Insights

Can people with mental disorders in Ningbo get married or divorced? How to determine the guardianship and effectiveness

Ningbo Author：LuXu WANG

Can individuals with mental disorders get married? Can they get divorced? To begin with, here’s the conclusion:Marriage is permissible, and divorce is also allowed, but the procedures and legal effects are governed by special rules. The law neither deprives people with mental disorders of their freedom of marriage nor allows others to infringe upon their rights and interests in the name of marriage. The difficulty does not lie in “whether it is possible,” but rather in “how to determine it, who should act as the agent, and what its legal effect will be.” This paper combines the civil code of marriage and family, the general provisions of the guardianship system and the rules of marriage and family to explain the (I), combs the validity boundary of marriage and divorce path of people with mental disorders, and attaches the practical channels in Ningbo area.

1. first distinguish three states: complete, limited and no capacity for civil conduct

To judge whether a person can marry or divorce independently, the starting point is the capacity of civil conduct, not the label of "whether there is mental disorder. There are three types of law:

  • person with full capacity for civil conduct: adults who can identify their own behavior can independently implement civil legal acts such as marriage and divorce.
  • Persons with Limited Civil Capacity: Adults who are unable to fully recognize their own actions shall have their civil legal acts performed by a statutory agent or require the agent’s consent or subsequent ratification; however, they may independently engage in transactions that confer only benefits, as well as in acts that are commensurate with their intellectual and mental health status (Article 22 of the Civil Code).
  • persons without civil capacity: adults who cannot identify their own actions can only be represented by their legal representatives to carry out civil juristic acts (Article 21 of the Civil Code).

Key point: The ability to act is not automatically generated by "illness", but by the court's declaration. Article 24 of the Civil Code stipulates that for adults who cannot identify or cannot completely identify their own behavior, their interested parties or related organizations (including residents' committees, villagers' committees, medical institutions, disabled persons' federations, civil affairs departments, etc.) can apply to the people's court to determine them as persons with no or limited capacity for civil conduct.

The determination goes through special procedures: it is under the jurisdiction of the basic people's court in the place where the respondent is domiciled; the applicant must submit a written application stating the facts and basis; the court should conduct a forensic psychiatric appraisal when the court considers it necessary; the citizen's close relatives act as the agent (except the applicant), and the close relatives shirk each other's responsibilities shall be appointed by the court; the sole trial and the final trial shall be concluded within 30 days of the first instance. If the cause is eliminated after the judgment has entered into force, he may also apply for the revocation of the original judgment and the restoration of his capacity.

A special reminder: The existence of mental disorder does not mean that he is a person with no capacity for civil conduct or a person with limited capacity for civil conduct. Many people with mental disorders can correctly identify their own behaviors in daily life and have full capacity for civil conduct. No one may be presumed to be a “person with no capacity for civil conduct” without a lawful declaration by a court.

2. Can individuals with mental disorders get married?

Yes. Article 1066 of the Civil Code stipulates that marriage shall be of the complete will of both men and women, forbidding either party to force the other, and forbidding any organization or individual to interfere. Freedom to marry is a fundamental right that is also enjoyed by people with mental disorders-the law does not include "mental disorders" as a prohibition on marriage.

What is the impact of civil capacity on marriage? Mainly Whether the meaning of marriage is true and whether the meaning of marriage can be understood：

  • A person with a mental disorder who has full civil capacity may independently decide to marry, and the marriage is valid.
  • Intermittent mental disorders, if in Mentally stable, not in a state of acute illness. voluntarily registered marriage, meaning is true, can understand the meaning of marriage, the court tends to determine the validity of marriage.
  • If a person registers a marriage during an acute episode of illness, while unable to recognize their own actions, the validity of the marriage may be challenged due to a significant defect in their expression of intent, and the matter must be addressed in conjunction with medical assessment.
  • who is declared by the court as a person without capacity for civil conduct, cannot handle the marriage registration by himself, but must be represented by the legal representative to carry out the corresponding civil juristic acts.

There is also a relief channel: The other party whose illness is concealed may request the annulment of the marriage. Article 1053 of the Civil Code stipulates that if one party suffers from a serious illness, he shall truthfully inform the other party before the marriage registration; if he fails to do so, the other party may request the people's court to cancel the marriage. Severe mental illnesses, such as schizophrenia, are generally considered “serious diseases” that should be disclosed. See the next section for details on how to do this.

3. the issue of marital validity: when is it invalid and when is it revocable

The (I) marriage is void. Article 1051 of the Civil Code stipulates that a marriage shall be invalid under any of the following circumstances: (1) bigamy; (II) there is a kinship that prohibits marriage; (III) under the legal age of marriage. Note: "suffering from mental disorder" itself is not included in the statutory invalid situation. The nullity of marriage must be strictly in one of the above three situations. Those who have the right to request confirmation of invalidity are the parties to the marriage and the interested parties; mediation is not applicable to the trial of the validity of the marriage, and the court shall make a judgment in accordance with the law; if the invalid situation has disappeared at the time of the application, it shall not be supported.

There are two types of (II) revocable marriages:

  • Marriage due to coercion: the coerced party can apply to the court for revocation within one year from the date of termination of the coercive act; if the person's freedom is illegally restricted, it can be filed within one year from the date of restoration of freedom. Such a right of avoidance can only be exercised by the coerced party himself.
  • Due to concealment of a serious illness: If one party suffers from a serious illness and fails to disclose it truthfully prior to marriage registration, the other party may request annulment of the marriage.A request for revocation shall be made within one year from the date on which the grounds for revocation were known or ought to have been known. This one-year period is the period of exclusion, and the suspension, interruption and extension of the statute of limitations are not applicable. Once it is missed, the right of revocation will be eliminated.

Take similar cases as a reference: the party has been diagnosed with schizophrenia before marriage and hospitalized, and the other party finds out after marriage that the other party sued for annulment of marriage within one year after knowing it. The court determines that schizophrenia is a major disease that should be notified, and the prosecution is not overdue. The court decides to cancel the marriage registration and order to return part of the bride price based on the facts of the case. There are three main points in the judgment: severe mental diseases such as schizophrenia belong to "major diseases"; the sick party should bear the burden of proof of "having been truthfully informed"; the revocation right has a one-year period of exclusion and should be exercised in time.

Where a marriage is declared invalid or annulled, it has no legal effect from the outset, and the parties do not have the rights and obligations of spouses; property acquired during the period of cohabitation shall be disposed of by agreement between the parties; if no agreement can be reached, the court shall make a judgment in accordance with the principle of giving due consideration to the party at no fault, and the party at no fault shall have the right to claim damages.

Can people with 4. mental disorders get divorced?

Yes, but the path is limited. The core rule is:

  • Persons with limited capacity for civil conduct and persons without capacity for civil conduct cannot divorce through the agreement of the Civil Affairs Bureau, but can only divorce through court proceedings. Divorce by agreement requires both parties to reach an agreement on divorce, children, property, etc. and apply to the marriage registration office in person, which is difficult for the parties with limited capacity to complete independently.
  • The person with limited capacity for civil conduct can still independently implement the behaviors that are compatible with his own mental health status; the important status behavior involving divorce should generally be carried out with the participation of his legal representative.
  • A person without civil capacity must be represented by a legal representative (I. e. a guardian).

The substantive judgment standard of divorce is also applicable to people with mental disorders. Article 1,079 of the Civil Code provides that when hearing divorce cases, people’s courts shall conduct mediation; if the marital relationship has indeed broken down and mediation fails, a divorce shall be granted. In judicial practice, if one party conceals mental illness before marriage, fails to cure after marriage, or suffers from mental illness after marriage for a long time, it can usually be used as an important situation to determine that the relationship has indeed broken, and the divorce is granted.

How to carry out 5. divorce proceedings: who is the plaintiff, who is the agent, and how the court handles it

There are two identities here.

It is relatively simple to (I) people with mental disorders as defendants. A person with no capacity for civil conduct or limited capacity for civil conduct may be a defendant in a lawsuit, with their guardian acting as the statutory representative in the proceedings. If a guardian has not been designated in advance, persons who are qualified to serve as guardians may negotiate to determine one; if no agreement is reached, the court shall designate a statutory representative for the litigation from among them. In the divorce proceedings of a person without civil capacity, the legal representative shall appear in court, and if he cannot appear in court, the court shall find out the facts and make a judgment in accordance with the law; if he refuses to appear in court without justifiable reasons after being summoned by a summons, the plaintiff shall be dealt with as withdrawing the lawsuit, and the defendant shall make a judgment in absentia.

It is difficult to (II) people with mental disorders as plaintiffs. The root of the problem lies in the fact that the spouse itself is the first order guardian of the adult person with no capacity for civil conduct and the person with limited capacity for civil conduct, as well as his/her legal representative. If the guardianship relationship is not changed, there will be a conflict of litigation that "the plaintiff and the dock are the same person. So the rules are layered on top of one another:

  • If the parties is already a person with no capacity for civil conduct when he gets married, the marriage itself may be regarded as invalid. At this time, the lawsuit of annulment of marriage should be brought by the premarital guardian instead of the lawsuit of divorce.
  • If the party loses civil capacity after marriage (such as illness or accident), his spouse becomes the first guardian according to law. At this time, if the spouse neither takes the initiative to file a divorce nor performs the duty of care, and other persons with guardianship qualifications want to file a divorce lawsuit on their behalf, they must first go through special procedures to change the guardian-that is, first apply for declaration of capacity, revoke the guardianship qualification of the original spouse, appoint a new guardian, and the changed guardian will act as the legal representative to file a divorce lawsuit before the court accepts it.
  • Only when the spouse has the circumstances stipulated in the first paragraph of Article 36 of the Civil Code, other persons with guardianship qualifications can request to revoke their guardianship qualifications. These circumstances include: committing acts that seriously damage the physical and mental health of the ward; neglecting to perform the duties of guardianship, or being unable to perform the duties of guardianship and refusing to entrust others, resulting in the ward being in a state of danger; and carrying out other acts that seriously infringe upon the legitimate rights and interests of the ward. Interpretation (I) of the Chapter on Marriage and Family clarifies: If the newly appointed guardian files for divorce on behalf of a person with no civil capacity, the people’s court shall accept the case.

In other words, If a party without civil capacity wants to divorce, it usually needs to solve the pre-procedure of "guardianship" first, and then talk about "divorce" itself. There is such a case in the trial practice: the sick party is a person with no capacity for civil conduct, and his father directly sued for divorce as a legal representative without revoking his spouse's guardianship qualification, and the court ruled to reject the lawsuit on the grounds that the subject of the lawsuit was not suitable.

There is also a legal principle at play here: divorce has a strong personal‑status character and, in principle, should not be handled by an agent; allowing a guardian to file a lawsuit on behalf of the ward is intended to prevent a spouse from abusing the marital relationship to infringe upon the rights and interests of a person with no capacity for civil conduct.

Determination and duties of 6. guardians

To understand the aforementioned divorce regulations, one must first clarify the guardianship system.

(I) legal order of guardianship. Guardianship for adults is determined in the following order (Article 28 of the Civil Code): (I) spouse; (II) parents or children; (III) other close relatives; (IV) other individuals or organizations willing to serve as guardians, subject to the consent of the residents’ committee, villagers’ committee, or civil affairs department at the residence of the person under guardianship. If there is no person who is qualified for guardianship in accordance with the law, the civil affairs department or the neighborhood committee or village committee of the place where the person under guardianship has the qualifications.

Please note:The spouse is placed in the first order of succession; this is both a right and a responsibility, and it also implies that the court may revoke it. The guardian is not a "life-long system". In case of any serious damage or delay in performing duties as stipulated in Article 36, the court can revoke his guardian qualification according to the application of relevant individuals or organizations, and appoint a new guardian according to law.

(II) designated guardianship. If there is a dispute over the determination of the guardian, it shall be designated by the neighborhood committee, villagers' committee or civil affairs department of the place where the ward has his domicile; if he refuses to accept the designation, he may apply to the court for the designation, or directly to the court for the designation. The designation shall respect the true wishes of the person under guardianship and, in accordance with the principle of acting in the best interests of such person, be made from among those who are legally qualified to serve as guardians. If there is no one to protect the ward before the appointment, the neighborhood committee, village committee, relevant organization or civil affairs department shall serve as the temporary guardian.

(III) The linkage of statutory guardianship. Article 33 of the Civil Code stipulates that adults with full capacity for civil conduct may consult with their close relatives and other individuals or organizations willing to act as guardians in advance to determine their guardians in writing, and when they lose or partially lose their capacity for civil conduct, the guardian shall perform the duties of guardianship. For people with mental disorders who have been diagnosed but are still in the stage of full civil capacity, this is an important way to arrange in advance: when the mental state is stable, a written agreement on future guardians can be used to avoid future guardianship disputes between close relatives and prevent one spouse from harming his interests.

(IV) the duties of a guardian. The duty of the guardian is to act on behalf of the ward in the implementation of civil legal acts and to protect his personal rights, property rights and other legitimate rights and interests (Article 34 of the Civil Code). The performance of duties should follow the principle of the most beneficial to the guardian, and the guardianship of adults should respect their true wishes to the greatest extent, shall not dispose of the property of the ward except for the interests of the ward(Article 35). Those who fail to perform their guardianship duties or infringe upon the rights and interests of their ward shall bear legal responsibility. This is particularly critical in the marriage scene: the guardian must truly stand in the position of the ward when acting on behalf of the lawsuit and disposing of property.

7. Common Disputes

  • One party conceals medical history before marriage. The other party who discovers it only after the marriage shall claim the annulment of the marriage within one year from the date of knowing or should have known; after more than one year, the right of annulment may be extinguished, at which point the divorce may be considered on the grounds of emotional breakdown. In terms of proof, the patient's medical record, diagnosis certificate and hospitalization record are the core evidence.
  • Sick after marriage, the other party wants to divorce. If the sick party has been declared as a person without civil capacity, the divorce can only be through litigation, with the participation of legal representatives. Suffering from mental illness after marriage and not being cured for a long time can be regarded as a situation where the relationship has indeed broken down. However, the court usually first reviews the emotional foundation, life and care after marriage, and often favors the sick party in terms of property division and financial assistance.
  • Guardians misappropriate property through marriage. As the first order guardian, if the spouse uses the supervisory status to control, squander the property of the ward, or "neither divorce nor care", or make profits in the name of marriage, other persons with guardianship qualifications can revoke their guardianship qualifications and change their guardians in accordance with special procedures., And then the new guardian will represent the person with no capacity for civil conduct to initiate divorce proceedings to prevent their rights and interests from being infringed under the marriage shell.

8. Frequently Asked Questions

Question 1: Are people with mental disorders not allowed to get married?No. The law does not list mental disorders as a prohibition on marriage, and persons with mental disorders with full civil capacity may marry on their own; if the condition is stable and the meaning of marriage is understood and voluntary at the time of registration, the marriage is valid.

Question 2: My spouse has a mental disorder. Can I file for divorce directly? can sue, but if the other party is a person with limited or no capacity for civil conduct, his guardian should participate in the lawsuit as legal representative; if the guardian is not determined in advance, it can be negotiated by a person with guardianship qualification or appointed by the court.

Question 3: Can a person with a mental disorder initiate a divorce by mutual agreement at the Civil Affairs Bureau on their own?No. People with limited civil capacity and people without civil capacity cannot independently complete a series of meanings required for divorce by agreement, and can only divorce through court proceedings.

Question 4: Why does the court refuse to accept a case when one wishes to have a sick relative’s marriage dissolved?It’s very likely that the guardianship has not been transferred. The spouse is the first order guardian. If his guardianship qualification is not revoked, other relatives will not have the right to initiate divorce proceedings on behalf of legal representatives, and will be deemed to be unsuitable for the subject and the prosecution will be dismissed. The correct approach is to first change the guardian through a special procedure.

Question 5: Can the other party undo the marriage if he conceals mental illness before marriage?Sure, but you’ll have to hurry. The request for revocation shall be made within one year from the date on which the cause of the revocation is known or should have been known, which is a one-year period of exclusion and does not apply to the suspension, interruption or extension of the statute of limitations.

Question 6: Can you arrange a future guardian for me or my family in advance?Sure. An adult with full capacity for civil conduct may, in writing, consult with his close relatives or other persons or organizations to determine his or her intended guardian and perform his or her duties of guardianship in the event of his or her loss or partial loss of capacity for civil conduct.

9. Practical Insights from a Lawyer

When it comes to the marriage of people with mental disorders, the first step is not to talk about being inseparable in a hurry, but to make clear the behavior ability of the other party. The existence of mental disorders does not mean that there is no legal capacity for civil conduct. Whether it is restricted or incapacity for civil conduct requires an effective declaration made by the court through special procedures. In practice, many parties want to overturn the other party's signature and claim that the agreement is invalid, which is often difficult to establish. You should first confirm whether there is a declaration instrument, the time point and scope of the declaration, and then judge whether the previously signed agreement and disposition have been affected. This front question is wrong, and all the following claims will follow.

If the other party is indeed a person with no capacity for civil conduct or limited capacity for civil conduct, the civil affairs department usually does not accept this kind of divorce by agreement, and can only take the way of litigation, with the legal representative participating on his behalf. At this time, special attention should be paid to whether there is a conflict of interest between the agent and the principal-the spouse himself often wants to divorce and involve property, and if he acts as a guardian to deal with matters that are obviously detrimental to the ward, the other party or other close relatives of the ward may apply for a separate designation. In the lawsuit, you should prepare materials such as daily behavior, medical treatment and medication, cognition of relatives and friends for "what is the true will of the other party and whether you can recognize your own behavior", instead of relying on a medical record.

from the side of protecting one's own rights and interests, we should also prevent the other side from delaying or overturning the game with "incapacity. You can apply for a forensic psychiatric appraisal of the other party's capacity at the same time when filing a case, so as to clarify the dispute once and for all, so that the other party will not suddenly claim that he cannot identify the behavior at that time after the implementation of the agreement. If the other party does have a mental disorder but can still identify their own behavior, you can still claim that the previous agreement is valid, when the daily communication record, independent handling of affairs evidence is particularly critical. The procedures and evidence collection of such cases are more complicated than ordinary divorce. The rhythm should be sooner rather than later. The problem of behavioral ability should be solved first, and then property and support should be discussed.

Bind the previous rules into a few words:Individuals with mental disorders may marry and may also divorce, but both matters are subject to special rules regarding their legal effects and procedures. Marriage depends on whether the meaning expressed at the time of registration is true and whether the meaning of marriage can be understood; divorce depends on whether marriage can only go through litigation and who will act as agent. the capacity of conduct should be declared by the court according to law, and cannot be determined by "illness" for granted; if a party without capacity of civil conduct sues for divorce, it is usually necessary to change the guardian first; the revocation right of concealing serious diseases has a one-year exclusion period, which must be exercised in time.

give several practical suggestions: first, fix the evidence as early as possible, and medical records, diagnosis certificates, hospitalization and medication records, and appraisal opinions are all key materials; second, clarify the capacity of conduct first, and apply for declaration through special procedures if necessary; third, if the divorce of a person without capacity of civil conduct is involved, first solve the pre-issue of guardian change, and then talk about divorce; fourth, set the guardianship with good intentions, let the parties arrange the future for themselves when they are awake; fifth, the whole process is based on the true wishes and best interests of the ward.