A Brief Interpretation of the Civil Code on the Issue of the Cooling-off Period for Divorce
□ Sun Xianzhong (Member of the Chinese Academy of Social Sciences)
Before the implementation of our Civil Code, the current society has questioned the divorce cooling-off period, and it is necessary to answer this question seriously.
Some people think that this system will make divorce difficult, and some people worry that the extension of the divorce period will lead to domestic violence and malicious transfer of property.
In fact, these concerns are not well-founded.
First, regarding the question of whether divorce is difficult in our country, we cannot simply answer yes or no, because this question involves the social values that the divorce legal system should follow and the current state of the country.
What are the social values that some people advocate for making divorce easier?
Does it conform to our national conditions?
In fact, to make divorce easier, this value is not the mainstream in the world, nor is it a common practice.
In Las Vegas, the procedures for marriage and divorce are very simple.
However, the effect of this kind of marriage is not recognized in most countries and regions around the world, even in most states in the United States.
In our country, the requirement of "easy divorce" or "easy divorce" in the law is even more difficult to be accepted by the society.
Most countries and regions in the world believe that the marriage system has a moral and ethical basis that cannot be ignored, that is, respect for marriage, respect for family, and cherish feelings.
Therefore, simply criticizing my country's cooling-off period will lead to difficulties in divorce. This argument is questionable.
Second, the Civil Code stipulates that the cooling-off period is applied in negotiated divorce. This practice has a clear awareness of social problems: in reality, there are social phenomena of reckless marriage and reckless divorce.
There are more divorces. On the one hand, it shows that the autonomy of the parties to the marriage is recognized; on the other hand, there are indeed some people who do not respect their marriage and feelings.
The setting of the cooling-off period system is based on a clear awareness of the problem, and it also proposes a solution to the problem.
Previously, the experimental approach surfaced that the cooling-off period had a very good effect.
Third, how should we understand the cooling-off period?
We should know that the cooling-off period only applies to divorce by agreement. From this perspective, it encourages marriage autonomy.
The basis of marriage is feelings. If the marriage between the parties does not have feelings or the original feelings have broken down, in this case, the conflicting relationship between husband and wife should be resolved.
In terms of law, we must first respect the parties' right to self-determination, that is, resolve the problem through divorce by agreement.
There are two possibilities for resolving conflicts between husbands and wives through agreements. One is the reconciliation of the two parties, and the other is divorce. Therefore, we cannot conclude that a husband and wife agreement can only be divorced.
Of course, in the case of divorce by agreement, there is also the possibility of reconciliation, so it is necessary to establish a cooling-off period in law to solve the practical problem of reckless divorce.
In the real life of society, the consequences of reckless divorce are indeed serious.
This is what we need to pay attention to.
Fourth, we must realize that the basis of marriage is feelings, because marriage produces a family, but there are not only couples in the family, but there are other factors that must be considered comprehensively.
Of course, we cannot use the family to bind the couple, but we must also realize that there are other issues that need to be considered together in addition to personal relationships.
The cooling-off period system also has this factor.
Finally, you must know that the divorce cooling-off period only applies to divorce by agreement, not to litigation.
If the conflicts between the parties to the marriage cannot be resolved by themselves, they need to be resolved in court.
For example, domestic violence and property transfer are not problems that can be solved by divorce by agreement.
These issues can be resolved in a divorce lawsuit.
Once a domestic violence or property transfer is discovered, the other party can immediately apply to the court to take relief measures such as litigation preservation.
If problems such as domestic violence and personal injury arise, you can apply for habeas corpus to the court.
For issues such as the transfer of property, there are also litigation preservation laws.
Therefore, some people hype up these issues and put them in the system of divorce by agreement, which confuses the difference between the system of divorce by agreement and divorce by lawsuit.
Once the dispute between the parties reaches the court, and the other party is unfavorable, the court has a way to solve the problem. The Civil Procedure Law, the Civil Code and other laws and regulations have detailed regulations. There is no need to worry about such problems.