Insights

Ningbo military marriage divorced soldiers one party does not agree to do

Ningbo Author：LuXu WANG

Military marriage is not "inseparable", but the law does provide an additional layer of protection to active military personnel: when a non-military party files for divorce, in principle, it is necessary to obtain the consent of the military spouse, unless the military party has committed a major fault. Understand this rule before you know which level you are stuck in.

The Legal Basis for the Protection of 1. Military Marriage

the "Civil Code" stipulates that the spouse of an active-duty soldier who requests a divorce shall obtain the consent of the soldier, except where the soldier has a major fault. This article is the special protection of the marriage relationship of military personnel by legislation. It is applicable to "active military personnel" and is no longer applicable after retirement or demobilization.

It protects "active duty" soldiers.

Servicemen on active duty refer to those who are serving in the People's Liberation Army or the People's Armed Police Force and have military status. Civilian cadres and cadets with military status are usually also included; those who have been transferred or discharged from the military are not included. Whether the clause is activated can only be determined by confirming whether the other party is still in active service.

What is included in the 2. "gross fault"?

If the military party has made a serious mistake, the non-military party may divorce without its consent. Major faults usually refer to bigamy or cohabitation with others, domestic violence, gambling and drug abuse, and other bad habits that seriously hurt the feelings of the couple. Ordinary personality is not compatible, cold violence in different places does not necessarily constitute.

Fault evidence to be solid

the claim of major fault requires the support of corresponding alarm records, disposition decisions, chat evidence, witness testimony, etc. Just "heard" or emotional accusations, it is difficult for the court to find a major fault, it is impossible to bypass the "consent" requirements.

How 3. Non-Military Parties Advance

if the military side has no major fault and does not agree, and the non-military side simply sues, the court will usually mediate first and tend to maintain the stability of military marriage. A more realistic path at this point is to continue to collect evidence of emotional breakdown, work through the force organization, or make claims after the legal breakdown situation is met.

Don't make the mistake of "completely inseparable"

military marriage protection is not the same as prohibiting divorce. With the consent of the military, the active prosecution of the military, or the major fault of the military, the three roads can lead to divorce. It is more practical to transform the anxiety of "cannot be separated" into a judgment of "which way to go.

4. military prosecution is not restricted

what needs to be clarified is that the restriction is that "consent is required for a non-military spouse to unilaterally request a divorce". If a military spouse files a divorce as a plaintiff, it is not bound by the consent rule and is handled according to the general divorce procedure.

The Boundary of 5. Fault Evidence

in cases involving military marriage, it is claimed that the military party must rely on legally obtained evidence, such as self-confessed written materials, photos in public occasions, and handling opinions issued by relevant departments. Any information related to the location, establishment and mission of the army shall not be used as the object of evidence collection. Cross-border evidence collection is not only invalid, but may also touch the red line of confidentiality.

Confidential information cannot be touched.

The evidence collection should be carried out around the marriage relationship itself, avoiding shooting camps and probing posts. If it is really necessary, it shall be obtained from the unit to which it belongs through the court in accordance with the law.

What are the substantive changes in the procedure after the 6. of a major fault determination

the most immediate change is that the consent of the military side is no longer required. The legislative intention of military marriage protection is to ensure that active servicemen perform their duties. Once they have a legal major fault, this special protection will be withdrawn. The case will return to the trial logic of ordinary divorce proceedings, and the court will judge according to whether the feelings have indeed broken down.

The second change is reflected in the division of property and damages. After the fault plot is determined, the innocent party can claim compensation for divorce damages at the same time, and the compensation amount for similar cases is mostly in the range of 5000 yuan to 50000 yuan. In the division of common property, the court may also give a 10% or so tilt to the innocent party, both of which can be put forward together.

7. case proof

in practice, the non-military party sued for divorce, and the active military spouse had no major fault and clearly disagreed. The court first mediated and ruled that the divorce was not allowed; after the judgment took effect for 6 months, the plaintiff sued again, combined with the fact that the two parties continued to separate during the period. The divorce was granted in the second lawsuit, and the overall period was usually

12to 18 months.

In practice, the non-military party proved that the military spouse had been living with others for more than 6 months and had domestic violence, and submitted two alarm receipts and warnings. The court found that the major fault was established, and no longer required the consent of the military party to grant divorce according to law, and made a 10% preference for the innocent party in the division of property.

8. Risk Alert

  • the general contradiction is regarded as a "major fault", and the dismissal of the lawsuit is also involved in the cost of litigation.
  • It was not confirmed whether the other party was still on active duty, misused or misjudged the terms of the military marriage.
  • Verbal statements alone have no evidence of fault and cannot bypass the consent requirement.
  • Neglect through the force organization communication, miss coordination space.
  • Eager to leave ignore children and property arrangements, win status lose interest.

9. FAQ

is military marriage absolutely inseparable?

It's not. Divorce is allowed with the consent of the military, the military's initiative to sue, or the military's major fault can be proved; the restriction is only for cases where the non-military party unilaterally requests and the military has no major fault.

What are major military mistakes?

Bigamy or cohabitation with others, domestic violence, gambling and drug abuse and other bad habits do not change after repeated education, as well as other serious injury to the feelings of husband and wife; ordinary personality does not necessarily constitute.

Is the other party still protected after retiring?

Generally not subject. The terms of military marriage are for active military personnel, who have been transferred to military employment or discharged from the military, and are dealt with under the ordinary divorce rules.

Is it restricted for the military to sue for divorce?

Without being restricted by the rule of consent, if the party of military personnel sues as the plaintiff, it shall be dealt with according to the general procedure.

For the first time, how long can I sue again?

Six months after the sentence has entered into force, it may be prosecuted again. If the two parties continue to separate during the period and can submit evidence of separation such as rental contract, residence certificate, communication record, etc., the assurance of separation in the second lawsuit will be significantly improved, and the overall cycle is usually

12to 18 months.

Practical Experience of 10. Lawyers

military marriage is not inseparable, but the law does give active servicemen an extra layer of protection: if a non-serviceman proposes a divorce, he must obtain the consent of the serviceman in principle, unless the serviceman has made a major mistake. So when the military does not agree to divorce, you have to first judge whether you can fall into the major fault exception-it usually points to bigamy or cohabitation with others, domestic violence, abandonment of family members and so on. If it is just a personality disagreement and a long-term separation, it does not of course constitute an exception. At this time, we must be prepared to fight a protracted war, rather than expecting a single prosecution to solve it.

Take the road of exception, the evidence is the gate of life. Domestic violence should have an alarm receipt, medical records and photos. The fact of cohabitation in extramarital relations should have traces of continuous common life. Abandonment should have corresponding factual materials. This evidence is used not only to demonstrate the existence of a material fault, but also to support claims for damages, division of property and custody. What needs to be reminded is that evidence collection must be carried out within the legal scope, and materials obtained by illegal means may not be adopted, but put themselves at a disadvantage.

There is another point that is easily overlooked in the procedure: if the military party files for divorce, it is not subject to the above restrictions. Therefore, for the non-military party, instead of being deadlocked on "whether or not to leave", it is better to focus on evidence and practical interests, and if necessary, use mediation, people's mediation or related channels to communicate with each other. When negotiating, you should also grasp the factors that the other party cares about-discipline, reputation, and transfer arrangements-and designing conditions accordingly is often more effective than being unilaterally tough. It is more pragmatic to put your energy where you can move the situation forward than to struggle over and over again.