The divorce cooling-off period system is undoubtedly one of the most widely concerned, controversial and discussed provisions in the Civil Code of the People’s Republic of China. On the basis of systematically introducing the divorce cooling-off period system in China, this paper objectively analyzes its impact on divorce and puts forward suggestions on its specific application in judicial practice.
Systematic Introduction to the Divorce Cooling-Off Period
I. Cooling-off Period System for Litigated Divorce
1. The well-known rule of "No acceptance of a new divorce lawsuit within six months"
The cooling-off period system for litigated divorce has long existed in China’s legislation.Paragraph 7 of Article 124 of the Civil Procedure Law of the People’s Republic of China stipulates:
"Where in a divorce case the court renders a judgment refusing a divorce or reaches a mediation for reconciliation, or in a case concerning maintenance of an adoptive relationship by judgment or mediation, if the plaintiff files another lawsuit within six months without new circumstances or grounds, the people’s court shall not accept the case."
Such restriction on a party’s right to institute a divorce lawsuit is essentially a cooling-off period system applicable to litigated divorce.
2. Cooling-off Period System for Litigated Divorce under the Background of Family Trial Reform
In recent years, with the nationwide implementation and in-depth advancement of family trial reform, a set of specific rules governing the cooling-off period for litigated divorce have been promulgated at both national and local legislative levels.
First, look at the provisions at the national level. Article 40 of the Opinions of the Supreme People’s Court on Further Deepening the Reform of Family Trial Modes and Working Mechanisms (for Trial Implementation) issued on July 18, 2018 stipulates:
"When hearing a divorce case, a people’s court may set a cooling-off period of no more than three months with the consent of both parties. During the cooling-off period, the people’s court may conduct mediation, family affairs 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."
Furthermore, the Guidelines of Guangdong Courts for the Trial of Divorce Cases (hereinafter referred to as the Guidelines) promulgated by the Higher People’s Court of Guangdong Province in July 2018 clearly divides the divorce cooling-off period into two categories.
The first is the emotional restraint cooling-off period, applicable where the parties are overly agitated and irrational during court hearings, with a term of no more than 20 days, which shall be included in the trial time limit.
The second is the emotional reconciliation cooling-off period, applicable where one party actively requests a divorce while the other refuses divorce and takes the initiative to repair the marital relationship, with a term of no more than 60 days, which shall not be included in the trial time limit.
The above-mentioned systems have basically established the institutional framework governing the cooling-off period for litigated divorce within China’s legal system.
II. Cooling-off Period System for Consensual Divorce
With the adoption of the Civil Code of the People’s Republic of China on May 28, 2020, the cooling-off period system applicable to consensual divorce was formally established.
Article 1077 of the Civil Code of the People’s Republic of China stipulates:
Within 30 days from the date the marriage registration authority receives an application for divorce registration, either party who refuses to divorce may withdraw the application from the marriage registration authority.
Within another 30 days upon the expiration of the period specified in the preceding paragraph, both parties shall personally apply to the marriage registration authority for the issuance of a divorce certificate; if no application is filed, the application for divorce registration shall be deemed withdrawn.
Since then, the divorce cooling-off period system has been fully established in China’s legal system.
Does the Cooling-off Period System Make Divorce More Difficult?
Looking at the entire institutional framework of the divorce cooling-off period, apart from the long-standing and well-established rule requiring a six-month interval between two divorce lawsuits, both the cooling-off period for litigated divorce and that for consensual divorce have sparked extensive public controversy and debate throughout their formulation and implementation.
Critics mainly argue that divorce is a personal freedom of the parties, and the artificial imposition of a cooling-off period will raise the threshold for divorce. Then, is the establishment of the cooling-off period system intended to make divorce more difficult?
I. Purposes of Establishing the Divorce Cooling-Off Period System
Put simply, the purpose of setting up the divorce cooling-off period is to prevent impulsive divorce and safeguard the stability of marriage and family. On the contrary, opponents hold that the cooling-off period restricts the freedom of divorce. From the perspective of legal professionals, marital freedom is never as simplistic as marry and divorce at will.
Immanuel Kant once said: "Freedom entails responsibility, and that is why people fear it."
Marital freedom means that one shall take responsibility for one’s own choices, bear the consequences of one’s own conduct, reap what one sows, and assume corresponding obligations while enjoying rights.
II. Applicable Conditions of the Divorce Cooling-Off Period
1. Applicable Conditions for the Cooling-Off Period in Litigated Divorce
Around the promulgation of the cooling-off period system for litigated divorce in earlier years, it triggered widespread public discussion. The core concern was whether the system would be abused and become an excuse for courts to delay trial and case closure.
Having been implemented across regions for quite a long time, judicial practice has proved such concerns unnecessary. Courts apply the cooling-off period in divorce litigation under strict restrictive conditions.
In accordance with the provisions of the Supreme People’s Court, the application of a cooling-off period requires the consent of both parties. Accordingly, there is no risk that courts will arbitrarily take the opportunity to extend the trial time limit, or that the party opposed to divorce will misuse the system to delay litigation proceedings.
During the cooling-off period, parties are not merely required to wait passively. Instead, they shall take proactive measures such as repairing marital relations, receiving psychological counseling, or participating in mediation. In short, all efforts shall be made to resolve the family dispute in a positive and constructive manner.
The cooling-off period may be terminated ahead of schedule. The Guidelines issued by the Higher People’s Court of Guangdong Province clearly stipulate:
If any party commits domestic violence, drug abuse, property transfer, concealment of minor children, intentional litigation delay or other improper acts during the cooling-off period, the people’s court shall terminate the cooling-off period promptly.
2. Applicable Conditions for the Cooling‑Off Period in Consensual Divorce
Under the provisions of the Civil Code of the People’s Republic of China, the cooling‑off period for consensual divorce applies on the following prerequisites: both spouses divorce voluntarily, proper arrangements have been made for child rearing and property disposal, and the marriage registration authority has verified the relevant circumstances.
Critics mainly raise such concern: where one spouse suffers domestic violence, could the victim, after finally obtaining the abuser’s consent to divorce, still be blocked by procedural formalities? Objectively speaking, such scenarios cannot be entirely ruled out, yet they occur at a relatively low probability, for two main reasons:
The essential nature of domestic violence lies in a controlling relationship. Most abusers resort to all manner of means — physical violence, intimidation, economic control, sexual coercion and the like — to dominate the victim. Especially when the victim files for divorce and attempts to break free from control, the abuser will spare no effort to obstruct the divorce. Consequently, consensual divorce accounts for a rather low proportion in divorce cases involving domestic violence.
From the perspective of victim protection, litigated divorce better safeguards the legitimate rights and interests of victims. In accordance with existing legal provisions and judicial practice, a victim may apply to the people’s court for a personal safety protection order to secure personal safety. Meanwhile, the court tends to protect the lawful rights and interests of the innocent victim in determining marital fault, ruling on child custody, and dividing marital joint property. In short, divorce by litigation is more conducive to protecting the rights and interests of domestic violence victims.
Suggestions on the Judicial Application of the Divorce Cooling-Off Period System
1.During the cooling-off period for consensual divorce, it is necessary to establish a system of marital and family counseling, psychological counseling and legal consultation led by civil affairs authorities and implemented by third-party professional institutions.
The purpose of establishing the divorce cooling-off period is to reconcile couples whose relationship has not broken down completely, and to allow those with irretrievably broken marriages to separate amicably. It is certainly desirable for spouses acting on impulse to regain rationality and reconcile within the 30-day cooling-off period; yet relying solely on their own efforts is likely to have limited effect.
Therefore, the author proposes launching a Divorce Cooling-Off Period Counseling Program led by civil affairs departments. Through government procurement and other means, professional services including marital and family guidance, psychological counseling and legal services can be purchased to provide professional support for parties going through the divorce cooling-off period.
For parties who intend to divorce impulsively merely due to poor handling of family relations or trivial domestic matters, marital and family counseling together with psychological counseling may help save their marriage.
For those whose marital affection has indeed broken down irretrievably with no possibility of reconciliation, psychological counseling and professional legal assistance can play a dual role. On the one hand, they help the parties step out of the psychological shadow of relationship breakdown and rebuild self-confidence. On the other hand, professional lawyers can assist them in eliminating potential legal risks in the divorce agreement in a timely manner, so as to avoid subsequent disputes over property division, child custody and visitation rights, and marital joint debts after the dissolution of marriage.
2. Making Good Use of the Cooling‑Off Period System for Litigated Divorce to Resolve Courts’ Difficulty in Determining "Irretrievable Breakdown of Marital Relationship"
As is known to all, the statutory ground for divorce stipulated in the Marriage Law of the People’s Republic of China is the irretrievable breakdown of marital relationship. In judicial practice, if the plaintiff in a divorce case cannot prove the other party’s marital fault, while the defendant claims that the marital relationship remains sound and refuses a divorce, the court often fails to uphold the plaintiff’s claim.
In such circumstances, the plaintiff may of course file a new lawsuit after waiting for the full six-month period, which is essentially a procedural means to resolve a substantive marital relationship issue. This approach is perfectly legitimate. However, a common undesirable phenomenon in practice is that many defendants insist in court on refusing divorce and maintaining affection, yet take no actual steps to repair the relationship. Some even cut off all contact with the plaintiff, merely taking advantage of procedural rules to delay proceedings.
To address this problem, the Guidelines issued by the Higher People’s Court of Guangdong Province have introduced an emotional repair plan to complement the emotional repair cooling‑off period system.
Article 30 of the Guidelines provides that where the party who opposes divorce makes a commitment to actively repair the marital relationship, the people’s court may require them to put forward a clear emotional repair plan based on the actual circumstances of the marriage.
In other words, the party refusing divorce can no longer merely pay lip service without taking practical action. Meanwhile, to prevent plans from being made but never implemented, the Guidelines further stipulate that if a party fails to actively perform its commitments and repair plan during the emotional repair cooling‑off period, such inaction shall be regarded as an unfavorable factor for the court to judge whether the marital relationship has broken down.
It follows that the emotional repair cooling‑off period is not an empty formality, nor does it make divorce more difficult. Combined with the emotional repair plan mechanism, it can instead efficiently resolve dead marriages that involve no marital fault yet are beyond reconciliation.
In conclusion, on the basis of understanding the connotation and applicable conditions of the divorce cooling-off period system, we should put it into practice, make proper use of it, and enable the system to deliver greater practical effects.