Key takeaways:
- Both Chinese cultural tradition and judicial practices contribute to the de facto cooling-off period in litigation, resulting in the current trend of first-time divorce applications being dismissed.
- Under the Civil Code, the ‘cooling-off period’ aims to deter impulsive divorce or hasty divorce, and applies only to divorce by agreement (rather than litigious divorce).
- The “cooling-off period for mutual consented divorce” in the Civil Code may reinforce the existing de facto 6-month cooling-off period in litigation.
Driven by China’s cultural tradition and judicial practice, it is common to see 6-month de facto cooling-off period in litigation, which may be reinforced by the “cooling-off period for mutual consented divorce” in the Civil Code.
Chinese judges warn of the possible consequences that China’s new Civil Code may bring about.
Judge Shi Renju (石仁举) from a court in Linyi, Shandong province, shares his views on the “cooling-off period for divorce” in his social account.
The Civil Code of China requires parties to go through a “cooling-off period” before reaching an agreement and registering a divorce (See our previous post). Since the enactment of the Civil Code in May 2020, the cooling-off period for divorce has been widely discussed among the Chinese public, and it is constantly attracting comments from both proponents and opponents.
In divorce litigation, although the law does not provide for a “cooling-off period for divorce”, the court tends to “dismiss the divorce application where the parties apply for the first time” when hearing divorce cases. Such practice is similar to the “cooling-off period for divorce” in the Civil Code, with similar consequences.
1. “Cooling-off period for divorce” under the Civil Code
The cooling-off period for divorce originates from Article 1077 of the Civil Code. Pursuant to the Provision, after both parties agree to get divorced, divorce registration may be carried out with the marriage registration authority. However, the registration procedures are processed in three steps instead, namely:
(1) joint application by both parties;
(2) waiting for 30 days to see whether a party may withdraw the application; and
(3) both parties’ application for the divorce certificate within another 30 days.
If either party fails to apply for the divorce certificate, the application for divorce registration shall be deemed to have been withdrawn.
The provision of the cooling-off period in divorce by agreement is essential to prevent impulsive divorce or hasty divorce etc.
The cooling-off period for divorce is applied when both parties go to the civil affairs bureau to file for divorce application upon agreement.
In China, in addition to mutual consent divorce, there is also litigious divorce, that is, either of them can initiate the divorce action before the court. Usually, where the parties disagree on whether to get divorced, how to distribute the property, and who to get the custody right of their children, either party may file a divorce lawsuit.
2. The “cooling-off period for divorce” in litigation
Though the “cooling-off period” is not applicable to the divorce lawsuit, it is common practice for courts to dismiss the divorce application when the parties apply for the first time.
Pursuant to the PRC Civil Procedure Law (CPL), “in divorce cases, where a judgment has been made dismissing divorce or where the parties have become reconciled after mediation, and in cases where a judgment has been made to maintain an adoptive relationship or an adoptive relationship is maintained upon mediation, a new action filed for the same case by the plaintiff within six months shall not be accepted without new development or grounds.” In other words, the court may not allow the parties to divorce and may not file the divorce lawsuit again within six months. Many people refer to such six months as a “cooling-off period” for divorce proceedings.
Even, many judges regard it as a necessary part of the divorce proceedings, that is, the judge will tell the parties that the court will not grant the divorce when they file the divorce lawsuit for the first time, and will not grant it until they file a divorce lawsuit again six months later. Therefore, most judges often use this as a reason to deny the divorce when the parties apply for divorce for the first time.
As mentioned above, the “cooling-off period for mutual consent divorce” in the Civil Code may encourage judges to continue to adhere to the six-month de facto cooling-off period in litigation.
3. Why does the de facto cooling-off period in litigation exist?
Generally, the judges tend to believe that the relationship of the couple has not been completely broken and that it is possible for both parties to be reconciled. It has something to do with the Chinese cultural tradition of maintaining family stability. In addition, there are also reasons from the perspective of judicial practice.
(1) To speed up the efficiency of the trial
Chinese courts are now speeding up the process of litigation to address the litigation explosion. In particular, a fast track for adjudication procedures has been introduced for cases such as divorce. For judges, it is the most efficient way to simply dismiss the divorce.
(2) To reduce the social pressure faced by judges
The divorce decision will change the familial relationship between the parties, and it is bound to deal with the problems of child custody and property division of both parties at the same time. However, if the divorce is denied, no follow-up issues need to be dealt with.
Compared with maintaining the marriage, if the issues of child support and property division after divorce are handled improperly or fail to meet the expectations and satisfaction of either party, it will cause greater social pressure on the judge. As a result, some judges often rule to deny the divorce, leaving the divorce issues to be settled by a higher court or judges to follow up the case.
4. Adverse consequences of the de facto cooling-off period
(1) Increasing litigation cost
This practice results in the parties having to go through two rounds of lawsuits before a divorce decision can be rendered, which not only increases the litigation cost for the parties, but also results in a heavier workload for the courts.
(2) Escalating marital conflicts between the parties
As a result of the two lawsuits, both parties are required to maintain in the marriage for a certain period of time, and the conflict is further exacerbated, causing greater harm to the spouse and their family members, and even causing greater risks that either party (especially the female) will be subjected to violence by the other.
(3) Adding leverage for one party
As the abovementioned practice becomes well known to the society, it is highly probable that although both parties know the marriage relationship is difficult to maintain, the defendant may frustrate the plaintiff's divorce purpose by disagreeing with the divorce at trial, or make the plaintiff give ground on child support and property issues, or let the plaintiff make promises against his/her will when he/she is in urgent need of a divorce.
5. Our comments
We have observed the said practice in many cases, which has become quite common in China’s divorce litigation.
As a result, many people who want to divorce will be troubled by this issue. The worst thing is that, after the first divorce application is dismissed, the female usually has to face the revenge of the male for her divorce application. Her life, and even the life of her children, remain in jeopardy until the woman files divorce for the second time and obtains the divorce verdict.
The “cooling-off period for mutual consented divorce” in the Civil Code and the de facto “cooling-off period for litigious divorce” in divorce proceedings may not be the most beneficial arrangement for women or the vulnerable parties in a marriage.
The author hopes the court will reverse this trend and we are also looking forward to such change.
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Photo by Andy Brennan on Unsplash
Contributors: Guodong Du 杜国栋
