Insights

How to cancel Ningbo's coerced marriage

Ningbo Author：LuXu WANG

is the marriage registered under coercion, is this marriage valid? The conclusion starts with: the marriage under coercion is not automatically invalid, but can be annulled-the coerced party must apply to the people's court for annulment within one year from the date of termination of the coercive act. The right of annulment within the time limit is extinguished, and the marriage becomes valid and can only go through the divorce procedure. In cases where personal freedom has been unlawfully restricted, the period shall be calculated from the date on which such restriction is lifted. This paper, in conjunction with the Civil Code of Marriage and Family, clarifies the elements of revocation, period calculation, proof and procedure of coercive marriage.

1. First, clarify the nature: it is revocable, not automatically invalid.

Many people mistakenly believe that a marriage entered into under duress is automatically void; in fact, the Civil Code categorizes defects in the validity of marriage into two tiers. Article 1051 of the Civil Code stipulates the grounds for an invalid marriage: bigamy; a prohibited kinship relationship; and failure to reach the statutory marriage age. An invalid marriage is void ab initio, and interested parties may assert it in accordance with the law, without being subject to the one-year limitation period. Article 1052 stipulates that a marriage can be revoked: if the marriage is coerced, the coerced party may request the people's court to cancel the marriage; if the marriage is canceled, it shall be made within one year from the date of termination of the coercive act; the person whose personal freedom is illegally restricted If the party requests the cancellation of the marriage, it shall be filed within one year from the date of restoration of personal freedom. The difference between the two is that the invalid marriage is not valid from the beginning, there is no period of exclusion, the revocable marriage is in a "valid survival" state before the revocation, only the coerced party can request within the statutory period, after the court decision to cancel from the beginning, the parties do not have the rights and obligations of the husband and wife from the beginning.

Two points need to be specially pointed out: First, according to Article 1052 of the Civil Code, there is only one way to revoke the coerced marriage-to sue the people's court. The system of Article 11 of the original "Marriage Law" that "the coerced party can request the marriage registration authority or the people's court to cancel the marriage" has been abolished. The marriage registration authority no longer accepts applications for cancellation of the marriage, and the parties can only go through litigation procedures. Second, Article 1053 establishes another category of revocable circumstances: one party suffers from a serious illness and shall truthfully inform the other party before the marriage is registered; if the other party fails to do so, the other party may request the cancellation of the marriage within one year from the date when it knows or should know the cause of the cancellation-the starting point of the period of such cancellation is the "date when it knows or should know", which is different from the "date when the coercive act terminates, the two types of cause of action cannot be mixed.

How to calculate 2. revocation requirements and "one-year period" The coercion mentioned in Article 1052 of

refers to that the perpetrator threatens to cause damage to the life, body, health, reputation and property of the other party or its close relatives, forcing the other party to marry against his true will. It is divided into four elements: first, the existence of coercive behavior-threatening to damage, the content of the threat must be specific and realistic, to the extent of enough to make people fear, general "emotional" "urging marriage pressure" does not constitute; second, coercion directed at the legal interests of the person or his close relatives, including life, body, health, reputation, property, etc; the third is the causal relationship-the registration of marriage is indeed against the true will due to fear of coercion, rather than voluntary, and there is a direct causal relationship between coercion and marriage. The nature of the period is the period of exclusion, and the suspension or interruption of the statute of limitations is not applicable. If it has not been exercised for more than one year, the right of revocation shall be extinguished, and the marriage shall be deemed valid from then on, and can only be dissolved according to divorce procedures. If personal freedom is illegally restricted, it shall be submitted within one year from the date of restoration of personal freedom-the period of detention and foot restraint shall not be counted, but the "personal freedom has been restricted" shall be fully proved (alarm record, rescue process, testimony of relatives and friends, etc.).

3. Scenario Breakdown: Three Typical Scenarios

situation one: close relatives force registration with violence and threat. This is often seen in family arrangements characterized by “forced marriage” or “arranged marriage,” where the coerced party typically endures the situation in silence for a long time after the wedding. Rights protection path: the prosecution within one year after the termination of coercion (e. g. fleeing the family, moving out of the common residence, breaking with the pressure), the core of the proof is the causal chain between coercion and registration.

Case 2: Forced to get married during the period of illegal restriction of personal freedom. During the period from the date of the restoration of freedom, the years before the restoration of freedom shall not be counted as one year.

Case 3: Soft coercion such as economic coercion and reputation threat. Threats such as damaging reputation, spreading privacy and cutting off economic sources may also constitute coercion, but it is more difficult to prove, which needs to be comprehensively determined in combination with the content of threatening communication and the actual pressure behavior of the other party. The court will strictly grasp the "emotional pressure" with minor circumstances that may not reach the degree of coercion in the legal sense.

4. Scenario Exercise (Example, Fictional)

Under the threat of violence from her family, Chen Mou, a young woman in Ningbo, registered her marriage with a man she had never known before. After marriage, she did not dare to speak out for a long time. Two years later, she took advantage of her family's relaxation to move out of the common residence and called the police station, leaving the alarm record and threatening chat record. Then she sued the court to cancel the marriage within two months after the termination of coercion. If the court finds that the registered marriage is indeed coerced by close relatives and the prosecution does not exceed one year from the date of termination of the coercion, it will decide to cancel the marriage in accordance with the law-the marriage is invalid from the beginning, the two parties do not have a relationship of rights and obligations between husband and wife, and there is no need to go through the divorce procedure. On the other hand, if Chen Mou waits until one year after the termination of coercion before suing, the right of revocation has been eliminated, the court can only reject his request for revocation, and the marriage can only be dissolved through divorce. The deduction shows that the winner or loser of coercion revocation is the six words "fact + one year period"-the fact depends on the chain of evidence, and the period depends on the timing of the prosecution, both of which are indispensable.

List of 5. evidence and materials

  1. Marriage certificate, identification certificates of both parties-basic materials for filing a case;
  2. Alarm records, case acceptance receipts, injury photographs, and medical records—evidence substantiating the facts of violence, threats, and deprivation of personal freedom;
  3. Threatening chat record, short message and call recording -- keep the original carrier, besides the screenshot, it is suggested to save the original equipment synchronously or handle notarization, so as to prevent the defects of proof;
  4. Witness testimony—family members, neighbors, colleagues, and others with relevant knowledge may apply to appear in court to testify;
  5. Proof of not exceeding the period-such as removal time, proof of restoration of freedom, stating that the prosecution is within one year.

6. Jurisdiction, Procedure and Duration

The lawsuit of annulment of marriage is a marriage and family dispute, which is under the jurisdiction of the basic people's court of the place where the defendant has his domicile; if the place of the defendant's domicile is inconsistent with his habitual residence, it shall be under the jurisdiction of the people's court of his habitual residence. Prosecutions can be filed through the "People's Court Online Service" mini-program or the Zhejiang Court Online, or they can be filed at the court's filing window with jurisdiction. If the court finds that the facts of coercion are established after trial, the marriage shall be annulled by judgment, and the marriage shall be null and void from the beginning; after the annulment judgment takes effect, the two parties may negotiate or litigate the issue of property and children during the period of cohabitation. Special attention: revocation and divorce are two completely different procedures-revocation settlement "this marriage is not established from the beginning" and divorce settlement "dissolution of legal marriage". the legal consequences of the two (invalidation from the beginning and dissolution from the date of dissolution) are very different, and the cause of action cannot be mixed. Wrong the revocation lawsuit is written as a divorce lawsuit, or the divorce lawsuit is packaged as a revocation lawsuit, all will affect the filing, proof and outcome.

The choice and procedure connection of 7. revocation and divorce and invalidation

The choice of legal procedure in cases of coerced marriage can determine the outcome. Path 1 (revocation): the lawsuit is revoked within one year from the date of termination of coercion. after the judgment, the marriage is invalid from the beginning, and both parties do not have the rights and obligations of husband and wife from the beginning-note that there is no "compensation for divorce damages" after revocation. since the marriage has not been established from the beginning, the basis of compensation (fault in legal marriage relationship) will disappear. However, during cohabitation, it may be claimed separately under the rules of infringement, unjust enrichment, etc. Path 2 (Divorce): If the cancellation right is eliminated for more than one year, or the coerced party chooses to maintain the marriage and the relationship breaks down, it can only be dissolved according to the divorce procedure. At this time, damages can be claimed according to Article 1091 of the Civil Code-the relief content of cancellation and divorce is different for the same unfortunate marriage, and the path selection must be comprehensively judged in combination with the coercion evidence, the period and the birth of children.

There are three key points of procedural convergence: first, the right of revocation belongs exclusively to the coerced party, and heirs and close relatives cannot exercise it on their behalf. If the coerced marriage meets the invalid conditions of Article 1051 (such as bigamy, close relatives and underage marriage), the invalid lawsuit can be changed, which is not limited by one year; second, if the other party sues for divorce during the cancellation period, the two cases may coexist, the judge should explain the fact of coercion and request to deal with the lawsuit of revocation first, and the lawsuit of divorce will naturally lose its foundation after the revocation judgment comes into effect. Third, ordinary procedures are applicable to the revocation of the lawsuit. The first instance trial is limited to six months. Those involved in appraisal and investigation can be extended according to law-a margin should be set aside for the calculation of the period and the advancement of the trial limit.

Disposition of Property and Children after 8. Revocation: Application of Section 1054

After the marriage is revoked, it is not "a hundred things". The property and children are dealt with according to Article 1054 of the Civil Code: invalid or revoked marriage has no legal binding force from the beginning, and the parties do not have the rights and obligations of husband and wife; The property acquired during cohabitation shall be dealt with by the parties through agreement; If the agreement fails, the people's court shall make a judgment according to the principle of caring for the innocent party. There are three main points: first, after the revocation, the two parties are in a "cohabitation relationship" instead of a "husband and wife relationship", and the property shall be treated as a general common property, and the rules of common property and debts of husband and wife shall not apply-the debts under one party's name shall be borne by him personally in principle, but the property jointly purchased during the cohabitation shall be divided according to the proportion of capital contribution, care can be taken in the division of cohabitation property; third, the rights of children born are not affected-the rights and obligations between parents and children exist in accordance with the law, maintenance and visitation rights are dealt with in accordance with the rules for children born out of wedlock, and children can still claim the right to support and inherit. The coerced party should consider the "revocation of judgment + list of cohabitation property + arrangement for children" as a whole and solve the problem together, so as to avoid a second round of lawsuits for property and children after revocation.

9. Frequently Asked Questions

is coerced to marry, will the marriage be automatically invalid?

No. A marriage of coercion is an irrevocable marriage, which must be rescinded by the coerced party to the court within the statutory period, and shall not be null and void from the beginning until the judgment is rescinded; if the request is not made or overdue, the marriage shall continue to be valid.

From what day does the one-year period of revocation begin?

It is generally counted from the date of termination of the coercive act; if the personal freedom is illegally restricted, it is counted from the date of restoration of personal freedom. This period is a statutory limitation period; it does not suspend, interrupt, or extend, and the right of rescission shall be extinguished upon its expiration.

Can it be revoked after more than one year?

No. After the right of revocation is eliminated, the marriage is considered valid, and the only way to dissolve it is to go through the divorce procedure; if there is domestic violence, abuse, etc., other rights such as divorce damages can be claimed at the same time.

How can one prove "being coerced"?

The alarm records, injury photos, threatening chat records and call recordings, witness testimonies and so on are mutually corroborated to form a causal evidence chain of "coercive behavior-fear psychology-registration against one's will"; if the coercive facts are difficult to find out, one can apply to the court to entrust a family investigator to investigate.

Can the concealment of major diseases before marriage be revoked by coercion?

can not be treated as coercion, but according to article 1053, on the grounds of "concealing major diseases", the marriage can be rescinded within one year from the date of knowing or should know -- two kinds of rescinding reasons and two kinds of periods should be counted, and the correct cause of action should be selected according to the facts.

10. Practical Legal Insights

is forced to register marriage, we must first make clear the nature: this is not an invalid marriage of course, but a revocable marriage. The coerced party must apply to the court for revocation within one year from the date of termination of the coercive act, the right of revocation shall be extinguished within the time limit, the marriage shall become valid, and then only divorce proceedings shall be taken; if personal freedom has been illegally restricted, the period of this year shall be counted from the date of restoration of personal freedom. The starting point for this period is very special, not from the date of marriage registration, nor from the day you "figured it out". You must first set it right.

The success or failure of this kind of cases often depends on the timing. Once the coercion is terminated, it should be started as soon as possible, and it should not be delayed until the evidence is lost and the witness is forgotten. Evidence was gathered concerning two matters: the fact of the coercion itself, and the time when the coercion ceased. Threatening and intimidating chat records, audio recordings, text messages, statements from insiders, alarm and police records, injury materials caused by coercion, and relevant credentials for restricting personal freedom can all be used. Only by meticulously matching the starting point of the period with each piece of evidence can one establish a solid footing during case filing and trial.

The legal consequences of the three paths of revocation, divorce and nullification of marriage are not the same. First calculate clearly and then choose. Don't decide the direction according to your mood. Even after the annulment, if property, dowry, or child-related matters are still involved, separate rules apply, and these must be addressed as part of an overall plan; one should not assume that canceling the marriage registration automatically resolves all issues. During the negotiation, the other party often uses such statements as "it is not good for anyone to make a big noise" to persuade you to stay private. At this time, you should firmly hold the period and evidence in your own hands and exchange reasonable concessions with a sense of urgency in time, instead of being delayed by the other party.

The key of marriage under coercion is "fact plus one year period": fixed alarm records, communication evidence and witnesses. Remember that the period is one year from the termination of coercion (or the freedom of the restricted person is restored), and the prosecution is timely. Do not make up the fact of coercion, and do not delay the expiration of the period to protect the rights-the right to cancel overdue will be eliminated, and the path of safeguarding rights will be downgraded from "revocation" to "divorce".