Insights

How can Ningbo divorce without receiving a summons?

Ningbo Author：LuXu WANG

When the lawsuit was filed, the other party disappeared as soon as he heard the divorce, the summons was not answered, and no one could find it. In this case, the court cannot judge? In fact, the law has rules of service and trial in absentia, and hiding is not the way.

1. non-receipt of subpoena does not amount to suspension

if the defendant refuses to accept or evades the summons, the case will not be stalled. The court may serve by lien, electronic, mail and other means, and if the service cannot be served after exhaustion, the service shall be announced in accordance with the law. The procedure will not stop because one party does not cooperate, which is the bottom line of the litigation system.

Various delivery methods

in addition to direct service, the court can also mail, electronic service, lien service. The defendant deliberately avoided sight, which did not affect the progress of the procedure, but only took more trouble. For the defendant, hiding just pushed back the procedure, did not eliminate the risk, but let oneself lose the opportunity to reply.

How to operate the 2. announcement service

if the whereabouts of the person to be served are unknown or service cannot be served by other means, the court may announce the service, and the notice shall be deemed to have been served at the expiration of the time limit. This is a common means of cracking "peek-a-boo" in divorce cases. The announcement is generally published on the court-appointed platform, after the expiration of the law as the other party has been known, the follow-up procedures as usual. According to the answer of the People's Court of the Zhejiang High Court, the divorce proceedings in which the defendant's whereabouts are unknown are not based on the declaration of disappearance, and the Ningbo court can directly accept it and proceed in accordance with the announcement service procedure.

The announcement period should be accurate.

There is a statutory time limit for the service of a public notice, and the effect of service will not occur until the expiration of the time limit. The parties and agents should pay attention to the start and expiration time of the announcement to avoid missing subsequent nodes. In particular, when calculating the appeal period and the certification period, the starting point is linked to the date of service, and the difference of one day may affect the rights.

Conditions 3. default judgment

if the defendant refuses to appear in court without justifiable reasons after being summoned legally, or withdraws from court midway without the permission of the court, the court may make a judgment by default. In a divorce case, if there is sufficient evidence of emotional breakdown, the divorce may still be sentenced. Absence merely forfeited the opportunity to plead and present evidence and did not prevent the judgement from being rendered.

Not necessarily sentenced to leave

absence does not necessarily mean a divorce. The court still has to examine whether the relationship has broken down. When the plaintiff has insufficient evidence, the divorce may not be allowed even if the defendant is absent. The procedure can be absent from the trial, and the entity still depends on whether the plaintiff can prove the breakdown of the relationship. The two cannot be confused.

The cost of 4. hiding is higher.

Defendants dodging not only delay themselves, but may also be regarded as non-cooperation, unfavorable maintenance evaluation, and bear the expenses such as announcement. The rational face is more cost-effective than the disappearance. Absence often makes the court have a worse impression on the defendant, which may not be beneficial in raising and dividing property, and the loss outweighs the gain.

Mode of service in 5. courts

there is a clear order of service: priority is given to direct service; If the recipient refuses to accept the service, witnesses may be invited to be present for service. If the whereabouts are unknown or cannot be served by other means, the notice shall be served. With the consent of the person to be served, it may also be served electronically and take effect immediately. This sequence determines that the court will try a gentle way first, but there is no talent announcement.

Lien delivery also counts as delivery

leave the document at the other party's residence and record it, which is legally deemed to have been served. Hiding and not signing will not prevent the process from proceeding, but will only make oneself lose the opportunity to reply and give evidence. Not mentioning the defense that should be mentioned is tantamount to handing over the initiative to the other party, which is difficult to remedy afterwards.

6. the plaintiff should have enough evidence.

It is a misconception to expect an easy divorce from the defendant in his absence. What the plaintiff really needs to do is to prepare solid evidence of emotional breakdown: proof of separation for two years, alarm and mediation records, confirmation of emotional breakdown during chat, and the status quo of child support. The more sufficient the evidence, the higher the probability of a judgment in absentia; the evidence is thin, and even if the other party does not appear in court, it may be rejected.

Don't bet your hopes on the other's absence.

Many plaintiffs heard that "he can be sentenced to leave if he does not come" and relaxed the evidence, the result was rejected by the court for insufficient evidence. Absence is only a procedural fact, and the judgment of the entity that cannot be separated still depends on the evidence. If the first prosecution fails to be divorced, the prosecution will be repeated after a six-month cooling-off period. With the fixed evidence of separation and emotional breakdown, the conviction is usually more reliable than simply expecting the other party to be absent. Putting the proof first is much more reliable than expecting the other party to disappear, and it also avoids going through a round of procedures in vain.

7. case proof

according to the divorce dispute between Yan and Yu publicly ruled by Ningbo Ninghai Court, the two sides have been separated for a long time and there is no possibility of peace. The defendant is absent, and the court allows the divorce-the absence of the defendant does not prevent the court from making a judgment based on the evidence of emotional breakdown.

According to the Ningbo court's public judgment of the divorce dispute between Yin and Guan, the two sides have been separated for a long time but lack of "emotional discord and separation for two years" of valid evidence, the court ruled that divorce is not allowed-absence or loss of contact is only a procedural state, the entity is still based on the evidence of emotional breakdown, insufficient evidence may also be sentenced.

If the defendant refuses to appear in court after being legally summoned, the court will still judge the divorce in default if it finds that the relationship has indeed broken down after examination. The procedural expenses such as announcement of service shall be borne by the relevant parties according to law (according to the provisions of the Civil Procedure Law on the burden of litigation expenses). Avoidance will only increase the cost and will not change the substantive result.

8. Risk Alert

  • I think the other party can't hide away.
  • Ignore the announcement period time node.
  • The plaintiff's own evidence is not sufficient.
  • The absence as a necessary sentence.
  • The defendant bears the additional cost of the announcement.
  • The plaintiff put all his hopes in absentia.

9. FAQ

can the other party divorce without a summons?

Can. The court may retain, mail or announce the service, and the trial shall be heard in default after the expiration of the term of service.

How long does it take for the announcement to be delivered?

There is a statutory announcement period, the expiration of the effect of service, the specific court announcement shall prevail.

Will the defendant be sentenced in absence?

Not necessarily. Emotional breakdown is still to be reviewed, and lack of evidence may also deny divorce.

Who's worse off avoiding a subpoena?

It is costly and may be detrimental to the maintenance evaluation, and you have to bear the cost of the announcement.

Practical Experience of 10. Lawyers

just because the other party disappears and refuses to accept the summons as soon as he hears about the divorce does not mean that the case cannot be judged. Litigation will not be suspended because one party does not cooperate. In addition to direct service, the court can also mail, electronic and lien. If it cannot be delivered by exhausting these methods, it will be served by public announcement according to law. Upon the expiration of the public announcement, it will be deemed to be served, and the procedure will go down as usual. Instead of asking people everywhere to persuade the other party to show up, it is better to pay attention to checking the delivery method and time. Don't mess up your position just because the other party is hiding. Patience in procedure is a kind of initiative in itself.

When it arrives, keep an eye on the node. There is a statutory time limit for the service of the public notice, and the starting and expiration are linked to the subsequent appeal period and the certification period, which may affect the exercise of rights by one day. If the defendant fails to appear in court without justifiable reasons after being legally summoned, the court may hear the case in absentia, and the absentee party can still be sentenced to leave if there is sufficient evidence of emotional breakdown. In fact, the absentee party has given up the opportunity to reply and give evidence in vain. What the plaintiff has to do is to prepare his own evidence and do not let the absentee trial become a formality.

You also need to be mentally prepared to deal with procrastination. The other party hides, often trying to drag the program back, or to test your determination. What you have to do is not to be biased by the rhythm: the delivery materials that should be supplemented should be supplemented in time, and the fixed emotional breakdown, property and support evidence should be prepared in advance, so that the absence trial can also have sufficient basis. The procrastination may not be beneficial to the hiding party, the joint repayment of the loan, the proceeds of these will change over time, the active advocate party may slowly take the initiative, and the procrastination party often gradually lose the bargaining space in the process of progress.