Separated and untouched, I thought that each other's marriage was coming to an end, and one of the parties also wanted to divorce as soon as possible so that he could return to a free life. But the other party has been refusing to divorce, and has been dragging on not signing the divorce agreement, which makes him very anxious.
Paragraph 2 of Article 1079 of the Civil Code stipulates that the people's court shall conduct mediation when hearing divorce cases;If the relationship has indeed broken down and mediation fails, the divorce shall be granted. It follows that the criterion for the court to grant or not to grant a divorce is whether the relationship between the husband and wife has indeed broken down.
The relationship between husband and wife is the foundation of the marital relationship, and the occurrence of divorce disputes is, in the final analysis, a change in feelings. If the relationship has indeed broken down and it is difficult to reconcile, then the dissolution of the marriage relationship will be a blessing for both parties and for society. If legal means are used to forcibly maintain a marriage relationship that has indeed broken down, it is contrary to the principle of freedom of marriage.
It should be noted that the legal condition for granting a divorce is that the court does not rely on whether the parties have breached their obligations or caused the dissolution of the marital relationship, but on whether there is a possibility that the marital relationship will continue to be maintained.
Therefore, when suing for divorce for the first time, unless there is sufficient evidence to prove the existence of the statutory circumstances stipulated in Article 1079 of the Civil Code, the divorce will not be granted for the first time in practice. At this time, the appeal is not of much significance, and the court of second instance will basically uphold the judgment of the first instance.
However, if a divorce lawsuit is filed with the court for the second time, according to article 127 of the Civil Procedure Law, if there are no new circumstances or new grounds, and the plaintiff files another lawsuit within six months, the court will not accept it. It should be noted here that if there are new circumstances or new reasons, the six-month limit may be waived, but evidence must be provided to prove the existence of new circumstances and new reasons, such as the occurrence of new domestic violence after the court ruled that the divorce was not allowed. Of course, if the defendant in the first lawsuit divorce files a divorce lawsuit as a plaintiff in the second lawsuit, there is also no six-month limit, but this is not the same as the issue discussed in this article and will not be discussed in detail here.
Divorce mediation refers to the mediation of divorce disputes by the court when the other party to the marriage does not agree to the divorce. Through mediation, the court fully listens to the opinions of both parties, understands the reasons for the parties' divorce, the focus of the parties' differences, and whether there is a possibility of reconciliation, and then does a good job of the parties' ideological work according to the specific circumstances of the dispute, so as to settle the dispute and handle it properly. After mediation, if the parties agree to reconcile, the plaintiff withdraws the lawsuit or records the reconciliation agreement, and the divorce proceedings can be terminated. If a divorce agreement is reached, the court will prepare a mediation document in accordance with the mediation agreement, and after both parties sign and receive it, it will take legal effect and the marriage relationship will be dissolved.
In divorce judgments, "the relationship has truly broken down" is the standard for the people's court to decide on divorce, and the people's court shall make a judgment in accordance with law in divorce cases where mediation is ineffective.
The legal grounds for deciding a divorce are divided into basic reasons and specific reasons, and the basic cause is that "the relationship between the husband and wife has indeed broken down", which means that the relationship between the husband and wife no longer exists, and it is no longer possible to expect reconciliation between the husband and wife. The criteria for the objective manifestation of the breakdown of the relationship between the husband and wife are: First, from the subjective criterion, that is, the husband and wife no longer live together, and it is impossible to expect to return to living together, and a comprehensive analysis is made from the aspects of the marriage foundation, the relationship after marriage, the reasons for divorce, the current situation of the relationship between the husband and wife, and whether there is a possibility of reconciliation. Second, from the objective criterion, mediation is ineffective.
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