Article 1079 of the Civil Code stipulates that if one of the spouses requests a divorce, the relevant organization may conduct mediation or directly file a divorce lawsuit with the people's court.
People's courts hearing divorce cases shall conduct mediation; If the relationship has indeed broken down and mediation fails, the divorce shall be granted.
In any of the following circumstances, if mediation fails, a divorce shall be granted:
(1) bigamy or cohabitation with others;
(2) Committing domestic violence or abusing or abandoning family members;
(3) Having gambling, drug abuse, or other vices that have been repeatedly taught;
(4) They have been separated for two years due to emotional discord;
(5) Other circumstances that lead to the breakdown of the relationship between husband and wife.
Where one party is declared missing and the other party initiates divorce proceedings, the divorce shall be granted.
Where, after a people's court has ruled that divorce is not permitted, the parties have been separated for one year, and one party initiates divorce proceedings again, the divorce shall be granted.
The parties have been separated for two years due to emotional discord
Mediation is ineffective
The court shall grant the divorce
However, the party who initiated the dissolution of the marriage
The corresponding burden of proof shall be borne accordingly
In practice, simply stating the facts of separation to the court often fails to meet the standard of proof prescribed by law, and a simple statement may lead to the court's inability to determine or refuse to recognize the existence of the fact of separation between the parties, so that the rule of "divorce granted after separation for more than two years cannot be applied". Therefore, the parties in a state of separation should pay attention to collecting evidence during the period of separation, and in judicial practice, such as witness testimony, lease contracts for finding another residence, and letters received at the new address, can all be used as evidence to prove separation.
Separate beds are not divided into rooms, and it is difficult for the court to determine that it is separation
Due to financial constraints, most couples own only one place to live, or cannot afford to live alone outside the home for a long time. Therefore, after the husband and wife are not in harmony, they have different beds in the same room and eat separately. When one party initiates divorce proceedings, if the other party does not admit the fact of separation, and the cohabitation of the husband and wife is a purely private matter, it is difficult for others to testify to this, and in the absence of other evidence to support it, the court will generally not accept the separation claim.
Couples living in different places, not necessarily
"Separation" in the legal sense
Some husbands and wives do not live in the same place because of employment, study and other reasons, and the residence of husband and wife in a geographical sense in a different place is not necessarily a legal separation, and the legal separation is based on the fact that the husband and wife do not live together because of their discord and do not fulfill their marital obligations to each other. However, if it can be proved that the husband and wife living in a different distance are separated due to emotional discord, the court may find that the husband and wife are separated in the legal sense if the relevant evidence is sufficient to prove that the living in the different places is due to emotional discord. For example, one party submits documentary evidence such as letters, chat evidence, and other relevant evidence sufficient to prove that the husband and wife are not in harmony.
Common evidence that can prove the separation of husband and wife
1. The Housing Lease Contract signed by one party living outside the home;
2. The "Separation Agreement between Husband and Wife" signed by both parties must be recognized by the other party if it is an oral agreement;
3. A written separation document issued by one party to the other party, such as relevant documents by courier. When submitting such materials, the court may conduct a review from the name of the materials (such as indicating "separation document" in the remarks column), the nature of the materials (focusing on the substance of the materials), whether there are mailing vouchers, etc., and at the same time shall accurately calculate the time of separation of the husband and wife in conjunction with the relevant materials;
4. Correspondence between the two parties that can prove the fact of separation due to emotional discord;
5. Personal witnesses, such as the testimony of mutual friends or relatives of both parties, but because the witness often has an interest in one of the parties and the separation is a "private matter" of the husband and wife, it is difficult for the court to accept the testimony of a single witness, and it should be supplemented by other evidence to prove it.
Separated for two years, marital relationship
Is it automatically dismissed?
Separation (separation) for 2 years is only a way to judge the breakdown of the relationship between husband and wife, without going through the statutory divorce procedure, the marriage relationship between the two parties still exists, and if one of the parties marries a third person, it is also suspected of constituting the crime of bigamy.
Source: Xi'an Intermediate People's Court WeChat official account