Where one of the spouses requests a divorce, the relevant organizations 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.
Netizen consultation:
How one of the spouses should file a divorce lawsuit if he or she becomes incapacitated
Lawyer answers:
"Persons without capacity for civil conduct" refers to natural persons who do not have the capacity to conduct civil juristic acts by their own independent expressions of will. Minors under the age of eight are persons with no capacity for civil conduct;Adults who are unable to recognize their own conduct and minors over the age of eight who are unable to recognize their own conduct are persons with no capacity for civil conduct. In the marital relationship of a person without civil capacity, regardless of whether the person proposing the marriage is a person without civil capacity, the dissolution of the marriage relationship can only be resolved through litigation.
Although a person without capacity for civil conduct does not have the capacity for litigation and is unable to accurately express his wishes, his guardian may litigate on his behalf in litigation. The guardian of an adult person without capacity for civil conduct is first the spouse, followed by the parents or adult children. In divorce proceedings, the role of the spouse has changed to the opposing party, and the spouse may file a lawsuit to determine that the citizen is incapacitated for civil conduct, or a lawsuit to change the guardian, to remove his guardian and the legal person, and the guardian other than his or her spouse will act as the legal person.
Lawyer adds:
After one spouse becomes a person without capacity for civil conduct, and the other spouse has any of the following circumstances, the other persons with guardianship qualifications may request that their guardianship qualifications be revoked and a new guardian be appointed in accordance with law. After the change, the guardian may file a divorce lawsuit against the party who has no capacity for civil conduct
1. Carrying out acts that seriously harm the physical and mental health of the ward;
2. Neglecting to perform guardianship duties, or being unable to perform guardianship duties and refusing to entrust some or all of the guardianship duties to others, resulting in the ward being in a state of distress;
3. Carrying out other acts that seriously infringe upon the lawful rights and interests of the ward.
Legal basis] Civil Code of the People's Republic of China
Article 1079:Where one of the husband and wife requests a divorce, the relevant organization may conduct mediation or directly initiate divorce proceedings in 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 another person;
2) Committing domestic violence or abusing or abandoning family members;
3) Having bad habits such as gambling and drug addiction that they have repeatedly been taught;
4) 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.
Profile of lawyer Chen Xiaoli
Lawyer of Liaoning Dingji Law Firm, practicing for more than ten years, has been involved in tort damages, marriage and inheritance disputes, housing sales and other contract disputes, which has greatly protected the rights and interests of the parties.
Defending defendants in bribery and malfeasance, smuggling and drug-related crimes, theft and fraud, etc., providing practical guarantees to ensure that defendants obtain the best benefits.