What does the cooling off period apply to?

Yang Zongtao, a second-level inspector of the Ministry of Civil Affairs, said at a press conference of the Ministry of Civil Affairs on December 4 that the provisions of the Civil Code on the cooling-off period system for divorceOnly applicable to divorce by mutual agreement

In the case of domestic violence, the parties may file a lawsuit with the court, which is clearly stipulated in article 1079 of the Civil Code, one of which is that the court on domestic violence can grant a divorce. The cooling-off period system does not apply to suing for divorce, so there is no problem that the cooling-off period is not conducive to the protection of parties who have suffered domestic violence.

Yang Zongtao, the second-level inspector of the Ministry of Civil Affairs, also introduced that "the adjusted divorce registration procedure is 'application-acceptance-cooling-off period-review-registration (issuance)'." If the application for divorce is voluntarily divorced by the husband and wife, a written divorce agreement shall be concluded, and the application shall be jointly submitted to the marriage registration authority with jurisdiction with relevant documents and supporting materials, and the "Application for Divorce Registration" shall be filled out on the spot.

After the marriage registrar has made a preliminary examination of the documents and supporting materials submitted by the parties, he shall issue a "Receipt of Acceptance of Divorce Registration Application" to both parties to the divorce, which is the acceptance of the divorce.

According to the relevant provisions of the Civil Code, within 30 days from the date of receipt of the application for divorce registration by the marriage registration authority, if either party is unwilling to divorce, he or she may withdraw the application for divorce registration from the marriage registration authority. These thirty days are known as the cooling-off period for divorce.

Article 1077 of the Marriage and Family Section of the Civil Code of the People's Republic of China stipulates that within 30 days from the date of receipt of the application for divorce registration by the marriage registration authority, if either party is unwilling to divorce, he or she may withdraw the application for divorce registration from the marriage registration authority. Within 30 days after the expiration of the period provided for in the preceding paragraph, both parties shall apply in person to the marriage registration authority for the issuance of a divorce certificate; If the application is not made, it shall be deemed that the application for divorce registration has been withdrawn.

This provision is about the cooling-off period for divorce by mutual agreement. The cooling-off period system for divorce is a new provision of the Civil Code, and its scope of application is limited to divorce by agreement, that is, we usually say that the two parties voluntarily divorce and reach an agreement to obtain a divorce certificate from the civil affairs department, and it is not applicable to divorce by litigation in the court.

Legal analysis: The conditions for the application of the cooling-off period for divorce are the situation where the two parties agree to divorce, and if the divorce is litigated, the party directly filing a lawsuit with the local people's court with the complaint is not applicable. The purpose of the law is to allow the husband and wife to be cautious about their marriage through the divorce cooling-off period, to set an appropriate time "threshold" for the parties who wish to divorce, and to promote the parties to think calmly and rationally and make proper decisions.

Avoid divorce on the spur of the moment. This can not only protect the freedom of divorce, but also ensure that both parties make correct and calm choices and protect the interests of minor children.

Legal basis: Article 1077 of the Civil Code of the People's Republic of China Article 1077 Within 30 days from the date of receipt of the application for divorce registration by the marriage registration authority, if either party is unwilling to divorce, he or she may withdraw the application for divorce registration from the marriage registration authority. Within 30 days after the completion of the period provided for in the preceding paragraph, both parties shall apply in person to the marriage registration authority for the issuance of a divorce certificate; If the application is not made, it shall be deemed that the application for divorce registration has been withdrawn.

The specific circumstances of the cooling-off period for divorce are not clearly stipulated in the law, and in general, the court may recommend the setting of the cooling-off period during the review, but whether it is necessary to determine the cooling-off period needs to be handled by the parties through consultation, and its purpose is to determine the divorce behavior of the parties.

There is no specific provision in the law on the application of the cooling-off period for divorce, and generally means that a cooling-off period for divorce can be set up at the suggestion of the judge. The so-called "cooling-off period" refers to the postponement of divorce proceedings by both parties to the divorce at the suggestion of the judge, and many couples in divorce disputes belong to the impulsive type, and this type of couple may repair their feelings within the "cooling-off period" to avoid the expansion of conflicts. Of course, the opinions of the parties to the divorce dispute must also be respected whether to choose the "cooling-off period", which is not a mandatory procedure prescribed by law, and is essentially a way for judges to handle divorce cases.

1. Procedures for voluntary divorce.

If a man and a woman divorce voluntarily, they must go to the marriage registration office to register the divorce (the marriage registration authority is the people of townships, ethnic townships and towns in rural areas, and the civil affairs departments of sub-district offices and municipal districts or the civil affairs departments of cities not divided into districts). The procedure is as follows:

1. Application. When a man and a woman apply for divorce by voluntary agreement, both parties shall apply for divorce in person at the marriage registration authority where one of the parties is registered with their household registration certificate, resident identity card, letter of introduction issued by their unit, villagers' committee or residents' committee, divorce agreement and marriage certificate.

2. Review. The marriage registration authorities conduct a strict examination of divorce applications in accordance with the law, mainly to examine whether the parties are genuinely willing and whether they have reached an agreement on matters such as the support of the split children, the financial assistance of one of the spouses in difficult life, and the handling of property and debts.

3. Approval. For those who meet the conditions for voluntary divorce as stipulated in the Civil Code, the registration authority shall approve the registration within one month from the date of acceptance of the application, issue a divorce certificate, and cancel the marriage certificate. The parties dissolve the relationship between the husband and wife from the time the divorce certificate is obtained.

Legal Analysis: No. Within 30 days from the date of receipt of the divorce application for marriage registration, if either spouse repents of the divorce, he or she may go to the marriage registration authority to revoke the divorce application, and the marriage is still a legal marriage relationship, and both parties are still husband and wife.

Legal basis: Civil Code of the People's Republic of China

Article 1076:Where both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration in person at the marriage registration organs. The divorce agreement shall clearly state the parties' expression of intent to divorce voluntarily and the consensus on matters such as child support, property, and debt handling.

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 abuse that have not been corrected;(4) Separated for two years due to emotional discord;(5) Other circumstances that lead to the breakdown of the relationship between husband and wife. If one party is declared missing and the other party initiates a divorce lawsuit, the divorce shall be granted to the other party. 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.