Does the divorce cooling-off period system make divorce more difficult?
The divorce cooling-off period system is arguably one of the provisions in the Civil Code of the People's Republic of China that has attracted the widest public attention and sparked the most controversies and discussions. On the basis of systematically introducing the divorce cooling-off period system in China, this article intends to objectively analyze the impact of the system on divorce, and put forward suggestions for its specific application in judicial practice.
Systematic Introduction to the Divorce Cooling-Off Period
I. Litigation Divorce Cooling-Off Period System
1. The Familiar System of "No Acceptance of Re-filing for Divorce Within 6 Months"
The system of litigation divorce cooling-off period has long existed in China's legislation. According to Paragraph 7 of Article 124 of the Civil Procedure Law of the People's Republic of China: "For divorce cases where the judgment refuses divorce or mediates a reconciliation, and cases where the judgment or mediation maintains the adoption relationship, if the plaintiff files another lawsuit within six months without new circumstances or new reasons, the lawsuit shall not be accepted." This restriction on the parties' right to file for divorce is essentially a type of litigation divorce cooling-off period system.
2. Litigation Divorce Cooling-Off Period System Under the Background of Family Trial Reform
In recent years, with the promotion and deepening of family trial reform across the country, a series of specific systems regarding the litigation divorce cooling-off period have been issued at both the national and local legislative levels.
First, let’s look at the national-level provisions. Article 40 of the Opinions of the Supreme People's Court on Further Deepening the Reform of Family Trial Methods and Working Mechanisms (Trial), issued on July 18, 2018, stipulates: "When a people's court hears a divorce case, it may set a cooling-off period of no more than 3 months with the consent of both parties. During the cooling-off period, the people's court may carry out mediation, family investigation, psychological counseling and other work according to the circumstances of the case. Upon the expiration of the cooling-off period, the people's court shall notify both parties."
For another example, the Guidelines for Guangdong Courts in Hearing Divorce Cases (hereinafter referred to as the "Guidelines"), issued by the Higher People's Court of Guangdong Province in July 2018, clearly divides the divorce cooling-off period into two types: one is the "emotional restraint cooling-off period", which may be applied when the parties are too emotional and irrational during the court hearing, with a duration of no more than 20 days, which is included in the trial time limit; the other is the "emotional repair cooling-off period", which may be applied when one party actively requests a divorce while the other party disagrees and takes the initiative to repair the relationship, with a duration of no more than 60 days, which is not included in the trial time limit.
The above systems have basically constructed the institutional framework of the litigation divorce cooling-off period in China's legal system.
II. Consensual Divorce Cooling-Off Period System
With the adoption of the Civil Code of the People's Republic of China on May 28, 2020, the cooling-off period system in the process of consensual divorce was officially established.
Article 1077 of the Civil Code of the People's Republic of China stipulates: "Within thirty days from the date on which the marriage registration authority receives the application for divorce registration, either party who is unwilling to divorce may withdraw the application for divorce registration from the marriage registration authority.
Within thirty days after the expiration of the period specified in the preceding paragraph, both parties shall personally go to the marriage registration authority to apply for the issuance of a divorce certificate; if no application is made, it shall be deemed that the application for divorce registration has been withdrawn."
Since then, the divorce cooling-off period system in China's legal system has been fully established.
Does the Cooling-Off Period System Make Divorce More Difficult?
Looking at the entire divorce cooling-off period system, in addition to the long-implemented and deeply rooted provision that there shall be an interval of six months between two divorce lawsuits, both the litigation divorce cooling-off period system and the consensual divorce cooling-off period system have aroused extensive social controversies and discussions during their deliberation and promulgation.
The voices of doubt mainly focus on the view that divorce is the freedom of the parties, and artificially setting a cooling-off period will increase the difficulty of divorce. Then, is the purpose of establishing the cooling-off period system to increase the difficulty of divorce?
I. The Purpose of Establishing the Divorce Cooling-Off Period System
To put it simply, the purpose of establishing the divorce cooling-off period is to prevent impulsive divorce and maintain the stability of marriage and family. Correspondingly, the opposing opinions mainly hold that the cooling-off period restricts the freedom of divorce. However, from the perspective of legal professionals, the so-called marital freedom is not as simple as "marrying and divorcing at will". Immanuel Kant said, "Freedom means responsibility, which is why people are afraid of it." Marital freedom should mean that whoever chooses shall be responsible, whoever acts shall bear the consequences, whoever sows the cause shall reap the fruit, and whoever enjoys the rights shall bear the obligations.
II. Application Conditions of the Divorce Cooling-Off Period
1.Application Conditions for the Litigation Divorce Cooling-Off Period
Earlier, before and after the introduction of the litigation divorce cooling-off period, it also aroused extensive social discussions. Among them, the focus mainly centered on whether the cooling-off period would be abused as an excuse for courts to delay trial and case conclusion. Today, the litigation divorce cooling-off period system has been implemented in various places for a relatively long time, and practice has proved that the previous concerns were unnecessary. Courts have strict restrictive conditions for the application of the cooling-off period during litigation.
According to the provisions of the Supreme People's Court, the application of the cooling-off period requires "the consent of both parties", so there will be no situation where the court arbitrarily uses it as an excuse to extend the trial time limit, or where the party who disagrees with the divorce uses it to delay the litigation.
During the cooling-off period, all parties do not just wait for the time to pass, but take positive measures such as emotional repair, psychological counseling, or mediation. In a word, they should do positive work around resolving the family dispute.
The cooling-off period can be terminated. The Guidelines of the Higher People's Court of Guangdong Province clearly stipulate: "If a party commits domestic violence, drug use, transfer of property, hiding of minor children, intentional delay of litigation, or other circumstances during the cooling-off period, the people's court shall promptly terminate the cooling-off period."
2. Application Conditions for the Consensual Divorce Cooling-Off Period
According to the provisions of the Civil Code, the conditions for the application of the consensual divorce cooling-off period are that both men and women voluntarily divorce, have properly handled the issues of children and property, and have been verified by the marriage registration authority. In response, the voices of opposition mainly focus on: if one spouse is subjected to domestic violence, will there be a problem that the victim finally obtains the abuser's consent to divorce but encounters procedural obstacles? Objectively speaking, such situations cannot be completely ruled out, but the probability of their occurrence is not high. There are two reasons for this:
The underlying logic of domestic violence is a control relationship. Most abusers will try every means to control the victim through various means such as violence, threats, economy, and sex. Especially when the victim proposes divorce and attempts to get rid of the abuser's control, the abuser will use all methods to block it. Therefore, objectively speaking, for divorce cases involving domestic violence, the proportion of consensual divorce is not high.
From the perspective of protecting the victim, the litigation divorce method is more conducive to protecting the legitimate rights and interests of the victim. According to the current legal provisions and relevant judicial practice, through litigation, the victim can apply to the people's court for a personal safety protection order to protect their personal safety; at the same time, the people's court will tend to protect the legitimate rights and interests of the innocent victim in terms of determination of divorce fault, attribution of child custody, and division of joint property. It can be said that divorcing through litigation is more beneficial to protecting the rights and interests of victims of domestic violence.
3. Suggestions on the Judicial Application of the Divorce Cooling-Off Period System
(1) During the consensual divorce cooling-off period, a marriage and family relationship counseling, psychological and legal consultation system led by civil affairs departments and implemented by third-party professional institutions should be constructed.The purpose of establishing the divorce cooling-off period is to make those whose feelings have not broken down reconcile, and those whose feelings have really broken down separate amicably. If both spouses do have the situation of impulsive divorce, it is certainly a good thing that they can regain their senses and reconcile within the 30-day cooling-off period; but relying entirely on their own strength, its effect is probably limited.
Therefore, the author suggests that a "divorce cooling-off period counseling program" led by civil affairs departments can be established. Through government procurement and other methods, services from professional institutions such as marriage and family relationship counseling, psychological counseling and legal services can be purchased to provide professional support for parties in the divorce cooling-off period. For those parties who really divorce impulsively because they are not good at handling family relationships or because of family trivialities, they can try to save their marriage through marriage and family relationship counseling and psychological counseling; for those parties whose marital feelings have really completely broken down and there is no possibility of reconciliation, they can also get out of the psychological shadow of broken feelings and regain confidence with the help of psychological counseling and professional lawyers. On the other hand, professional lawyers can assist parties in timely eliminating potential legal risks in the divorce agreement, so as to avoid conflicts and disputes between parties over property division, child support and visitation, joint marital debts and other issues after the dissolution of the marital relationship.
(2) Make good use of the litigation divorce cooling-off period system to solve the court's difficulty in determining "the marital relationship has really broken down"
As we all know, the divorce condition stipulated in China's Marriage Law is "the marital relationship has really broken down". In practice, if the plaintiff in a divorce case cannot prove that the other party has marital faults, and the other party claims that the marital relationship is still good and disagrees with the divorce, the plaintiff's claim is often difficult to be supported by the court. In response, the plaintiff can certainly wait for six months to sue again, which is regarded as solving the substantive marital relationship problem through procedural methods. This approach is certainly understandable, but what is not widely accepted in practice is that although the defendant in many cases claims to disagree with the divorce and claims that both parties still have feelings in court, in fact, they do not take any specific measures to recover the relationship, and even do not contact the plaintiff at all, purely using the procedure to delay time.
To solve this problem, the Guidelines of the Higher People's Court of Guangdong Province proposed a supporting "emotional repair plan" system in the "emotional repair cooling-off period" system. Article 30 of the Guidelines stipulates that for the party who disagrees with the divorce and "makes a commitment to take the initiative to repair the relationship, the people's court may require him/her to put forward a clear emotional repair plan in combination with the actual situation of the marital relationship". In other words, for the problem mentioned by the author above, the party who disagrees with the divorce can no longer "only talk but not act"; at the same time, to prevent "making a plan but not implementing it", the Guidelines further stipulate that "if a party fails to actively fulfill the emotional repair commitment and plan during the emotional repair cooling-off period, it shall be regarded as an unfavorable factor for the people's court to determine whether the marital relationship has broken down."
Thus, the "emotional repair cooling-off period" will not be set in vain, nor will it make divorce more difficult. Combined with the "emotional repair plan" system, it may instead efficiently solve those dead marriages that have no marital faults but cannot be recovered.
In summary, on the basis of understanding the connotation and application conditions of the divorce cooling-off period system, let us practice together and make good use of it to make the system play a greater role.