Ningbo's First Prosecution Not Sentenced How Long Can It Resue Again
The first prosecution was sentenced to "no divorce", and many people thought it would take a long time. In fact, the law now provides a clear channel: if you live apart for one year and then sue again, you should be sentenced to divorce. The difficulty lies only in proving that the "full year" is solid.
Common Reasons for First-Time 1. Not Sentencing
in the first prosecution, if the other party does not agree and there is no sufficient evidence of emotional breakdown, the court tends to give both parties a chance to repair and forbid divorce. This is not "never leave", but prompts you to go through the second half of the legal procedure.
Don't make repeated complaints without new evidence.
In the absence of any new facts, new evidence of repeated prosecution in a short period of time, the court may still maintain the indecision. The effective way is to start separation and fix the evidence immediately after the judgment, paving the way for further litigation.
Legal passage for 2. to be separated for one year
the "Civil Code" clarifies that after the court has ruled that the divorce is not allowed, the two parties have been separated for another year, and one party files a divorce lawsuit again, the divorce shall be granted. This is the most tangible export of the law to the delayed party.
3. the meaning of "should be divorced"
"Should" means that the court must, in principle, make a decision and no longer "look again" at its discretion ". As long as the fact of separation for one year is clear, the expectation of another lawsuit is stable.
How to save 4. evidence.
From the day of the judgment, keep the rental contract, the water and electricity property living alone, the address change, and the chat record stating "separation. The evidence should cover the whole year continuously, and the break will weaken the determination of "full year. According to Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence has many defects in proof and is difficult to be accepted. The separation certificate is recommended to be based on objective documents such as rental contracts and water and electricity payment forms, and chat records are kept in the original carrier.
1. Don't take "Cold War" as "separation"
living in the same house, just not talking, is difficult to be identified as legal separation. True separation is to live separately and separately, and it is best to have external traces to prove it.
2. The materials for the second prosecution should be different from those for the first time.
The second prosecution is most taboo to hand in the first material as it is. The effective approach is to separate the new facts that occurred after the first judgment: the continuous record of separation, the other party's refusal to communicate, the independent water and electricity and property payment, and the proof of who actually cared for the children. The first judgment itself is also the key evidence to prove that the contradiction has been judicially confirmed and has not been resolved. The old and new materials are arranged according to the time axis, and it is easier to form the conclusion that the feelings have indeed broken down when the collegiate.
Analysis of the 5. Six-month Limit
it should be noted that if there are no new circumstances within six months after the divorce is not allowed, the court will not accept the lawsuit. However, the "one year after separation" usually has passed the time limit and is supported by new facts (continuous separation) and is not troubled by this restriction.
How to calculate the 6. six months and from which day
the starting point for six months is not the date of the hearing or the date of receipt of the judgement, but the date of entry into force of the judgement. If there is no appeal within 15 days after the judgment of first instance is served on both parties, it shall take effect on the 16th day, and six months shall start from the day after it takes effect. If the other party files an appeal, the effective date shall be the date on which the judgment of the second instance is served, and the overall time line shall be postponed by 2-4 months accordingly.
Withdrawal is subject to the same restriction as treatment by withdrawal. If the plaintiff withdraws the lawsuit on his own initiative, or refuses to appear in court without justifiable reasons after being summoned by subpoena, it will take six months before he can sue again, which is often ignored. There are no restrictions on new situations and new reasons. For example, if the other party commits domestic violence, abandonment or cohabitation with others during this period, it is necessary to submit the alarm receipt, injury photos or cohabitation evidence at the same time.
7. case proof
in practice, after the first decision is not allowed to divorce, if the two parties have actually separated for one year and filed a lawsuit again, the court usually decides to divorce according to legal circumstances.
In practice, if the two parties still live in the same house after the judgment is not separated, the court often thinks that separation in the legal sense has not been formed and the condition of separation for 12 months has not been achieved. It is not uncommon for such cases to be denied divorce for the second time, and it will take another 6 months before the third lawsuit can be filed.
In practice, if the divorce is not allowed to be filed again within 6 months after the first judgment, and the evidence of independent residence during the separation period is supplemented, the proportion of divorce granted can reach more than 60%; the reinforcement materials are the most common combination of 12 consecutive months of lease and payment records. The average trial period for such secondary litigation is about 2 to 3 months.
According to the case of Ningbo court's public judgment (included in the corpus of marriage and family affairs), in the divorce dispute between yin mou and Guan mou, one party claimed long-term separation but lacked valid evidence of "emotional discord and separation for two years", and the court ruled that divorce was not allowed. In the divorce dispute between Yan mou and Yu mou (Ningbo Ninghai court), the court granted divorce (the defendant was absent). Whether the evidence of separation is continuous and complete directly determines whether the fact of "separation" can be recognized by Ningbo court.
8. Risk Alert
- if you continue to live together after a sentence of not leaving, it will be difficult to achieve the conditions for one year.
- The evidence of separation was cut off and the continuity was insufficient throughout the year.
- The same room cold war as separation, identified as failure.
- No new evidence short-term entanglement, but was rejected.
- Ignore the six-month acceptance limit and make a trip for nothing.
9. FAQ
how long does it take to wait for the first time without a sentence?
The judgment is not allowed to divorce after separation for one year, should be sentenced to divorce.
Must I be separated for one year?
The statutory "should", in principle, must be judged, no longer discretionary.
How do you prove a year of separation?
Renting, living alone, water and electricity, address change, and chat records stating separation shall cover the whole year continuously.
Does living together without talking count as separation?
difficult to identify. Legal separation to live separately, separate life, there are external traces.
For the first time, if you can't leave, can you sue again in another court?
Changing courts is useless. Jurisdiction is determined by the defendant's domicile or habitual residence, and the six-month limit is aimed at the parties and the same claim and will not disappear by changing courts.
The other party agreed to divorce by agreement in these six months. Is it still necessary to wait?
No need to wait. Six months is only limited to filing a lawsuit in the court. After the two parties have reached an agreement, they can apply to the marriage registration authority at any time. After the 30-day cooling-off period, they can obtain the certificate.
Practical Experience of 10. Lawyers
the first prosecution was sentenced not to divorce. Many people thought that they would have to wait for a long time, and even doubted whether they would never leave. In fact, the law leaves a clear channel: after the sentence is not separated, the two parties have been separated for another year, and if one party sues again, the divorce should be granted. The difficulty is never how long to wait, but to prove the fact that "full year" is solid. Therefore, don't spend your energy on anxiety and complaining, but on leaving certificates and calculating the date clearly. If you are in the right direction, time will not be wasted.
After the judgment, don't get entangled in the same place. You should immediately start separation and leave a certificate from the first day: lease and residence materials, payment records in your own name, change of address, and contents that can reflect the time and place of residence in daily contacts, so as to continuously cover the whole period of time. It is true that many people suffer from separation, but the evidence goes from east to west, and the time is incomplete, so they advocate that they are naturally unstable. There may be other procedural concerns between the two prosecutions, and they should also be judged in the light of the specific circumstances. Don't take it for granted that you can sue again at any time.
Knowing that this passage exists is a card in itself. The other party's constant delay is often gambling that you have no new situation or new evidence. You can clearly let him know that every time time passes, the conditions for reopening the lawsuit will be more mature. It may not be beneficial for him to continue to delay, thus loosening many deadlocks. At the same time, record the changes in property and support during the separation period, and make preparations for the next lawsuit, so as to know fairly well and have materials in hand., Only when you prepare enough materials can your heart be steadfast.