Article 1082
The husband may not file for divorce during the woman's pregnancy, within one year after giving birth, or within six months after the termination of pregnancy, except where the woman files for divorce or the people's court deems it necessary to accept the husband's request for divorce.
I. Purpose of this Article
This article is about the time limit on the exercise of the man's right to request divorce based on the special protection of the physical and mental health of women, fetuses, and young children.
II. Evolution of the Provisions
This article derives from article 34 of the former Marriage Law, as amended in 2001, which stipulates that "a man may not file for divorce during pregnancy, within one year after childbirth, or within six months after the termination of pregnancy." This restriction does not apply if the woman files for divorce, or where the people's court deems it truly necessary to accept the husband's request for divorce. Article 40 of the Civil Code on Marriage and Family (Draft) dated September 26, 2017 (Civil Law Room Draft) continues the basic content of Article 34 of the original Marriage Law, as amended in 2001, but with a textual amendment, amending "where the woman files for divorce, or where the people's court deems it necessary to accept the man's request for divorce, this limit is not limited" to "except where the woman files for divorce or the people's court deems it necessary to accept the man's request for divorce". Later, in Article 859 of the Marriage and Family Section of the Civil Code (Third Reading Draft), the phrase "termination of pregnancy" in the above article was amended to "termination of pregnancy", and the wording was more standardized and precise. Since then, there has been no change in this article until the Civil Code is officially implemented.
3. Interpretation of Provisions
This article is a provision that restricts the husband's right to request divorce.
The restriction of the husband's right to request divorce is to protect the legitimate rights and interests of women and children, because the law stipulates that during the period of pregnancy and childbirth within one year after the woman's pregnancy or childbirth or six months after the termination of pregnancy, the woman has a heavy burden both physically and mentally, and if the divorce is decided during this period, the burden on the woman's body and mind will be excessively heavy, and it will have a serious impact on the woman herself, the fetus being conceived and the baby after birth. If the husband files a request for divorce during the above-mentioned period, the court shall directly dismiss the husband's claim instead of denying the divorce. Where, after the above-mentioned period has elapsed, the husband submits another request for divorce, the court shall hear it in accordance with law.
This period is the statutory period and is divided into three types: (1) the period during which the woman is pregnant. If the woman is not found to be pregnant at the time of filing the lawsuit, but is discovered to be pregnant during or at the end of the trial, this provision shall also be applied and the husband's claim shall be dismissed; (2) Within 1 year after the woman's delivery. Regardless of whether the woman delivers a live or stillborn child, this period is limited. (3) 6 months after the termination of pregnancy by the woman. During this period, the husband is not allowed to file for divorce if the woman terminates the pregnancy for whatever reason.
The above-mentioned period is an immutable period and the provisions on the suspension, interruption and extension of the statute of limitations do not apply. The exceptions to this period are: (1) If the wife files for divorce, she is not subject to the limitation of this period. (2) The court deems it necessary to accept the husband's divorce proceedings, and there is no such time limit. For example, during this period, there are indeed major and urgent circumstances in which the parties cannot continue to live together, one party may endanger the life and personal safety of the other party, and the woman's pregnancy is caused by adultery with another person, etc., all of which are "truly necessary".
4. Cases
Sui v. Liu, a divorce dispute case
Facts: Sui and Liu met at the end of 2017 and registered their marriage in January 2018. After marriage, the conflict between the two parties deepened. After negotiation, Liu agreed to go through the divorce procedures, but the premise was that Sui gave Liu 180,000 yuan, and Sui gave 180,000 yuan to Liu on February 28, 2018. However, due to the inconsistency of the conditions, the first divorce was not completed. After that, Liu no longer cooperated with Sui to go through the divorce procedures at the Civil Affairs Bureau. Sui sued the court and asked for a divorce. In court, Liu submitted evidence to prove that he was about 20 weeks pregnant at the time of the trial. The court held that the existing evidence was not sufficient to determine that the relationship between the husband and wife had indeed broken down, and that Liu was currently pregnant, so Sui was not allowed to file a request for divorce in accordance with the law. Sui's claim was dismissed.
5. Analysis
The court's decision was reasonable. According to the laws of the mainland, if one party requests the dissolution of the marriage relationship, he has the right to file a divorce claim, but in order to protect the interests of women and children, the law restricts the husband's right to sue for divorce within the statutory period. In this case, the court did not support Sui's claim for two reasons: first, the available evidence was insufficient to prove that the relationship between the husband and wife had broken down, and second, the woman was pregnant. It should be noted that the provisions of Article 1082 of the Civil Code are a procedural restriction and not a restriction on substantive rights. After this period has elapsed, if the husband still files divorce proceedings, the court may make a judgment on the basis of whether the relationship between the husband and wife has indeed broken down.