Article 1081
The spouse of a serviceman on active duty who requests a divorce shall obtain the consent of the serviceman, except where one of the servicemen is seriously at fault.
I. Purpose of this Article
This article is a special provision for divorce of servicemen on active duty.
II. Evolution of the Provisions
It is a tradition of mainland marriage legislation to give special protection to the marriages of servicemen on active duty. The original Marriage Law of 1950 made special provisions on the divorce of the families of revolutionary soldiers. Article 19 of the Law stipulates: "If a revolutionary serviceman on active duty has a correspondence relationship with his family, his spouse shall file for divorce with the consent of the revolutionary soldier. From the date of promulgation of this Law, if a revolutionary soldier has no correspondence with his or her family for two years, and his spouse requests a divorce, the divorce may be granted. If a revolutionary soldier has had no correspondence with his or her family for more than two years before the promulgation of this Law, and has had no correspondence with his or her family for one year after the promulgation of this Law, his spouse may also grant a divorce if he or she requests a divorce. ”
Article 26 of the original Marriage Law of 1980 stipulates: "The spouse of a serviceman on active duty must obtain the consent of the serviceman if he or she wishes to divorce. "Because of the ease of communication in a peaceful environment, the article does not provide for divorce after years of non-communication. With regard to servicemen on active duty filing for divorce, in accordance with the provisions of the former "Interim Regulations of the General Political Department of the Chinese People's Liberation Army on the Implementation of the 'Marriage Law of the People's Republic of China' by the Army" promulgated on 29 December 1980, servicemen on active duty should adopt a serious and prudent attitude when filing for divorce, or they should not violate laws and regulations and not corrupt morality. A person who applies for divorce must obtain the consent of the political organ at or above the regimental level of the unit to which he belongs, and issue a certificate before he can register his divorce with the local marriage registration authority or file a divorce lawsuit with the people's court.
Article 59, paragraph 2, of the National Defence Act of 1997 stipulates: "The State shall take effective measures to protect the honour and personal dignity of servicemen on active duty and shall provide special protection for the marriages of servicemen." The Penal Code, amended in the same year, also provides for the crime of sabotage of military marriages. This fully shows that the implementation of special protection for military marriages is a consistent policy of the party and the state, and is an important principle to be followed in the legislation on military marriages, and this policy and principle has not changed to this day.
Article 33 of the former Marriage Law, as amended in 2001, stipulates that "the spouse of a serviceman on active duty must obtain the consent of the serviceman if he or she wishes to divorce, unless one of the servicemen is seriously at fault." When the law was amended, the Standing Committee of the National People's Congress (NPC) added a provision after "the spouse of a serviceman on active duty must obtain the consent of the serviceman if he or she requests a divorce." The proviso in this article, "except where one of the servicemen is seriously at fault", is a new provision added to the original Marriage Law, as amended in 2001. While protecting the marriage rights of servicemen, the law also pays attention to the protection of the marriage rights of the non-military party, which reflects the consistency of rights and obligations. When a serviceman on active duty has committed a major fault that has led to a breakdown in the relationship between the husband and wife, the spouse may request a divorce without the consent of the serviceman.
This article is amended on the basis of Article 33 of the original Marriage Law, which was amended in 2001, and this article changes the word "shall obtain" to "shall be obtained", which has the formal meaning of the uniform terms used in the code.
3. Interpretation of Provisions
This article is a restrictive provision on divorce requests by spouses of active military personnel.
This restriction on the right to divorce restricts substantive rights, that is, the spouse of an active military member can sue for divorce, but as long as the military member is not grossly at fault and the military party does not agree to the divorce, the court cannot grant the divorce. The limitation of the right to request divorce is determined by the identity of the spouse of the non-military party, and the party suing is a non-military and the other party is a military member, that is, it is subject to this provision. Divorce proceedings between military personnel, divorce proceedings between military personnel against non-military personnel, are not subject to this provision.
Military personnel refer to cadres and soldiers who are on active duty in the Chinese People's Liberation Army and the Chinese People's Armed Police Force and have military status, excluding employees without military status, servicemen who have been transferred, discharged, retired, or retired, and revolutionary disabled servicemen who have already retired, as well as officers, soldiers, and servicemen who are serving sentences in militia organizations or reserves.
The major faults of the military personnel include: bigamy or cohabitation with others, domestic violence or abuse or abandonment of family members, gambling and drug addiction and repeated remorse, and other major offenses such as rape of women, adultery with underage girls, soliciting prostitution, and other illegal and criminal acts.
The rules to be followed by the courts in hearing such cases are:
(1) If the spouse of a serviceman on active duty files a request for divorce, he or she must obtain the consent of one of the servicemen before a divorce can be granted.
(2) If a serviceman on active duty does not agree to the divorce, in principle, a judgment cannot be made to grant the divorce.
(3) If a serviceman on active duty has a major fault and the non-military party requests a divorce, his or her rights are not restricted, and the court shall make a judgment on the basis of whether there are any reasons for divorce prescribed by law.
4. Cases
Zhang Moumou v. Luo Moumou, a divorce dispute case
Facts: Luo Moumou is an active-duty soldier. In 2007, Zhang Moumou and Luo Moumou established a relationship after being introduced to each other, and registered their marriage in 2010. After marriage, Zhang Moumou had a conflict with Luo Moumou's mother due to trivial matters in life, which affected the relationship between Zhang Moumou and Luo Moumou. On December 23, 2013, Zhang Moumou sued the court, requesting the dissolution of the marriage. The court of first instance held that the marriage foundation of the parties was relatively good and the relationship had not yet broken down. In addition, according to article 33 of the Marriage Law, servicemen on active duty who do not agree to divorce do not meet the conditions for granting divorce in military divorce cases. A judgment was granted against the divorce. The court of second instance rejected the appeal and upheld the original judgment.
5. Analysis
The court ruled that the divorce was not granted. Compared with ordinary marriages, military marriages do have their peculiarities. Whether it is in war or peacetime, military personnel shoulder the important mission of defending national security, and cannot pay normally for their families like ordinary people, and the protection of military marriages is the need to maintain the stability of the army. But at the same time, for the spouses of military personnel, it is a derogation from the freedom of marriage and sexual rights, because of the professional nature of military personnel, military spouses have more obligations than spouses of ordinary families, and it is the entire population that benefits. Therefore, in a case where a non-military party applies for divorce, if the military party is seriously at fault, the court should fully consider the legitimate rights and interests of the non-military party. In this case, Zhang argued that Luo's mother and Luo Moumou himself had verbally insulted and beaten her for a long time, but there was no evidence to prove that it did not meet the circumstances of "the military party has a major fault", and Luo Moumou did not agree to the divorce, so the court ruled that the divorce should not be granted.