Insights

Ningbo spouse is restricted behavior ability can divorce

Ningbo Author：LuXu WANG

If the other half becomes a person with limited capacity for civil conduct due to illness or accident, can they divorce? This type of divorce cannot go through an agreement, and must be sued by the guardian, with special arrangements in procedure.

1. what is limiting capacity

A person with limited capacity for civil conduct refers to an adult who cannot fully identify his own behavior due to intelligence, mental health and other reasons. After being declared by legal procedures, his implementation of civil legal acts must be represented or agreed by his guardian.

Distinguish from incapacity

A person with restricted capacity may engage in acts appropriate to his or her intellectual and mental state, provided that important matters (such as divorce) are represented by a guardian. Incapacitated persons are more thoroughly represented by guardians.

2. cannot divorce.

Agreed divorce requires both parties to be willing and able to express their true meaning. It is difficult for persons with limited capacity to make an independent intention to divorce. Marriage registration authorities generally do not accept such agreed divorce and must take the path of litigation.

Why litigation is necessary

divorce is a major status punishment, and it is necessary to ensure that the interests of the parties are properly represented. Acting by the guardian, not only to protect the person with limited capacity, but also to allow the other party's request for dissolution of marriage to have a legal exit.

3. must be represented by guardian

divorce proceedings shall be initiated or answered by the guardian of the person with limited capacity as legal representative. Guardians must first be determined by special procedures in accordance with the law, without the right to act as agents.

1. Handling of conflicts of interest by guardians

if the spouse is the guardian himself and the relative of the other party's divorce, there is a conflict of interest, and other close relatives or relevant organizations may be appointed as guardians for the person with limited capacity to protect his or her interests.

2. What to do when the guardian has a conflict of interest

the spouse who is both the plaintiff and the legal guardian is a typical conflict of interest and cannot represent himself. The correct way is for the parents, adult children or other close relatives of the ward to apply for the change of guardian, or it can be designated by the residents' committee, villagers' committee or civil affairs department. After the change is completed, the divorce trial will be entered, otherwise the procedure may be found to have major defects.

Special protection in 4. litigation

the court will examine whether the divorce is really in line with the interests of the person with limited capacity and make proper arrangements for life, medical treatment and guardianship, rather than simply ruling a divorce. In Ningbo, Yuyao Court has set up the province's first professional family trial collegiate panel and implemented a family investigator mechanism. The family investigators of Ninghai Court have issued a total of 466 investigation reports. The court can use family investigators to understand the guardian's life, medical treatment and care conditions on the spot before making a judgment.

The scale difference between mediation and judgment

in divorce cases involving persons with limited capacity, mediation is still a necessary procedure, but the mediation agreement must be signed by the guardian and reviewed by the court whether it harms the interests of the ward. Compared with ordinary cases, the court reviews the property division scheme more strictly, and the scheme that obviously deviates from fairness may not be confirmed even if both parties agree. In practice, the share of the custodial party is usually not less than 50%.

Three procedural gates for divorce cases of persons with limited capacity for 5..

The first pass is the identification of capacity. It is necessary for the interested party to apply to the court and make a declaration according to the special procedure after judicial appraisal. This step usually takes 1 to 3 months. If the divorce is directly sued without declaration, the court will generally suspend the trial and wait for the determination result.

The second pass is the determination and change of the guardian, and the third pass is the substantive protection of the rights and interests of the ward. Before the judgment, the court will focus on examining whether the residence, medical treatment, daily care and financial resources of the guardian after divorce are implemented. The division of property is usually inclined to it. In practice, the guardian's share is generally not less than 50%, and financial assistance may be awarded separately.

6. case proof

in practice, the spouse was declared as a person with limited capacity for civil conduct due to mental illness according to special procedures, and his parents were appointed as guardians to act on his behalf. The court decided to grant divorce after finding out that the relationship between the two parties had indeed broken down and implementing the future living arrangement of the ward and the monthly living security of not less than 30

00yuan.

In practice, the party who filed for divorce is the spouse and guardian of the ward, and there is an obvious conflict of interest. The court first changes the guardian according to the application, and the close relatives of the ward are the guardians before the trial, thus avoiding the procedural defects of acting for themselves. Finally, the divorce is decided on the premise of ensuring that the property share of the ward is not less than 50%.

7. Risk Alert

  • attempts to divorce by agreement are not accepted by the registration authority.
  • If the guardian is not determined, the agency will be invalid.
  • Spouse and guardian conflicts of interest were not addressed.
  • Ignore medical arrangements for the ward's life.
  • Direct assertion of limitation of capacity without proclamation.

8. FAQ

can a person with limited capacity agree to divorce?

Can't. Divorce needs to be represented by the guardian through litigation, and the registration authority generally does not accept divorce by agreement.

Who's representing him in a divorce case?

The guardian determined by him in accordance with the law shall be the legal representative; the spouse and guardian shall be appointed in case of conflict of interest.

Do you want to declare limited capacity first?

In general, special procedures are required to declare and determine the guardian in order to legally represent major affairs.

Will the court decide to leave directly?

It will examine whether it is in their interests and make appropriate arrangements for guardianship, living and medical care.

The spouse is a person with limited capacity, can divorce by agreement?

Can't. Agreed divorce requires both parties to have full civil capacity and go to the marriage registration authority in person. The person with limited capacity cannot effectively express the complete meaning of divorce, and can only be resolved through litigation, and his guardian will participate in the litigation.

Do you need to make a declaration of capacity first?

usually needed. Without a court declaration, the other party's capacity status is in a state of uncertainty, and the court will generally require a determination through special procedures. The procedure requires judicial authentication and takes 1 to 3 months. It is recommended to start it before or at the same time.

Practical Experience of 9. Lawyers

the spouse becomes a person with limited capacity for civil conduct due to illness or accident. The most common confusion for parties who want to divorce is whether they can agree to leave. The answer is no: divorce by agreement requires both parties to express their intention voluntarily and truly. It is difficult for people with limited capacity to express their intention to divorce independently. Marriage registration authorities generally do not accept it and can only take the path of litigation. This is not to deliberately set up obstacles, but to protect the interests of the disadvantaged party. Therefore, the parties should adjust their expectations early and focus on litigation preparations, instead of repeatedly hitting a wall at the registration authority.

The key procedural issue in the proceedings is the guardian. Divorce proceedings need to be attended by the guardian of the person with limited capacity as a legal representative. The guardian must first be determined by legal procedures and has no right to act without confirmation. If the spouse is both the guardian and the opposite party of the divorce, there is a typical conflict of interest and he cannot represent himself. At this time, the guardian's parents, adult children or other close relatives should apply to change the guardian, or be designated by the neighborhood committee, village committee or civil affairs department, reenter the divorce trial. If the program is rushed forward without being straightened out, it is easy to be found to be defective and reworked.

Judging from the pace of practice, such cases often have to go through the pre-procedures of determining the ability to act and determining the guardian, which takes longer than ordinary divorce cases, and the psychological and time costs of the parties have to be prepared in advance. At the same time, we should remind ourselves that the court will examine whether divorce is really in line with the interests of people with limited capacity. Therefore, in terms of property division and future life security, taking the initiative to put forward reasonable care arrangements is often more conducive to the progress of the case than blindly striving for more property, and is more in line with human feelings and legal principles. It is the real feasible path for this kind of divorce to stabilize the procedure and ensure the guarantee.