Article 1078
If the marriage registration authority ascertains that the parties have indeed divorced voluntarily and have reached a consensus on matters such as child support, property and debt disposition, they shall register and issue a divorce certificate.
I. Purpose of this Article
This article is about the provisions of the marriage registration authorities on the ascertainment of divorce by agreement.
II. Evolution of the Provisions
This provision is amended from the second half of Article 31 of the original Marriage Law, as amended in 2001. This article stipulates: "A divorce shall be granted if both a man and a woman divorce voluntarily. Both parties must apply for divorce at the marriage registration office. A divorce certificate is issued when the marriage registration authority ascertains that the parties are indeed willing and that the issues of children and property have been properly addressed. "The Civil Code splits Article 31 of the original Marriage Law, as amended in 2001, into two articles, namely Article 1076 and this article. In fact, it distinguishes between the two procedures of the parties reaching a divorce agreement and going through the divorce registration. This article is a provision on the procedures for registering divorce after the cooling-off period for divorce. Although the second half of article 31 of the original Marriage Law, as amended in 2001, requires the marriage registration authority to ascertain that the parties "have properly dealt with the issues of children and property", which seems to give the marriage registration authority the authority to examine the substantive review of the divorce agreement, the legislator of the former Marriage Law, as amended in 2001, only requires the marriage registration authority to ascertain whether the husband and wife who have agreed to divorce have reached an agreement on issues such as children and property, and does not intend to require the marriage registration authority to conduct a substantive examination. This is mainly due to the lack of specific criteria for judging the appropriateness of the couple's handling of children and property issues. Therefore, it is in line with the actual situation to abandon the position of "appropriate handling".
3. Interpretation of Provisions
This article regulates the procedure for registering a divorce. The procedure for registering a divorce is:
(1) Application. If the parties apply for voluntary divorce, they must apply for divorce registration in person at the marriage registration authority where one of the parties is registered. The following documents shall be issued at the time of application: 1) household registration booklet and ID card, 2) marriage certificate of the applicant, and 3) divorce agreement signed by both parties.
(2) Review. The marriage registration authorities shall conduct a strict review of the relevant materials issued by the parties. The review process is actually a process of guiding, mediating and persuading the parties to give them as much careful consideration as possible, so as to save those couples who still have the possibility of reconciliation. The most important content of the examination is to examine the documents and supporting materials issued by the parties to the divorce registration, and to inquire about the relevant circumstances, to examine whether the parties have reached an agreement on the divorce, whether there are any illegal phenomena such as fraud, coercion, and fraud, and whether the arrangements for the children and the division of property are reasonable. The parties shall provide the true information and must not conceal or deceive.
(3) Registration. After examination, the marriage registration authority found that the parties had indeed voluntarily divorced
If the parties apply for a divorce certificate after a 30-day cooling-off period, the divorce shall be registered, and the divorce certificate shall be issued, and the marriage relationship between the parties shall be formally dissolved, and the other matters registered shall also take legal effect at the same time.
4. Cases
Tang v. Lezhi County Civil Affairs Bureau, a dispute over administrative confirmation of civil administration (civil affairs).
Facts: Tang and Wang registered their marriage on December 24, 2004. On Thursday, November 17, 2011, on the day that Tang and Wang went through the divorce registration, Wang did not go to the registration site because she was pregnant and gave birth, but found a person with a similar appearance to replace Wang; The "all" in Tang's name on the divorce registration involved in the case should be "Jun". In 2015, Wang re-registered the divorce involved in the case elsewhere, and separately registered his marriage in the same year. Tang filed a lawsuit to confirm that the divorce registration was illegal and to revoke it. The court held that the divorce registration should not be revoked on the basis of the credibility of the divorce registration involved in the case or on the basis of maintaining the harmony and stability of the marriage, family, and society; 5 years have passed since Tang received the divorce certificate involved in the case and filed a lawsuit, exceeding the maximum time limit for filing a lawsuit. The court then dismissed Tang's lawsuit.
5. Analysis
The court's decision to dismiss the lawsuit is justified: First, the divorce registration cannot be revoked, because, although the motive for the divorce is not pure, the intention of the divorce is genuine; the law can only regulate people's behavior, and cannot judge people's motives and thoughts; divorce registration has the effect of publicity, and the revocation of divorce registration not only changes the identity and property relations between the parties, but also affects the identity and property relations of other people. Second, the examination of the marriage registration authority should be a formal examination, because the number of people who handle the divorce registration is large, and a lot of information involves personal privacy, so it is inconvenient for the registration authority to conduct a substantive examination, nor does it have the professional ability to conduct substantive examination. Therefore, the registration of divorce by the marriage registration authority is not unlawful. As for the misuse of the "Jun" in the names of the parties as "Jun" on the divorce certificate, according to the "Opinions of the Ministry of Civil Affairs on Several Issues Concerning the Implementation of the 'Marriage Registration Regulations'", the reasons for the inconsistency may be explained in writing, and the marriage registration authorities may reissue the marriage certificate and divorce certificate on the basis of the identity documents issued by the parties. Third, the maximum statute of limitations has expired. Of course, the fact that a marriage cannot be restored to its original state does not affect the assumption of responsibility. If there is an objection to the division of property between the parties, the parties may request another division;