Insights

Ningbo spouse lost two years how to divorce

Ningbo Author：LuXu WANG

When the spouse runs away from home, there is no news at all, and they want to get a divorce but they can't find anyone. The first reaction of many parties is "Everyone is gone, how to get away?" Direct conclusion: Unknown whereabouts does not mean that you can't get away. The law provides two avenues: first, if a person has been missing for two years, one may first apply for a declaration of disappearance and then file for divorce; the court shall grant the divorce. Second, one may bypass the declaration procedure and directly file for divorce; if the court serves the legal documents by public notice and the other party fails to appear after the notice period expires, the court may render a default judgment. The two options differ in terms of time cost and applicable scenarios: the former is suitable when the other party has assets that need to be disposed of, while the latter can be initiated more quickly. This article breaks down the conditions, procedures, time limits, and evidentiary requirements item by item.

1. Path one: First declare the person missing, then file for divorce.

The conditions for declaring a person missing are stipulated in Article 40 of the Civil Code: If a natural person has been missing for two years, any interested party may apply to the people’s court to have that person declared missing. Stakeholders include close relatives such as spouses, parents, and children, as well as other persons who have civil rights and obligations—by virtue of being a spouse, you are precisely the most typical stakeholder.

Key Points and Deadlines of the Procedure:

  1. File an application with the basic-level people’s court at the residence of the missing person (pursuant to the special procedures under the Civil Procedure Law), and submit the application and supporting evidence of the person’s whereabouts being unknown.
  2. After accepting the case, the court shall issue a public notice to locate the missing person. The period for the notice of declaration of disappearance shall be three months; if no information is received upon expiration of the notice period, the court shall render a judgment declaring the person missing.
  3. the legal consequences of the declaration of disappearance: according to article 42 of the civil code, the court appoints a property escrow for the missing person, who will manage the property of the missing person, pay off the debts and collect the creditor's rights -- this solves the problem of "the person is absent and the property is suspended;
  4. Subsequent divorce litigation: Pursuant to Article 1,079, paragraph 4, of the Civil Code, if one party has been declared missing, a divorce suit filed by the other party shall be granted—there is virtually no uncertainty as to the outcome of the judgment.

The "divorce should be granted" of this path is the biggest advantage: there is no need to provide additional evidence of emotional breakdown, as long as the judgment of the declaration of disappearance takes effect, the divorce request will be supported; at the same time, the arrangement of property escrow solves the management and disposal problems of the other party's deposit and real estate simultaneously. The cost is time—more than two years must pass before an application can be filed, followed by a three-month public notice period, and then the divorce proceedings themselves; the entire process typically takes more than two and a half years.

2. Path 2: Direct lawsuit + service by public notice + default judgment

If your sole objective is to dissolve the marriage as quickly as possible and there are no significant assets under the other party’s name that require immediate disposition, you may file for divorce directly without waiting for the two-year period to elapse. Key points of the program:

  1. File the complaint and supporting evidence with the court having jurisdiction (generally the defendant’s domicile or the plaintiff’s domicile; in cases involving unknown whereabouts of the defendant or litigation concerning personal status, jurisdiction may lie with the plaintiff’s domicile).
  2. The court shall first attempt the standard methods of service: direct service, service by mail, service by leaving at the recipient’s residence, and service by entrusting another court. Only when these methods have failed and the whereabouts of the addressee are unknown may service by public notice be applied.
  3. Service by Public Notice: Pursuant to the Civil Procedure Law, service shall be deemed complete thirty days from the date of publication of the notice—please note that the current period for public notice is thirty days.
  4. If the defendant is still not in court after the expiration of the announcement period and there is no justifiable reason, the court will hear the case by default; if it is determined that the relationship has indeed broken down by combining the facts of separation and the testimony of relatives and friends, the divorce will be granted.

The advantage of this approach is its swift initiation: litigation can be commenced after just a few months of being out of contact, without being subject to the “two-year” requirement, and the overall duration is typically shorter than that of the declaration-of-missing-persons route. The "Answers to Several Questions on the Trial of Marriage and Family Cases" (Gao Fa Min -1 [2016] No. 2) of the People's Court of Zhejiang High Court makes it clear that divorce proceedings in which the whereabouts of the defendant are unknown are not premised on the declaration of disappearance-direct prosecution can be promoted. The disadvantage is that the need for separate proof of emotional breakdown, and the other party's property is often only for withdrawal or suspension of processing, can not be immediately realized division-the absent party's share of the court will decide to retain or deposit, to be collected after its appearance.

3. Determination of "missing" and evidence list

No matter which path you take, “missing” must be supported by evidence; this is the common foundation of both approaches. Suggested collection:

  1. The receipt for a missing person or runaway report issued by the public security organ, along with the police response and handling record—constitutes the most compelling official documentary evidence.
  2. Last communication record: the time of the most recent call or WeChat/SMS message message, serving as the starting point for calculating the period of “loss of contact”;
  3. Certificate of circumstances issued by the community (residents’ committee or village committee) of the place of residence: has been away for a long period and whereabouts are unknown;
  4. Testimony from relatives, colleagues, and friends regarding a witness who has been out of contact for an extended period;
  5. Letter of explanation regarding resignation or loss of contact from the employer; social security payment suspension records.
  6. Record of the self-search process: a timeline of posting missing-person notices, filing a police report, and inquiring with family and friends.

The time when the whereabouts are unknown shall be counted from the day when the news is lost, not from the day when the last meeting is met; the time when the whereabouts are unknown during the war shall be counted from the day when the war ends or the whereabouts are determined by the relevant authorities; the time when the whereabouts are unknown due to accidents shall be counted from the day when the incident occurs. In practice, the certificate issued by the public security organ or the record of the last communication is used as the reference point in time.

In addition to the above evidence, the working unit's resignation or loss of contact description, social security and provident fund payment records, long-term no transaction records in bank accounts, can all prove the state of "continuous loss of contact"; in the lawsuit, the court can also apply to the public security organs to inquire about the defendant's household registration and floating population registration information, and fix the clues of his failure to return to justice. It is best if the evidence corroborates each other in terms of timing: the date on the police report receipt, the date of the last communication, and the date the community certificate was issued should form a clear timeline—this timeline is what establishes both the starting point and the continuous duration of the “missing for two years” period.

4. Comparison of the time costs of the two paths

Path 1 (Declaration of disappearance + divorce): It is required that the whereabouts are unknown for two years, the application for announcement for three months, plus the trial limit of divorce proceedings, the whole process is about two and a half to three years; The advantages are that there is no suspense in the judgment of divorce, and the property can be disposed in escrow, which is suitable for the situation that the other party has real estate and deposits need to be realized or transferred.

Path 2 (Direct Prosecution + Public Announcement Service): There is no restriction of two years, the public announcement period is 30 days, and the trial will be heard in absentia after the expiration of the public announcement period; the trial of summary procedure is limited to three months, and the ordinary procedure is six months, and the whole process is usually within one year; it is suitable for the parties who only want to dissolve the marriage as soon as possible and have simple property.

Choice suggestion: if the property is complex (the other party has large deposits, real estate and vehicles), the first priority is to let the property escrow system "catch" the property; if you just want to get away, talk about the property later or deal with it separately, take the second route faster. They can also be used in combination: first file a divorce suit directly, and after the judgment is rendered, handle the unpartitioned property in a separate case.

The Third Option: Declaration of Death (Missing for Four Consecutive Years)

If the spouse's whereabouts have been unknown for four years or two years due to an accident, you can also consider applying for declaration of death-this is a more thorough treatment than declaration of disappearance: according to Article 46 of the Civil Code, if the natural person's whereabouts have been unknown for four years or two years due to an accident, the interested person can apply to the court for declaration of death; if the whereabouts of the citizen are unknown due to an accident and the relevant authorities have proved that it is impossible for the citizen to survive, the two-year period shall not be restricted. Upon a declaration of death, the marital relationship between the deceased and their spouse is terminated as of the date of the declaration (Civil Code, Article 51); inheritance proceedings commence, and all property matters are resolved in a single proceeding, obviating the need for divorce litigation.

But the declaration of death is a double-edged sword, which needs to be chosen carefully: firstly, the application threshold is higher and the procedure is more prudent, and the searching period of the court announcement is one year (three months for those who are proved to be impossible to survive due to accidents); secondly, the declaration of death can be revoked-if the person declared dead reappears or is sure that he is not dead, the declaration of death can be revoked upon application by himself or the interested parties, the marriage relationship is restored on its own from the date of revocation, except where the spouse has remarried or has declared in writing to the marriage registration office that he does not want to restore it; third, the rules for the return of property after revocation are complicated. Therefore, a declaration of death is appropriate in cases where “the spouse has clearly become impossible to return, and there is a desire to bring the matter to a definitive conclusion and handle the inheritance”; if the sole objective is to dissolve the marriage, a declaration of missing person or a direct lawsuit would suffice. Under the path of declaration of disappearance, the court will appoint the property escrow person to manage the deposits and real estate under his name and pay off the debts-the escrow person shall properly manage the missing person's property, the taxes and debts payable during the escrow period shall be paid from the property by the escrow person, and the property losses caused by intentional or gross negligence shall be liable for compensation, which provides a system for the property safety under the path of "declaration of disappearance and departure.

For children who are declared missing or dead, the court usually directly adjudicates to the other party, and the maintenance fee is paid or deposited from the property of the missing party; the rent, interest and other income collected by the property escrow during the management period are still the property of the missing person after deducting the management expenses, waiting for their return or disposal according to law. For the spouse who remains behind, “declare first, then file for divorce” is less a divorce strategy and more a institutional arrangement designed to assume the property-related liabilities of the party who has gone missing.

The “Exhaustion” Procedure Prior to Service by Public Notice and Jurisdictional Reminders

The court will not serve the public announcement at the first time. It must first try the regular methods of direct service, mail service, retained service, entrusted service and so on, but it cannot be completed and it is confirmed that the whereabouts of the addressee are unknown before transferring to the public announcement procedure. The plaintiff can voluntarily submit: the defendant's last domicile information, household registration inquiry results, description of the contact between relatives and work units, and the records he searched for (alarm receipt, searching for you, missed call records). The more complete the materials, the smoother the court's determination that "whereabouts are unknown" and the faster it will enter the announcement procedure. In terms of jurisdiction, if the whereabouts of the defendant are unknown, the plaintiff may file a divorce lawsuit in the basic court of his domicile (habitual residence), without having to go to the defendant's original domicile, thus significantly reducing the filing cost. The litigation fee shall be charged according to the divorce case standard, and the announcement fee shall be paid separately, which can be paid in advance at the time of prosecution.

5. Common misconceptions

Misconception 1: If a spouse goes missing, the marriage will automatically be dissolved after a few years.Correct answer: Marriage is not automatically dissolved; only divorce registration, a final court judgment, or a mediation agreement can terminate the marital relationship. One must actively initiate the necessary legal procedures.

Misconception No. 2: You must wait two full years before you can file for divorce. Positive explanation: two years is the condition for declaring missing, and direct prosecution for divorce is not subject to this restriction. If you lose your league, you can sue and announce the service within a few months.

Misconception 3: Declaring someone missing is the same as getting a divorce.Correct answer: A declaration of missing person only addresses the issues of a person’s legal status and the administration of their property; the marital relationship must still be dissolved through a separate divorce lawsuit and by court judgment.

Misconception 4: If you can’t find the person, you just have to wait, and the court can’t help either.Correct answer: Public notice service and default judgment are procedures specifically designed for cases where a party’s whereabouts are unknown; the key is to gather sufficient evidence proving that the party is indeed “out of contact.”

Myth 5: After a divorce judgment is rendered in absentia, the other party can overturn everything upon their return. Positive explanation: the judgment by default also has legal effect; the other party can apply for retrial according to law after coming back, but it is usually not enough to overturn only on the grounds of "not participating in the trial". Generally, the part of dissolution of marriage will not be reversed, and the dispute mostly focuses on whether the property division is fair or not.

Misconception 6: If a person has been missing for two years, they can only be declared missing.Correct answer: Two years is the period required for a declaration of missing person; four years are required for a declaration of death (or two years if the person has been missing due to an accidental event). The procedures and legal effects of the two are different; choose accordingly.

Misconception 7: Once a person is declared missing, their property automatically passes to the administrator.Correct answer: The administrator is only responsible for management; ownership still belongs to the missing person. During the period of administration, any disposition of property must be made in the best interests of the missing person; unauthorized disposal may result in liability for damages.

Misconception 8: You must not make any changes to the jointly owned property before the missing party returns.Correct answer: Necessary expenses such as routine maintenance and repayment of joint debts may be paid from the jointly owned property, with supporting documentation retained; however, any major dispositions must be carried out through a custodial arrangement or litigation proceedings.

Myth 9: Once the statutory period for service by public notice has expired, the court will invariably grant a divorce.Correct answer: Even in a default judgment, the court must still examine whether the marital relationship has broken down; in cases of missing persons, a breakdown is typically established based on prolonged absence and separation, but relevant evidence must still be fully provided.

6. Frequently Asked Questions

How long after a spouse goes missing can you get a divorce?

If the whereabouts are unknown for two years, you can first declare the disappearance and then sue for divorce (divorce should be granted); You can also sue directly without waiting for two years, and announce the judgment in default after the expiration of 30 days.

How are the thirty days for service by public notice calculated?

Thirty days from the date of publication of the notice shall be deemed as service; after the expiration of the notice period, if the defendant still fails to appear in court, the case may be heard in absentia.

What should be done about the other party’s bank deposits and real estate?

Under the path of declaration of disappearance, the court shall appoint the property escrow to manage and dispose; under the path of direct prosecution, the property share of the absentee party shall be reserved or deposited by the court judgment, and cannot be realized immediately after it appears.

What documents are required to file an application for a declaration of missing person?

Submit the application and evidence that the person has been missing for two years (police report, community certificate, testimonies from relatives and friends, proof of the last contact), to the basic-level people’s court in the place where the missing person was last known to reside.

How should child custody be handled?

If the whereabouts of one party is unknown, the children shall be directly raised by the other party in principle, and the court may decide that the maintenance fee shall be paid or deposited from the property of the missing party; if the property is managed by the escrow, it may be paid from the escrow property.

7. Practical Insights from a Lawyer

Just because the other party can’t be found doesn’t mean the divorce is impossible, but you need to choose the right legal path.One is to apply for a declaration of disappearance first, and then sue for divorce, the court should grant the divorce; the other is to sue directly, through the announcement of service, the other party is still not in court at the expiration of the announcement, and the judgment will be made in default. The key to your choice lies in your real needs: if there is no property in the other party's name that needs to be disposed of, direct prosecution can be initiated faster; if it involves property that needs to be disposed of together, such as real estate and deposits, it is more stable to go ahead and declare the missing, because the missing person's property will have escrow arrangements and will be disposed of less passively after divorce.

No matter which way you go, the fact that "the whereabouts are unknown" must speak with evidence. What can be prepared includes alarm or tracing records, certificates of village committees or units, testimony of relatives and neighbors, communication records before losing contact, etc., which are used to prove that the other party has been away from home for a long time and there is no news. The more solid the materials are prepared, the more assured the court will be about the service of the announcement and the judgment in default. On the other hand, if you can't get in touch with each other and the other party occasionally has news, you can't take it for granted that you are missing, otherwise the procedure will be easily stuck and the time will be delayed.

You should also calculate the time cost in advance. The declaration of disappearance itself has an announcement period, followed by a divorce, which is longer overall; direct prosecution is subject to the pace of service and announcement. Therefore, it is not recommended to roll out two roads at the same time. Instead, you should choose one of the two based on your property status and your affordability, and focus your time and energy on one line. It is also necessary to predict the possibility of the other party's sudden appearance, such as coming back to claim rights before the judgment is served, so all evidence should be fixed as soon as possible. In the negotiation, if the family members of the other party are willing to communicate on their behalf, they can pass on the conditions through them, which is often more convenient than announcing the absence.

Disappearance of spouse is not an obstacle to divorce, but a detour in procedure: after two years of disappearance, you can sue for divorce (which should be granted), and the property is taken over by the escrow; if you want to sue directly, announce the service and judge by default. No matter which way, the four types of evidence, namely, the alarm record, the community certificate, the testimony of relatives and friends, and the final contact time, should be fixed in advance-the word "whereabouts are unknown". In the final analysis, it is a fact written with evidence.