supported by objective evidence; verbal admissions have limited stability and probative value, and evidence should still be organized around facts such as separation, conflicts, and fault.

7. Frequently Asked Questions

Does living apart for two years automatically result in a divorce?

Not necessarily. Divorce may be granted only on the grounds of incompatibility, continuous separation for at least two years, and with supporting evidence; even if the parties have been separated for many years, a divorce may not be granted if the evidence is insufficient (as in the case of Yin v. Guan).

How long after a divorce is denied can one file suit again?

If there are no new circumstances or grounds, another lawsuit may be filed only after six months; if one year has elapsed since the judgment became effective while the parties have been living separately, the court shall grant the divorce upon re‑filing—this is the most certain path.

What evidence should be prepared for domestic violence cases?

Police receipt of the report, police dispatch records, warning letter, photographs and forensic assessment of injuries, hospital medical records, community mediation records, and the court’s ruling on a personal protection order; seek medical attention promptly after reporting the incident and retain all written documentation.

During the period of separation, we reconciled briefly—how is that time counted?

The period of separation starts to be calculated anew. Therefore, after separating, avoid hastily “trying to reconcile” or moving back in together—unless there is a genuine intention to repair the relationship; otherwise, all previous efforts will be in vain.

The other party gambles and uses drugs but refuses to admit it—how can I gather evidence?

Obtain the public security organ’s records of administrative penalties and community-based drug rehabilitation, collect communication records documenting family members’Dissuade efforts, and gather witness testimonies to demonstrate the persistence of the harmful habit and repeated failure to reform despite admonishment.

8. Practical insights from lawyers

Many people get stuck at the first step of divorce because they worry: “If the other party absolutely refuses, will I be unable to get divorced?” The answer is no.Legal divorce is not conditional on the consent of the other party. The key is whether you can put "the relationship has indeed broken" into one of the five legal situations and support it with a chain of evidence. The real difficulty in practice is not to file a lawsuit, but to choose the right path: due to emotional discord and continuous separation for two years, the other party has domestic violence or bad habits, bigamy or cohabitation, etc., the evidence in each case is completely different. It is much more effective to nail the most favorable one first and then organize materials around it systematically than to generally say "cannot pass.

If the first prosecution is not sentenced to leave, it does not mean losing. This is the norm in most cases. What really matters is the action after the judgment comes into effect-immediately enter the state of separation, and fix the initial evidence of separation (rental contract, residence registration and chat records should all reflect "separation due to emotional discord"). Never live together for a short time because of "try to make up", otherwise the separation time will be counted again, and the waiting ahead will all return to zero. The law gives a retreat with the highest certainty: if the two parties are separated for another year after the divorce is not allowed, and if they sue again, the court shall judge the divorce. Using this rule as a timer is more reliable than repeatedly negotiating "do you agree or disagree" with the other party.

While the litigation proceeds, negotiations need not be halted. The other party drags on and often has its own abacus: afraid of property division, afraid of affecting children, or simply want to use "not to leave" in exchange for conditions. See what he really cares about, and the plan should have an upper limit and a lower limit-for example, if he can get custody in mediation, he will give in to some of his property. if the other party only wants to delay, he will clearly inform him that "the court will judge him to leave as if he has delayed for one year, while the joint repayment and provident fund are still accumulating during this year, and the pool that can be divided will only be larger". Judges have a lot of room for discretion in family cases. Mediation runs through the whole process. Leave a good negotiation hole and often reach the desired result faster than hard judgment.

It is not a slogan but a combination of five legal situations and the chain of evidence. If you want to judge a divorce, you should choose the right situation and the thick evidence. There is no need to despair if you don't judge the divorce for the first time-after a six-month waiting period, the attack will be reorganized with the rule of "one year of separation before filing a lawsuit". The law has already left an exit for those trapped in marriage. Remember the enlightenment of Ningbo's case: the starting point of separation, continuity and the reasons for emotional discord should be left from the first day.