Article 1077
Within 30 days from the date on which the marriage registration authority receives the application for divorce registration, if either party is unwilling to divorce, he or she may withdraw the application for divorce registration from the marriage registration authority.
Within 30 days after the expiration of the time limit provided for in the preceding paragraph, both parties shall apply in person to the marriage registration authority for the issuance of a divorce certificate;
I. Purpose of this Article
This article is about the cooling-off period for divorce.
II. Evolution of the Provisions
This article is a new provision added to the Civil Code. In the process of compiling the Civil Code, some opinions pointed out that since the promulgation and implementation of the Decision of the Standing Committee of the National People's Congress on Amending the Marriage Law of the People's Republic of China in 2001, the problem of divorce by mutual agreement in the mainland has been relatively prominent, mainly manifested in the following aspects: First, the divorce rate has shown a continuous upward trend. Second, the proportion of divorces registered by agreement has gradually increased. Third, the divorced parties have a short marriage age, and impulsive, rash, and hasty divorces are not uncommon, and the number of them has increased. The 2003 revision of the Marriage Registration Regulations further simplified the conditions and review procedures for the parties to register their divorce with the civil affairs department, and the marriage registration department lacked the necessary mediation and restrictive measures, resulting in an increase in the number of impulsive, rash and hasty divorces, thus leading to the third peak of divorce since the founding of the People's Republic of China. It can be seen that this article is a special provision made by the legislature to solve problems that are not conducive to family stability, such as the excessively simple divorce registration procedures and the increase in frivolous divorces.
3. Interpretation of Provisions
This article provides for a cooling-off period for the registration of divorce.
Generally speaking, the divorce rate in the mainland is on the high side, which shows that the mainland has fewer restrictions on registered divorce and is more convenient for divorce. Such a relaxed policy has created an opportunity for hasty divorce, and the phenomenon of "flash marriage" and "flash divorce" is relatively serious, which is not conducive to maintaining family stability and protecting the interests of children. In the context of the codification of the Civil Code, many people suggested that a cooling-off period for divorce should be introduced, and this opinion was adopted in the legislation.
The rules for the cooling-off period for divorce stipulated in mainland China are:
(1) If both parties voluntarily divorce and apply for divorce at the marriage registration authority, and meet the conditions for divorce, the divorce certificate will not be issued for the time being, and the marriage relationship will not be dissolved immediately.
(2) The cooling-off period for divorce is 30 days, and within 30 days from the date of receipt of the divorce registration application by the marriage registration authority, if either party is unwilling to divorce, he or she may withdraw the divorce registration application to the marriage registration authority.
(3) After the expiration of the 30-day cooling-off period, within 30 days, both parties shall apply in person to the marriage registration authority for the issuance of a divorce certificate, and the marriage registration authority shall issue a divorce certificate, that is, the marriage relationship shall be dissolved.
(4) Within 30 days after the expiration of the cooling-off period, if the parties fail to apply for a divorce certificate at the marriage registration authority, the application for divorce registration shall be deemed to have been withdrawn, and no divorce will occur.
4. Cases
Divorce mediation case between Wang and Shi
Facts: Wang and Shi registered their marriage in 2004 and have a son. The relationship between the two parties has a good foundation before marriage, and they often quarrel over trivial family matters. On April 8, 2018, the parties applied to the Civil Affairs Bureau of a county in Ziyang City, Sichuan Province to register their divorce. When mediating the two parties, the family dispute collaborative resolution studio established by the county civil affairs bureau and the county people's court found that the marriage foundation of the two parties was good, and after marriage, there were conflicts due to trivial matters such as taking care of children and housework, and the relationship between the two parties was not broken, and there was still room for salvation. The county people's court and the county civil affairs bureau jointly issued a "divorce cooling-off period reminder" to both parties, giving both parties a cooling-off period of one month, that is, from April 2, 2018 to May 1, 2018. The reminder states that during this period, in principle, both parties may not apply to the civil affairs department for registration of divorce, or file a lawsuit for divorce with the people's court. However, if there is domestic violence, abuse, abandonment, transfer of property, etc., one of the parties may apply to the court or civil affairs department to terminate the cooling-off period. After the expiration of the cooling-off period, after a return visit from the studio, the two parties have reconciled.
5. Analysis
After the release of the "Opinions of the Supreme People's Court on the Establishment of a Joint Conference System for the Reform of Family Trial Methods and Working Mechanisms" and the "Opinions of the Supreme People's Court on Carrying out Pilot Work on the Reform of Family Trial Methods and Working Mechanisms", the civil affairs bureaus and courts in the pilot areas have made some useful attempts. A civil affairs bureau and a county people's court in Ziyang City, Sichuan Province, jointly issued a "Reminder of Divorce Cooling-off Period" to both parties, setting a one-month cooling-off period for the parties, which can distinguish whether it is a rational divorce or an impulsive divorce, and the effect is good. Divorce disputes not only involve the interests of the parties, but also the interests of minors, and even affect social stability, so they need to be treated with caution. Several years of judicial practice have proved that the setting of a cooling-off period for divorce can achieve good social effects. Article 1077 of the Civil Code provides for a cooling-off period for the registration of divorce, which is a legislative progress.