Knowledge Sharing | Divorce Process Guide

According to the "Statistics of the Development of Civil Affairs in 2021" released by the Ministry of Civil Affairs in May 2022, statistical data show that since 2017, my country’s marriage rate and divorce rate have been significantly declining.

In 2021, my country ’s marriage registration was 7.643 million pairs of marriage. The marriage rate was 5.4 ‰, a decrease of 0.4 thousand points from the previous year.The divorce procedures in accordance with the law were 2.839 million pairs, of which: the civil affairs department registered 2.141 million divorce, and the court judged and mediation divorce 698,000 pairs.The divorce rate was 2.0 ‰, a decrease of 1.1 thousand points from the previous year.

At present, there are two main ways to divorce in my country: agreement divorce (also known as registered divorce) and lawsuit divorce (also known as mediation and judgment divorce).

What is the basic process of divorce?How long does it take to divorce?For these questions that everyone cares about, this article will answer you in detail.

1. Agreement divorce

Basic process

The divorce, also known as registration divorce, refers to the voluntary divorce of the husband and wife, and reached an agreement on issues such as the child care and property treatment, sign a written divorce agreement, and personally go to the marriage registration authority to apply for a divorce registration.

The marriage registration authority here requires the marriage registration authority where one party is located.

Agreement divorce includes the following three processes:

● Online divorce registration application appointment.Before a divorce registration application is conducted offline, both the couple or one need to make an appointment for a divorce application online.From the early morning of the day, the seats of the natural days after the appointment are made.

The marriage registration authority will conduct a preliminary examination of the submitted materials. After the preliminary examination is correct, it will be issued to the "Divorce Registration Application Application to Accepted the Return". If it does not meet the conditions for acceptance of the divorce registration application, it will not be accepted.

At the same time, after the divorce registration application is completed, the two parties can make an appointment number for working days within 30 days after the expiration of the divorce calm period.

● Divorce calm period.Within 30 days from the date of receiving the "Divorce Registration Application Application", if any party is unwilling to divorce, the divorce registration application may be withdrawn.

● Offline censorship certificate.Within 30 days after the expires of the divorce and calm period, both the couple should bring their valid identity documents, 2 2 -inch single -person recently half -body -free photos, marriage certificates, and divorce agreement signed by both parties to the marriage registration authority to apply for a divorce certificate.

The marriage registration authority reviews and ask the relevant situation of the documents and certification materials issued by the parties.If the parties are voluntarily divorced and have reached an agreement on the issues such as supporting children, property, debt and other issues, they shall be registered on the spot and issued a divorce certificate.

When choosing a divorce agreement and formulating a divorce agreement, you need to fully understand the property, debts and debts of both parties, and fully communicate with the child care of the children, and respect the opinions of the children.

In order to avoid unnecessary disputes in the future, it is best to have the guidance of professionals when formulating an agreement.It should be noted that only after the two parties receive the divorce certificate, the divorce agreement signed by the two parties has begun to take effect.

If both husband and wife have signed a property agreement and agreed on the ownership of the property before and during the marriage, the property agreement before or during the marriage of the property will take effect from the signed by both parties.During divorce, the two parties can be divided according to a valid property agreement.How to draw up the property agreement, you can click and follow the "Tan Tan Law" public account to find the answer in the article "Discover Guidelines in the Marriage Property Agreement".

Agreement divorce process chart

Basic time

Compared with litigation divorce, the agreement divorce procedure is relatively simple and the length of time required is short.However, according to the law, the two parties need to go to offline registration within 30 days after the calm period expires after 30 days of divorce.If the two parties formulate a divorce agreement and the online appointment registration is relatively smooth, the agreement divorce will take about 2 months.

Correlation

"People’s Republic of China"

Article 1076 stipulates that: "If both husband and wife voluntarily divorce, a written divorce agreement shall be signed and personally shall apply to the marriage registration authority to apply for divorce registration.

The divorce agreement shall contain the consensus on the intention of the voluntary divorce of the two parties and the consistent opinions on the negotiation of the children’s support, property, and debt handling."

Article 1077 stipulates: "Within 30 days from the date of receiving the divorce registration application from the marriage registration authority, any party is unwilling to divorce, and the application for divorce registration from the marriage registration authority can be withdrawn.Within 30 days, the two parties shall apply to the marriage registration authority to apply for a divorce certificate; if the application is not applied, it shall be deemed to have withdrawn the divorce registration application. "

Article 1078 stipulates that: "The marriage registration authority finds that the two parties are indeed voluntary divorce, and have registered for the consistency of children’s support, property, and debt treatment, and issue a divorce certificate."

"Marriage Registration Regulations"

Article 10 Paragraph 1 stipulates: "If the residents of the Mainland voluntarily divorce, both men and women shall jointly go to the marriage registration authority where the resident residence of the parties in one party shall apply for divorce registration."

Article 11, paragraph 1 stipulates: "Mainland residents who apply for divorce registration shall issue the following documents and certification materials:

(1) My account book, ID card;

(2) My marriage certificate;

(3) A divorce agreement signed by the parties."

2. Litigation divorce

Basic process

Litigation divorce refers to a divorce lawsuit directly to the people’s court if the husband and wife ask for divorce.

Suspects can filed a divorce lawsuit from the people’s court, one of which filed a lawsuit is the plaintiff, and the other party was the defendant.

In principle, there is no time limit.However, according to the provisions of the Civil Code, the man must not propose a divorce during pregnancy, one year after childbirth, or within six months after childbirth.The woman’s divorce or the people’s court believes that it is necessary to accept the request of the man’s divorce.

According to the "Civil Procedure Law", divorce litigation is generally under the jurisdiction of the court where the defendant’s residence is located.

The divorce of litigation includes the following six steps: the material preparation stage.It is necessary to prepare the evidence materials required for the lawsuit and draft the prosecution to clarify the request and factual reason for the lawsuit.Application for a lawsuit with the court.Generally, the complaint and evidence materials are submitted to the file of the case.After the registration hall is registered and received the materials, if the plaintiff agrees to mediate, the pre -litigation mediation is performed.Pilotting for acceptance.If the plaintiff does not agree with the unsuccessful mediation or mediation, it will be reviewed by the case of the case, and the case shall be approved if it meets the conditions for the case.A notice shall be issued by the Filter Court to pay the litigation fee with the notice of the case.Professional mediation.Before the court, the judge will organize the mediation again.If the mediation is successful and the two parties are willing to maintain marriage, they can withdraw their prosecution and the marriage continues to be effective.If the two parties agree to divorce, they can divorce the letter by mediation, or go to the Civil Affairs Bureau to divorce after the case is withdrawn.If the mediation is not successful, the trial will be tried.The trial.According to the provisions of the Civil Procedure Law, if a divorce case is not applied for a public trial, the court may decide whether to allow it to be allowed for the reason for the reason.If the divorce case is a litigation agent, I should still appear in court except that I cannot express their intentions. Those who cannot be in court due to special circumstances must submit written opinions to the people’s court.The trial mainly focuses on whether the statutory situation of the lifting of marriage, how the children’s support, and how the husband and wife’s common property are divided.Court decision.After the trial, the court will make a judgment on whether to divorce whether the divorce is allowed to be divorced, and how to divide the property, how to solve the problem of child care, and how to solve the problem of the support of children.

Litigation divorce flowchart

Basic time

In Weiko’s leading legal database, the author analyzed the divorce lawsuit in Shanghai in the past year, and found that in the public 52 judgments, only 10 cases were judged to be divorced for the first time.The parties have the condition that the feelings clearly stipulated in the law have been ruptured.In addition, the plaintiffs had been allowed to divorce for divorce.The remaining 29 cases, the court made a decision that did not give divorce.

In judicial practice, the court basically adopted a "first judgment" attitude.According to the provisions of Article 1079 of the Civil Code, the legal reasons for divorce include: big marriage or living with others; implementing family violence or abuse, abandoning family members; gambling, drug abuse and other evil habits and other bad habits will not be changed;; Other situations that lead to the rupture of the relationship between husband and wife.

If there is no clear evidence to prove that the above four specific circumstances have the above, the court usually does not determine that the relationship between the husband and wife has been ruptured, and the general judgment will not be divorced.The plaintiff must sue for divorce again after six months after the judgment takes into effect.In other words, in addition to satisfying the law clearly stipulated, the plaintiff must sue at least twice, and the interval is more than 6 months.

Coupled with the plaintiff’s application for a lawsuit, the court reviewed the case and the limits of the case trial period (the general procedure is 6 months and the simple procedure for 3 months). Most people usually take one year to achieve litigation divorce.

If the number of common property of both husbands and wives, the complexity of interests, or divorce involves the interests of other family members, solving these problems in divorce litigation will also delay the progress of divorce.

Correlation

"People’s Republic of China"

Article 1079 stipulates: "If a couple requires divorce, the relevant organization may mediate or directly file a divorce lawsuit to the people’s court.

The people’s courts should be mediate; if the relationship is indeed broken and the mediation is invalid, divorce shall be allowed.

If one of the following situations, if the mediation is invalid, the divorce shall be allowed:

(1) Drying or living with others;

(2) Implementing family violence or abuse or abandon family members;

(3) Evil habits such as gambling, drug abuse are repeatedly taught;

(4) For two years due to emotional discord;

(5) Other circumstances that lead to the rupture of the relationship between husband and wife.

If one party is declared missing, and the other party shall file a divorce lawsuit, divorce shall be allowed.

After the people’s court was judged that the divorce was not allowed, the two sides were separated for another year. If one of them filed a divorce lawsuit again, the divorce shall be allowed."

Article 1082 stipulates that: "The woman shall not propose a divorce during pregnancy, one year after childbirth or within six months after pregnancy;Except. "

"Code of Civil Procedure"

Article 65 stipulates that: "If a divorce case has a litigation agent, if you cannot express your intentions, you should still appear in court; if you cannot appear in court due to special circumstances, you must submit a written opinion to the people’s court."

Article 127 (7) stipulates: "The judgment is not allowed to divorce and mediate a good divorce case, and the case of judgment and mediation maintains the adoption relationship.If you sue, you will not accept it. "

Article 137 Paragraph 2 stipulates: "Divorce cases involving business secrets, and if the parties apply for a non -public trial, they may not be tried publicly."

Article 148 stipulates: "Before the sentence of 148, if the plaintiff applied for withdrawal, is it possible that the people’s court ruled."

The Supreme People’s Court’s interpretation of the Application of the Civil Procedure Law of the People’s Republic of China

Article 214 stipulates that: "After the plaintiff’s withdrawal or the people’s court shall be processed by withdrawal, the plaintiff shall be prosecuted again with the same litigation request, and the people’s court shall accept it.

The plaintiff’s withdrawal or divorce cases handled in accordance with the withdrawal of the lawsuit, without new situations and reasons. If they sue within six months, they will not be accepted compared to the provisions of Article 124, paragraph 7 of the Civil Procedure Law."

references

Ministry of Civil Affairs of the People’s Republic of China: "Statistics of the Development of Civil Affairs in 2021"

(https://www.mca.gov.cn)

Special statement

The above article only represents the author’s own point of view, and does not represent any form of legal opinions or suggestions issued by any unit.If you need to reprint or quote the article, please communicate with the authorization of private message. Without authorization, you must not reprint or use any content in the article.If you have related issues, you need to communicate further, and you are welcome to communicate and discuss private messages.

Lawyer Tan Wuying Lawyer Shanghai Huiye Law Firm partner Law Master of Law & Master of Finance National Third Psychological Counselor’s 10 -year -old Municipal Procuratorate Work Experience

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