What are the special protections for divorced spouses of Ningbo military personnel

Military marriages have special protection in the divorce rules, but "protecting the soldiers" does not mean that "the soldiers have the final say". Article 1081 of the Civil Code sets the rule of consent for the divorce filed by the spouse of an active military member, with the exception of a major fault. This article clarifies the most concerned issues of military wives (and soldiers) according to rules and exceptions, and suggests special points in maintenance and property.

1. Consent Rules for Active Duty Military Spouses

article 1081 of the Civil Code stipulates that when the spouse of an active serviceman requests a divorce, the consent of the serviceman shall be obtained, except where the serviceman has made a major mistake. This means that if a non-military party files for divorce, in principle, a military nod is required, and the legislative intent is to stabilize the morale of the military. It should be noted that the protection only refers to "spouse's request for divorce". If the military party files for divorce, it is not subject to this restriction and will be dealt with according to the general divorce procedure.

Soldiers who take the initiative to prosecute are not subject to this restriction.

If a military party sues for divorce as a plaintiff, it does not need to "obtain its own consent" and the general rules apply directly. In practice, some military-related divorce cases are under the jurisdiction of military courts and some are under the jurisdiction of local courts, depending on the identity of the defendant and the case, but the procedure is barrier-free for soldiers to take the initiative to sue.

Exceptions 2. gross fault

if one of the military personnel has made a serious mistake, the spouse's consent is not required for divorce. Major faults correspond to the faults in Article 1091 of the Civil Code: bigamy or cohabitation with others, domestic violence or abuse and abandonment, gambling and drug abuse, and other bad habits, as well as other major faults. This exception is the substantive threshold, and the standard of proof cannot be lowered-"personality incompatibility" and "cold war" alone are not sufficient.

The standard of proof cannot be lowered

corresponding evidence is required for claiming major faults: domestic violence has warning letters and alarm records; Cohabitation has evidence of continuous and stable common residence; There is a record of punishment or withdrawal for vices. Military status does not raise nor reduce the fault proof requirements, the court still based on evidence, can not only rely on one party's statement to determine fault.

Special arrangements for 3. upbringing and visitation

the determination of custody of children of military marriages is the same as that of ordinary divorces, and shall be dealt with in accordance with Article 1084 of the Civil Code on the principle of being most beneficial to minor children. The special feature lies in the military occupation: long-term training, going to sea and carrying out tasks lead to unstable companionship, and the visiting plan should be practical, rather than mechanical weekend visits. Write the task cycle into the visitation clause, which is more executable.

Visiting plan to fit the reality

military visits are often interrupted by missions, and the plan should reserve a mechanism for "postponing visits in case of mission conflict" and specify the frequency of video visits. The finer the agreement, the fewer the enforcement disputes. The ownership of custody itself is not tilted by military status, of course, but still depends on the stable environment and the interests of children. The courts of Ningbo Ninghai, Yuyao and other places have introduced the family investigator mechanism in family cases (466 investigation reports issued by Ninghai Court in 2020-2022), and disputes over maintenance and visitation may be verified by field visits by investigators.

Forensics Boundary of 4. Confidential Information

when soldiers are involved in classified posts, relevant communications, resident and other information cannot be directly collected by themselves, otherwise they may touch the confidentiality red line. Such materials shall be obtained through the courts in accordance with the law and examined by the judicial organs in accordance with confidential procedures. The parties should not contact the secret carrier without authorization for evidence collection, which is not worth the loss.

Through the court in accordance with the law

military-related information is obtained by the court according to its authority or investigation order, and the parties can explain the clues in the litigation, and they do not have to and should not break through the confidentiality restrictions on their own. This is both compliant and avoids its own exposure to other legal risks.

Consideration of the 5. transition and resettlement period

property with personal attributes, such as military transfer fees and self-employment fees, shall be calculated according to the proportion of the duration of the marriage relationship, rather than the full amount. Demobilization and rehabilitation usually occur within marriage or at the point of marital change, and are areas where military marital property disputes are high. Mediation is still a necessary part of divorce, and military-related cases are no exception.

1. Mediation is still a necessary link

military marriages and divorces are also mediated first. Even if the military agrees to divorce, property and maintenance arrangements still need to be confirmed in mediation or judgment. The conversion rate of the transfer fee, housing subsidies, etc. are listed to avoid "leaving but not counting".

2. Proportion of life expectancy

the one-time retirement fee shall be converted into the common part by multiplying the duration of the marital relationship by the annual per capita fee, and the specific proportion shall be in accordance with the relevant judicial interpretation. It is suggested that the time nodes of enlistment, marriage and retirement should be transferred, and the divisible base should be calculated by lawyers.

3. The visiting plan should leave room for adjustment.

The military profession changes greatly, the visiting clause should retain the flexibility of task adjustment, and agree on the temporary arrangement mechanism in case of dispute, so as to reduce the friction of subsequent implementation.

4. Jurisdictional arrangements for military-related cases

if the defendant is a soldier, it may be under the jurisdiction of a military court; if the defendant is a soldier's spouse, it is generally under the jurisdiction of a local court. Jurisdiction affects the trial court rather than the substantive rights, which can be confirmed before prosecution to avoid wrong courts.

The Special Composition of 6. Military Property

military casualty insurance, disability allowance, medical living allowance, etc. have personal exclusive attributes and belong to the personal property of military personnel (Article 1063 of the Civil Code), and do not participate in the division in the event of divorce. In contrast, after marriage wages, allowances, etc. are still common property. Due to the special land and property rights, the division and inheritance of military housing are subject to policy restrictions and need to be evaluated separately.

Percentage of life

military delivery room, housing subsidies, etc. have both security and property attributes. When dealing with them, it depends not only on the length of marriage, but also on the caliber of military policies. The rules of commercial housing cannot be simply applied.

7. case proof

in practice, the military spouse claimed the exception of major fault on the basis of long-term domestic violence (holding a warning letter and injury record) on the part of the military. The court found that Article 1091 was met, and the military did not need to agree to divorce and make arrangements for upbringing.

In practice: military personnel take the initiative to sue for divorce, the two sides of the transfer fee division dispute, the court according to the marriage renewal years after the conversion of the common part of the division, the military delivery room in accordance with the policy did not make ownership division and deal with the right to use.

8. Risk Alert

first, the protection of military marriage is limited to "the spouse's request for divorce requires the consent of the military", and there is no restriction on the military's initiative to sue. Second, the material fault exception requires solid evidence and the standard is not lowered. Third, classified information can only be obtained by the court, self-evidence collection has compliance risks. Fourth, the transfer fee, military delivery room according to special rules, can not be equivalent to ordinary property.

9. FAQ

can't the soldiers leave if they don't agree?

In principle, the spouse's request for divorce requires the consent of the military personnel. However, unless one of the military personnel has made a serious mistake (bigamy, cohabitation, domestic violence, bad habits, etc.), his consent is not required at this time.

Is it restricted for soldiers to prosecute themselves?

Not limited. Soldiers as the plaintiff to sue for divorce, according to the general procedure, the protection clause does not reverse the binding of soldiers.

Can you go to the army to investigate and collect evidence?

Can not contact the secret carrier. Military-related information should be obtained by the court in accordance with the law, and the parties can explain the clues to avoid touching the red line of confidentiality.

How to divide the resettlement fee?

The transfer fee and the independent employment fee shall be divided into common parts according to the proportion of the marriage renewal period, and the non-full amount shall be divided equally, which shall be calculated according to the relevant judicial interpretation.

Is there a major fault and a direct sentence?

Significant fault is the exception of "no consent required", and the court still finds the fault to be established on the basis of evidence and makes a comprehensive judgment of emotional breakdown, not a claim to be a divorce.

What is the subsidy for soldiers?

Casualty insurance benefits, disability subsidies, medical living allowances, etc. have personal attributes and are not divided into military personal property; post-marital wage allowances are common property.

Practical Experience of 10. Lawyers

the divorce rules for military-related marriages have special features, but "protecting soldiers" does not mean that "the soldiers have the final say". If the spouse of an active serviceman requests a divorce, in principle, the consent of the soldier should be obtained. This is a practical restriction; however, if one of the soldiers has a major fault, it is not subject to this restriction, and the spouse can directly propose it. Therefore, as a military spouse, the first thing is not to be frightened by "he must agree", but to judge whether there is any exception channel of major fault and whether there is any evidence in his hand that can support the claim of major fault. The absence of this exception directly determines the pace and strategy of divorce.

The preparation of evidence should be arranged in conjunction with the characteristics of the military profession. The materials that can reflect the facts of major mistakes should be fixed as soon as possible and safely, but the process of obtaining evidence should strictly abide by the boundaries-the contents involving the interior of the army, military facilities and classified information must not be obtained or photographed without authorization. Once the boundary is crossed, not only the evidence will not be used, but also serious consequences may be brought about. Jurisdiction is not necessarily in the local court, the specific military court or the local court, depending on the identity of the defendant and the case, before the prosecution to confirm the acceptance of the court, so as not to run the wrong door. These procedural details often affect the progress of the case more than repeatedly emphasizing grievances.

Raising, visiting and property are also parts of a military divorce that require special attention. Soldiers are in the army all the year round, gather less and leave more. The claim of custody should be based on who will take care of the children for a long time and whether the living environment is stable. The visiting arrangement should also take into account the time characteristics of military leave and try to write it as operational as possible. In terms of property, there are special items such as allowances and subsidies in the composition of military income. When dividing, it is necessary to clarify which items belong to common property. If it is in the period of transfer or resettlement, the relevant treatment and the treatment of resettlement housing should also be included in the plan in advance. In negotiations, the attitude of the army organization and unit leaders sometimes becomes a factor affecting the other party's position. Reasonable communication through organizational channels is often more effective than fighting alone.