Current Commentary: No divorce of "no child-raising" couples is allowed to show judicial warmth

Divorce of "no child" couples is forbidden

　　Li Yingfeng

　　The relationship between husband and wife sued for divorce, and the court ruled that the divorce was not allowed. This unusual case was on the hot search and caused widespread concern.

According to reports, the parties involved in this case are a post-90s couple in Zhenjiang, Jiangsu. The two parties did not have much dispute over the joint property and joint debts of the husband and wife, but the two were unwilling to raise their young daughter. The judge organized multiple mediations and failed.

The People's Court of Yangzhong City, Zhenjiang City held that the relationship between the husband and wife had broken down and both agreed to divorce. However, in view of the failure of the two to properly resolve the child's upbringing problem, the court decided not to approve the divorce in the first instance.

　　Doesn't the relationship between the husband and wife meet the statutory conditions for divorce? Why should we add a "clear child custody" condition?

The judgment of the Yangzhong Court seems to set an additional threshold for the parties applying for divorce. It seems that the understanding and operation beyond the scope of the law hinder the freedom of divorce of the couple involved in the case, but it is not.

The prohibition of divorce of “no child-raising” couples reflects the judge’s complete and accurate understanding of the marriage relationship and divorce obligations. It is helpful for the parties to deal with raising children, the biggest aftermath of divorce, and is helpful for protecting the rights and interests of minors. It not only demonstrates the temperature of justice, but also demonstrates the rationality of justice.

　　For couples with minor children, marriage is not only a matter between two people, but divorce is not only a matter between two people.

Blood relationship and human rights always come first. When a husband and wife are divorced, it is obviously more important to determine the custody of minor children than to divide property.

　　Regarding the situation where both spouses are unwilling to raise minor children, if the judge does not fully explore and evaluate the reasons, and does not comprehensively consider the subsequent impact of the judgment, it is simply determined in accordance with Article 1079 of the Civil Code. "The relationship between husband and wife is indeed broken". The parties are judged to divorce, and in accordance with the Supreme People’s Court’s Interpretation (1) Article 60 of the "Civil Code of the People’s Republic of China" on the application of Marriage and Family The supporter may not be able to figure it out, and will have a strong feeling of resistance, and regard the court's decision as a "forced arbitration" and the child as a burden.

This is not conducive to the healthy growth of the child, nor is it conducive to the complete solution of the raising problem.

　　The function of the divorce judgment is to respect the freedom of divorce, liberate both spouses from the broken marriage relationship, allow them to start a new life, and resolve the raising of minor children based on the principles of voluntariness and the most beneficial to the healthy growth of minors. , Property division and other issues.

Although the issue of raising minor children is not a standard and condition for divorce, it is an important content that the judge must properly handle when making a judgment.

If because of a judgment, the marriage relationship of the couple is dissolved, but the children are placed in a bad growth environment, then such a judgment is a biased and flawed judgment, an irresponsible judgment, or even said to be an irresponsible judgment. A failed judgment, such a judgment does not conform to the original intent of the law, and deviates from the value orientation of divorce adjudication.

　　The judge ruled that couples who "do not raise children" are not allowed to divorce, which is tantamount to giving them a "divorce cooling-off period" for determining the right to claim custody of their children. This allows them to delay for a while, allowing them time to think, negotiate, and resolve raising children The problem.

If after a period of time, the husband and wife file a divorce lawsuit again, and have discussed privately the responsibility for the custody of the child, then based on this voluntary and smooth emotional basis, the judge will make another judgment, and it will be logical for the child. You can also get a more harmonious and healthy growth atmosphere.

Even if the husband and wife have not reached a parenting agreement within the "cooling-off period", the judge can then make a judgment based on the law and comprehensive factual factors.

　　The judge's decision not to permit divorce of couples who "do not raise children" is essentially a judgment on all elements of the divorce, and it also reflects the goodwill and responsibility of the judiciary, which is of positive significance.