Ten questions to answer the doubts and doubts about the divorce cooling-off period

　　Reporter Fan Tianjiao

　　From January 1, 2021, the divorce cooling-off period is officially added to the divorce registration process.

According to the law, within 30 days from the date when the marriage registration authority receives the divorce registration application, if either party is unwilling to divorce, it may withdraw the divorce registration application to the marriage registration authority.

Within 30 days after the expiration of the time limit, both parties shall personally go to the marriage registration authority to apply for the issuance of a divorce certificate; if they fail to apply, they shall be deemed to have withdrawn their divorce registration application.

　　Increasing the cooling-off period in the divorce process has aroused widespread concern in the society. Some people think that this will help prevent impulsive divorce and provide opportunities for both spouses to repair their relationship. Some people think that this will restrict the freedom of divorce and will lead to difficult divorce. When it happens, some people worry that the divorce cooling-off period shelters domestic violence and leaves space for the transfer of property...

　　So, how should we treat the divorce cooling-off period correctly?

Recently, a reporter from the Rule of Law Daily interviewed Zhou Yuan, chief of the Civil Division of the People's Court of Luyang District, Hefei City, Anhui Province and head of the family trial team, and asked him to answer public questions.

Question 1: What is the significance of adding a divorce cooling-off period system?

　　The cooling-off period is a compromise between adhering to the law of freedom of divorce, the bottom line of rights, and restraining the rapid growth of the divorce rate and maintaining social stability.

Many times, some people, especially young people, go to the Civil Affairs Bureau to negotiate a divorce or go to the court to sue for divorce. They are often out of anger or impulsive choice. In fact, the relationship between husband and wife has not broken, and there is still a reconciliation. The possibility of repair.

In this case, setting a cooling-off period for a certain period of time allows both spouses to make emotional adjustments, marital treatment and rational choice during the cooling-off period, thereby effectively avoiding impulsive divorce.

In addition, setting up a divorce cooling-off period is conducive to improving my country's divorce system and harmonizing the interests of marriage parties and minor children.

Question 2: Does the divorce cooling-off period limit the freedom of divorce?

　　The purpose of setting a divorce cooling-off period is mainly to prevent impulsive divorce, but the initiative of divorce is still in the hands of both spouses.

Whether to withdraw the divorce application during the divorce cooling-off period and whether to apply for a divorce after the expiration of the cooling-off period still depends on both spouses.

　　In addition, the civil affairs department only deals with the marriage relationship between the spouses in which there is no dispute over divorce, child support, property division, and debt obligations. If the spouses do not reach an agreement on the divorce, they cannot go through the divorce registration procedures in the civil affairs department.

A party requesting a divorce can also choose to request the court to dissolve the relationship through litigation.

Therefore, the introduction of a divorce cooling-off period in the divorce registration process does not affect the freedom of divorce.

Question 3: One spouse has a firm attitude towards divorce, can it refuse to implement the cooling-off period?

　　Article 1077 of the Civil Code stipulates that within 30 days from the date when the marriage registration authority receives the application for divorce registration, if either party is unwilling to divorce, it may withdraw the divorce registration application to the marriage registration authority.

Within 30 days after the expiration of the time limit specified in the preceding paragraph, both parties shall personally go to the marriage registration authority to apply for the issuance of a divorce certificate; if they fail to apply, the application for divorce registration shall be deemed to have been withdrawn.

This provision is the legal basis for introducing the cooling-off period system in the divorce registration procedure.

In other words, it is to make restrictive provisions on the registration of divorce procedures from the height of the law.

Therefore, even if one party is determined to divorce, he cannot refuse to implement the cooling-off period.

However, if the two parties cannot reach a consensus on the divorce after the expiration of the cooling-off period, the party resolutely divorcing can dissolve the marriage relationship through litigation.

Question 4: Is the cooling-off period not conducive to protecting the victim of domestic violence?

　　Zero tolerance for domestic violence is the bottom line of civilization that cannot be trampled on by society, and the cooling-off period is definitely not a "protective umbrella" for domestic violence.

For situations such as domestic violence, in practice, the parties often file for divorce in the courts.

Domestic violence is a conflict between husband and wife that endangers life, health and safety.

If it is determined that there is a serious domestic violence situation, and the party’s request for a divorce due to domestic violence is true, the court will no longer apply the divorce cooling-off period system to avoid harm to the victim.

In addition, domestic violence victims can also apply for a personal safety protection order to the court.

Question 5: Is it suspected of rape during the period of cooling-off?

　　The divorce cooling-off period still belongs to the duration of the relationship between the husband and wife, and the marriage relationship between the two parties is not actually dissolved at this time.

Therefore, both parties still enjoy the rights of husband and wife and should perform their obligations as husband and wife in accordance with the law.

But this does not mean that one party can have a sexual relationship against the other party's wishes.

Sexual relations during the divorce cooling-off period are based on the wishes of both parties.

If a woman is raped by violence, coercion or other means against the will of a woman, if there is sufficient evidence to prove it, it can be determined to constitute the crime of rape.

　　Question 6: What if one spouse transfers or squanders property during the cooling-off period?

　　Article 1066 of the Civil Code stipulates that during the period of the marriage relationship, one of the following circumstances, one spouse may request the people’s court to divide the common property: (1) One of the parties has hidden, transferred, sold, destroyed, squandered the common property of the spouse or forged the spouse Joint debts and other acts that seriously damage the interests of the husband and wife’s common property; (2) One party has a statutory maintenance obligation and requires treatment for a major illness, and the other party does not agree to pay related medical expenses.

Article 1092 of the Civil Code stipulates that if one spouse conceals, transfers, sells, destroys, or squanders the joint property of the spouse, or forges the joint debt of the spouse in an attempt to embezzle the property of the other spouse. Minute.

After the divorce, if the other party discovers the above-mentioned behaviors, it can file a lawsuit in the people's court, requesting that the joint property be divided again.

Therefore, no matter when the transfer or squandering occurs, the other party can deal with it in accordance with the provisions of Article 1066 and Article 1092 of the Civil Code.

Question 7: During the cooling-off period, if one of the spouses incurs new debts or adds new property, is it a joint debt or joint property of the spouse?

　　The relevant laws and judicial interpretations of our country have clear regulations on the joint debts and joint property of husband and wife.

During the cooling-off period of divorce, the newly added debts or properties cannot be determined to belong to or not belong to the joint debts or joint property of the husband and wife, but should be based on whether they meet the legal conditions.

The divorce cooling-off period is not necessarily related to the determination of the joint property and joint debt of the husband and wife.

　　Question 8: After the expiration of the cooling-off period, what if one party of the divorce agreement originally reached by both parties regrets the change?

　　Registered divorce is what we often call divorce by agreement.

Only when both spouses divorce voluntarily and agree on matters such as child support, property division, debt assumption, etc., can the registered divorce apply.

If the cooling-off period in the registration divorce procedure expires and one party has other opinions and ideas on matters such as divorce, child support, property division, etc., and the two parties cannot reach an agreement through consultation, the applicable conditions for registration of divorce will no longer be met, and the party requesting the divorce can take a lawsuit The way to dissolve the marriage relationship.

Question 9: Before the implementation of this system, did the courts have relevant practices in trials and what is the effect?

　　The divorce cooling-off period specified in Article 1077 of the Civil Code applies to registered divorce.

Although the article does not clearly stipulate the cooling-off period system in litigation divorce, the judicial practice has actively explored the cooling-off period system in litigation divorce.

It can also be said that it is the beneficial exploration and experience summary of the divorce cooling-off period in litigation that promoted the introduction of the registration divorce cooling-off period.

On July 18, 2018, the Supreme People’s Court issued the "Opinions on Further Deepening the Reform of Family Trial Methods and Working Mechanisms (for Trial Implementation)". Article 40 of the A cooling-off period of 3 months.

During the cooling-off period, the people's court may carry out mediation, family investigation, psychological counseling, etc. according to the situation of the case.

After the cooling-off period is over, the people's court shall notify both parties.

This article stipulates the divorce cooling-off period in litigation, and its function is to reduce impulsive divorce and reduce the confrontation between the parties, which is conducive to more accurate judgments of the case by the people's court.

　　As far as the Luyang District Court is concerned, taking the opportunity of the reform of the family trial method and working mechanism, it has innovatively applied the divorce cooling-off period system under the framework of laws and regulations, and adopted the method of issuing a civil mediation document to establish a cooling-off period. When the marriage cooling-off period has reached an agreement, the court shall issue a mediation statement to determine it, and it does not infringe the parties’ right to freedom of marriage.

Within the legal framework, the divorce cooling-off period determined by the civil mediation document is 6 months from the date of mediation, allowing both parties to adjust their emotions and cure the marriage during the cooling-off period, so as not to violate the parties’ right to freedom of marriage and litigation rights. , To prevent impulsive divorce and maintain the harmony and stability of the family and society.

　　For effective divorce cases, considering that the parties will be required to issue a divorce judgment when conducting other civil activities, there is a risk of privacy leakage. The Luyang District Court has designed a standardized divorce certificate by itself, which only contains the case number, the names of the parties, and Information such as the effective time of the divorce judgment does not involve the facts of the case, and its proving effect is equivalent to the judgment document, effectively protecting the personal privacy of the parties.

Question 10: After the implementation of this system, what changes will the courts' family trials work?

　　The Civil Code has been implemented on January 1, 2021, and the divorce cooling-off period system will be followed by the introduction of divorce registration procedures, which may lead to an increase in litigation and divorce cases and further increase the pressure on courts and family trials.

In addition, with the abolition of the marriage law after the implementation of the Civil Code, new judicial interpretations have not yet been issued, and there are still some unsolved issues on how to handle marriage cases during the transition period.