How to understand the legal requirement of separation for two years due to emotional incompatibilit

The first view is that, with regard to the two years of separation provided for in Article 32, Paragraph 3, Subparagraph 4 of the Marriage Law, these two years should refer to continuous separation, during which they lived together, and the time of separation should be counted from the date of the last separation. In this case, Hu and Pan had been separated for less than two years, which did not meet the requirements of Article 32 of the Marriage Law and should not be granted a divorce.

The second view is that: according to the provisions of Article 32, Paragraph 3, Item 4 of the "Marriage Law", if the husband and wife have been separated for two years due to emotional discord, the divorce shall be granted after mediation is invalid In this case, Hu and Pan have been separated for more than 4 years, indicating that the relationship between the husband and wife has indeed broken down, and the divorce should be granted

The third view is that the provisions of Article 32, Paragraph 3, Item 4 of the Marriage Law should be analyzed in light of the actual situation, and that continuous separation for more than two years does not necessarily mean that the relationship between the husband and wife has indeed broken down; During the period of separation, although there is a resumption of cohabitation, it does not necessarily mean that the husband and wife are reconciled As far as I am concerned, Hu and Pan have been separated for more than 4 years, and although they have resumed cohabitation, the relationship between the husband and wife has deteriorated again during the period of cohabitation, and if mediation fails, a divorce should be decided Comment The author is more inclined to the third point of view.

In the author's opinion, when deciding a divorce based on the criterion of separation, it should be handled in accordance with the provisions of Article 32 of the Marriage Law, but at the same time, it should also take into account all aspects of the parties' circumstances to determine whether the relationship between the husband and wife has indeed broken down, and it should be noted that the reason for the separation of the parties is due to the discord between the husband and wife, not due to other factors of life, study and work. In addition, there is the possibility of reconciliation between the husband and wife, and only if these two conditions are met at the same time can the divorce be considered.

How is a legal separation of two years determined? Nowadays, there are many cases where couples live separately for a long time, but not all separations constitute legal separation. The so-called separation of husband and wife is usually a situation in which the husband and wife terminate their common life and establish their own lifestyles on the premise of continuing their relationship as husband and wife.

If a situation like this lasts for two years, the husband and wife can legally be considered separated. If the separation of husband and wife is caused by subjective reasons, such as the foundation of the marriage is not solid, and the relationship between husband and wife has not been cultivated after marriage and the husband and wife have been separated for two years, the legal grounds for divorce of "separation due to emotional discord" are met. How to calculate the "two-year" period of "two years of separation due to emotional discord":

1. From the day after the last cohabitation jointly agreed by the husband and wife who filed for divorce to the day on which the divorce proceedings were filed (the petition was submitted to the people's court); 2. The time of separation shall be counted consecutively. If the separation is followed by cohabitation, the time of cohabitation and separation shall be recalculated from the time of cohabitation and separation, and the time of separation before and after shall be terminated, that is, the time of separation shall be counted consecutively, and the time of several separations before and after shall not be counted cumulatively. Legal basis:

Article 32 of the Marriage Law of the People's Republic of China: One of the legal grounds for a husband and wife to file for divorce is "separation for two years due to emotional discord."

It's literal.

1) "Separation due to emotional discord for two years" has two elements, and these two elements must be met at the same time in order to constitute a statutory divorce: 1. Separation due to emotional discord; 2. The period of separation is two years. (2) Constituent elements of separation:

a.Objectively, the husband and wife living together are abolished, and the two parties live completely separately; b.Subjectively, one or both parties have the intention to separate.

Note: The separation of two parties does not constitute separation, and the separation of one or both parties due to work or other objective reasons does not constitute separation in the sense of statutory separation. In practice, the parties can sign a separation agreement and actually perform it to prove the fact of separation.

Civil Code of the People's Republic of China

Article 1079.

Paragraphs 1, 2 and 3.

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.

In any of the following circumstances, if mediation fails, a divorce shall be granted:

1) Cohabitation with another person who is bigamy or has leaked the key to divination;

2) Committing domestic violence or abusing or abandoning family members;

3) Having bad habits such as gambling and drug addiction that they have repeatedly taught and not changing;

4) Due to emotional discord, the manuscript has been resided for two years;

5) Other circumstances that lead to the breakdown of the relationship between husband and wife.

Legal analysis: The so-called separation refers to the artificial interruption of the common economic and sexual life between the husband and wife, as well as mutual support and spiritual comfort. If the husband and wife have been separated for 2 years due to emotional discord, the husband and wife have been separated for a long time due to emotional discord, and the two parties have not lived together and do not fulfill their obligations to each other, so that the relationship between the husband and wife actually exists in name only, so the husband and wife have been separated for 2 years, marking the breakdown of the relationship between the husband and wife.

Legal basis: Article 1079 of the Civil Code of the People's Republic of China Where one of the husband and wife 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 circumstances listed below, where 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, drug abuse, remorse, and envy that they have repeatedly been 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.

If, after the people's court has ruled that the divorce is not allowed, the parties have been separated for one year, and one party files a divorce lawsuit again, the divorce shall be granted.

"Separation due to emotional discord for two years" refers to the legal grounds for divorce raised by the husband and wife due to separation, which consists of two necessary elements and is indispensable: due to emotional discord; Those who have been separated for two years. There are two types of couples separating:

The first is due to objective reasons. If the husband and wife work in two cities separately and do not have the conditions for cohabitation, the situation of separation of the husband and wife is not due to emotional discord, and even if the husband and wife have been separated for two years, it does not meet the statutory grounds for divorce of "separation due to emotional discord". The second is due to subjective reasons.

If the foundation of the marriage is not solid, and the husband and wife have not cultivated their affection after marriage and have been separated for two years, it meets the legal grounds for divorce and marriage due to emotional discord. The "two-year period" of "two years of separation due to emotional discord" is calculated from the day after the last cohabitation agreed by the divorced parties to the date of filing the divorce lawsuit (filing the complaint with the people's court) for two consecutive years.

1. The original reason for separation is the disharmony between the husband and wife, not the separation of the two places due to work, study and other reasons, and the housing problem leads to the inability of the husband and wife to live together;

2. Separation emphasizes that the husband and wife do not fulfill their marital obligations, rather than unilaterally failing to fulfill their family obligations;

3. If the husband and wife have been separated for two years, but the relationship between the husband and wife has not really broken down or there is still a possibility of reconciliation through mediation, it cannot be considered that the conditions for granting divorce have been met.

Whether the husband and wife are separated or not, and whether they have been separated for two years, are not necessary conditions for the parties to request a divorce. If the relationship between the husband and wife does break down and mediation fails, divorce shall be granted in accordance with the law, even if there is no fact of separation or the separation has been less than two years.

1. Can I get divorced after two years of separation?

Two years of separation does not nece divorce. Separation for two years is only one of the conditions for the court to grant a divorce, and it is not an automatic divorce, and the husband and wife need to negotiate a divorce or a divorce by litigation. In addition, it should be noted that the husband and wife must be separated due to emotional discord, not due to work, study, housing, etc.

According to the relevant laws and regulations, if one of the husband and wife requests a divorce, the relevant organization may mediate or directly file a divorce lawsuit with the people's court. People's courts hearing divorce cases shall conduct mediation; If the relationship breaks down and mediation fails, the divorce shall be granted.

2. Can I automatically divorce after two years according to the relevant regulations?

There will be no automatic divorce. The marriage relationship of the husband and wife must be registered and obtained by the Civil Affairs Bureau before it can be concluded, and cohabitation cannot lead to the legal relationship between the parties. Like marriage, divorce must also be handled in accordance with the procedures prescribed by law, either by registering the divorce with the Civil Affairs Bureau or filing a lawsuit for divorce with the court.

Some couples often think that they can automatically divorce after two years of separation, because they misunderstand the provision of the Civil Code that "after two years of separation due to emotional discord, it can be considered that the relationship between the husband and wife has indeed broken down".

First of all, two years of separation is not a ground for divorce. In life, there are many reasons why couples are separated, such as working in different places, etc. Therefore, it is not the mere separation that is grounds for divorce.

According to the law, a separation of two years must be due to emotional discord before it can be used as a ground for divorce.

Secondly, the separation of two years due to emotional discord is only a factor considered by the court in determining whether the divorce is granted to the parties, and the court must judge whether the relationship between the husband and wife has broken down on the basis of the entire case.

Article 1079 of China's Civil Code (effective from January 1, 2021) stipulates that if you have been separated for two years due to emotional discord, it is only a reason and circumstance for divorce, and it is not automatic divorce as long as you have been separated for two years.

1) Separation must have - emotional discord, separation of residence, non-fulfillment of marital obligations.

At present, the separation recognized by the court refers to the fact that the husband and wife live separately due to discord between the husband and wife, and do not perform the obligations between the husband and wife (including sexual life, etc.). Although they don't live together, Clan Wuno is not because of emotional discord, but because of other reasons. Separation is not a legal separation due to the place of work, or for other objective reasons.

For example, if one party works in Beijing and the other works in Shanghai, and one party files for divorce and has been separated for two years, it is difficult for the court to determine that the separation under the Civil Code is due to the factor of the place of work.

2) Whether the husband and wife live in different places for many years is not considered separation in the legal sense.

Many people do not understand whether a husband and wife are legally separated if they live in different places for many years. Of course, it does not necessarily count as legal cohabitation. Legal separation is marked by the fact that the spouses do not have a sexual life together because of emotional discord and do not fulfill their marital obligations to each other.

3) Whether cohabitation in Orange Town and failure to perform obligations are considered separation in the legal sense.

If you live in the same apartment and do not sleep in the same bed, but the relationship is not harmonious, and you do not fulfill the mutual obligations between husband and wife, is it considered separation in the legal sense? In this case, it is difficult for the judge to determine cohabitation at the time of **time**, for example, once one party denies sleeping in separate beds, the other party is not able to provide evidence to prove the fact of bed separation or the fact that there is no sexual life, so it is not determined that it is separated and shouted.

How long does it take for a couple to be separated and the court can grant a divorce:

Usually the couple has been separated for two years, but this is not the only condition. As long as the relationship between the husband and wife has indeed broken down, the divorce shall be granted.

The Civil Code stipulates that if the relationship has indeed broken down and mediation fails, the circumstances under which a divorce should be granted are:

1) bigamy or cohabitation of a person with a spouse;

2) Committing domestic violence or abusing or abandoning family members;

3) Those who have bad habits such as gambling and drug abuse that they do not change;

4) Separated for two years due to emotional discord;

5) Other circumstances that lead to the breakdown of the relationship between husband and wife.

1. How long does it take to sue for divorce after separation?

The question of how long it takes to sue for divorce and separation first depends on the reason for the separation of the parties, whether the separation is due to emotional incompatibility, and whether the separation has led to the breakdown of the relationship between the husband and wife.