Can a divorce case be retried, and can a divorce case be retried

Divorce refers to the legal act of dissolving the marital relationship between the husband and wife in accordance with the legal conditions and procedures. In accordance with the spirit of the Provisions of the Supreme People's Court on Civil Causes of Action, the cause of action of "divorce dispute" includes a single lawsuit by the parties requesting the dissolution of the marital relationship, as well as a compound lawsuit of the parties arising from the request for the dissolution of the marital relationship, such as disputes over child support and property division. The identity relationship involved in divorce disputes is irreversible.

A single action by the parties for the dissolution of the marriage relationship, that is, the parties only ask for divorce, and do not involve child support and property division. After a judgment in such a case takes effect, the parties cannot apply for a retrial. Parties to mediation cases dissolving marriage relations are also not allowed to apply for a retrial.

In addition, the Civil Procedure Law does not stipulate whether a retrial can be applied for on the issue of child support. Several Specific Opinions on the Handling of Child Support Issues in Divorce Cases by People's Courts15 stipulate that after divorce, if one party requests to change the child support relationship, or if the child requests an increase in child support, a separate lawsuit shall be filed. Therefore, the issue of child support cannot be retried and should be prosecuted separately.

Finally, the Civil Procedure Law does not clearly stipulate whether the issue of property division can be retried. Article 209 of the Opinions of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China clarifies that if a party applies for a retrial on the issue of property division in a divorce case, if it involves property that has been divided in the judgment, and meets the conditions for retrial, the case shall be filed for trial; If it involves the joint property of the husband and wife that has not been disposed of in the judgment, the parties shall be informed to file a separate lawsuit. Legal basis:

Article 202 of the Civil Procedure Law of the People's Republic of China: Parties must not apply for a retrial of a judgment or mediation document for the dissolution of marriage that has already taken legal effect. Several Opinions of the Supreme People's Court on Regulating the Retrial and Case Filing of People's Courts (Provisional) Article 14 of the Civil Procedure Law of the People's Republic of China The people's courts shall not accept applications for retrial of the following civil cases: (1) Cases heard by the people's courts in accordance with the procedures for supervision, publicity and reminder, and bankruptcy and debt repayment; (2) Cases in which the people's court rules to revoke the arbitral award or not to enforce the arbitral award; (3) Cases in which the people's courts make judgments or mediate the dissolution of marital relations, except where the parties apply for a retrial on the issue of property division.

Opinions of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China209: Where a party applies for a retrial on the issue of division of property in a divorce case, if it involves property that has been divided in the judgment, the people's court shall conduct a review in accordance with the provisions of article 179 of the Civil Procedure Law, and if the conditions for retrial are met, the case shall be filed for trial; If it involves the joint property of the husband and wife that has not been disposed of in the judgment, the parties shall be informed to file a separate lawsuit.

Parties must not apply for a retrial of a judgment or mediation document on the dissolution of marriage that has already taken legal effect.

1. For a judgment granting divorce that has already taken effect, it is not possible to apply for a retrial.

The parties may not apply for a retrial of a judgment on the dissolution of a marriage that has already taken legal effect, and this is for the purpose of the marriage relationship.

As long as the judgment on the dissolution of marriage takes legal effect, the rights and obligations arising from the relationship between husband and wife will disappear. According to article 202 of the Civil Procedure Law, a party may not apply for a retrial of a judgment on the dissolution of marriage that has already taken legal effect.

2. The parties may apply for a retrial on the division of property involved in the divorce case.

Where divided property is involved, and the requirements for retrial are met, a retrial may be made.

Where undivided property is involved, the parties shall be informed to file a separate lawsuit.

According to Article 209 of the Opinions of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China, where a party applies for a retrial on the issue of property division in a divorce case, if it involves property that has been divided in the judgment, the people's court shall conduct a review in accordance with the provisions of Article 179 of the Civil Procedure Law, and if the conditions for retrial are met, the case shall be filed for trial; If it involves the joint property of the husband and wife that has not been disposed of in the judgment, the parties shall be informed to file a separate lawsuit.

3. Disputes over the custody of the children can also be retried.

Divorce cases should be resolved in principle in conjunction with the issues of whether to grant divorce, child support and division of property.

In accordance with the spirit of dealing with the issue of division of property, in a divorce case, if the parties request the people's court to deal with the issue of child support, but the judgment or mediation made by the court omitted to handle it, the parties may be notified to file a separate lawsuit in accordance with the above provisions.

1. What should I do if I am not satisfied with the second instance of civil litigation?

Parties may apply to the people's court at the level above for a retrial; In cases where one of the parties is large or both parties are citizens, an application may also be made to the original people's court for a retrial.

Article 199 of the Civil Procedure Law stipulates that if a party believes that a judgment or ruling that has already taken legal effect is in error, it may apply to the people's court at the next higher level for a retrial; In cases where one of the parties is large or both parties are citizens, an application may also be made to the original people's court for a retrial. Where a party applies for a retrial, the enforcement of the judgment or ruling is not stopped.

Where the court rejects the application for retrial or fails to make a ruling within the time limit, the parties may apply to the people's procuratorate for a procuratorial suggestion or prosecutorial counter-appeal. Parties must not apply to the people's procuratorate again for a procuratorial suggestion or prosecutorial counter-appeal.

Article 209 of the Civil Procedure Law stipulates that in any of the following circumstances, a party may apply to the people's procuratorate for a procuratorial suggestion or a prosecutorial counter-appeal:

1) The people's court rejects the application for retrial;

2) The people's court has not made a ruling on the application for retrial within the time limit;

3) The retrial judgment or ruling is clearly in error.

The people's procuratorate shall conduct a review of a party's application within three months, and make a decision on whether to submit or not to submit a procuratorial suggestion or prosecutorial counter-appeal. Parties must not apply to the people's procuratorate again for a procuratorial suggestion or prosecutorial counter-appeal.

Divorce cases may apply for retrial, but according to the Several Opinions of the Supreme People's Court on Regulating the Retrial and Case Filing of People's Courts (for Trial Implementation), if a party applies for a retrial on the issue of property division, it can only be retried, otherwise it cannot be applied for a retrial.

Legal basis: Article 14 of the Supreme People's Court's Several Opinions on Regulating the Retrial and Case Filing of People's Courts (Provisional).

The people's courts will not accept applications for retrial in the following civil cases:

1) Cases heard by the people's courts in accordance with the procedures for supervision, publicity and reminders, and bankruptcy and debt repayment;

(2) Cases in which the people's court rules to revoke the arbitral award or not to enforce the arbitral award;

(3) Cases in which the people's courts make judgments or mediate the dissolution of marital relations, except where the parties apply for a retrial on the issue of property division.

Which cases cannot be retried.

1. The applicant is not qualified;

2. After the first-instance judgment of a civil case, the parties do not file an appeal without a legitimate reason;

3. The judgment, ruling, or mediation of a civil case has taken legal effect for more than two years;

4. Where a party to a civil case does not submit evidence without a legitimate reason during the first- or second-instance trial, and hereby submits an application for retrial on the basis of that evidence;

5. Where the applicant for retrial withdraws the application for retrial during the period of retrial, or refuses to appear in court after being lawfully summoned, and applies for a retrial on the same grounds after the people's court has handled it as a voluntary withdrawal of the application for retrial;

6. The parties have reached an enforcement settlement agreement and the performance has been completed;

Article 121 of the Supreme People's Court's Interpretation on Application.

In any of the following circumstances during the retrial trial, a ruling is made to conclude the retrial procedures:

1) The applicant for retrial withdraws the request for retrial during the period of retrial, and the people's court permits it;

2) Where the applicant for retrial is summoned by summons and refuses to appear in court without a legitimate reason, or leaves court without the court's permission, it is to be handled as a withdrawal of the request for retrial;

3) The people's procuratorate withdraws the prosecutorial counter-appeal;

4) Other situations where the retrial procedures shall be concluded.

In cases where the people's procuratorate has raised a procuratorial counter-appeal and rules for retrial, and the party applying for a procuratorial counter-appeal has the circumstances provided for in the preceding paragraph, and it does not harm the national interest, the societal public interest, or the lawful rights and interests of others, the people's court rules to terminate the retrial procedures.

After the retrial procedures are concluded, the people's court rules to suspend enforcement of the original effective judgment automatically reinstated.

Can I still apply for a retrial after the application for retrial is rejected?

After the application for retrial is rejected, an application for retrial may also be made. If, after the first-instance court rejects an application for retrial, the parties are dissatisfied with the application for retrial to the court at the higher level, and the court of second instance also finds that the original judgment or ruling is correct, and the parties cannot provide new facts and reasons for applying for retrial, the people's court will no longer handle the parties' application for retrial. Of course, in addition to applying to the court for a retrial, the parties may also appeal to the people's procuratorate, because as the national legal supervision organ, the people's procuratorate exercises legal supervision functions and powers on behalf of the state, and if after examination, the procuratorate finds that the conditions for a protest as provided for in the Civil Procedure Law are met, and raises a protest, the people's court shall also conduct a retrial.

Legal basis:

The purpose of retrial is to correct erroneous judgments or rulings that have already taken legal effect, and to retry the case in accordance with the trial supervision procedures in accordance with the provisions of law;

When a party applies for a retrial of an effective divorce judgment, it can only apply for issues such as property division, child support, creditor's rights and debts, etc. The parties must not apply for a retrial of a judgment granting a divorce between the parties.

Legal basis] Article 382 of the Interpretation of the Supreme People's Court on Application, where a party applies for a retrial on the issue of property division in a divorce case, such as involving property that has been divided in the judgment;

The people's courts shall conduct a review in accordance with article 200 of the Civil Procedure Law, and where the requirements for retrial are met, they shall rule for a retrial; If it involves the joint property of the husband and wife that has not been disposed of in the judgment, the parties shall be informed to file a separate lawsuit.

Legal analysis: Divorce cases cannot be retried. The retrial of the reciprocal Xiang clan is a review made to correct an erroneous judgment that has already taken legal effect and to retry the case in accordance with the trial supervision procedures.

If a party applies for a review of an effective divorce judgment, it can only apply for property division, creditor's rights, debts and other issues. The parties may not apply for a retrial of the judgment granting the divorce.

Legal basis: Article 183 of the Civil Procedure Law of the People's Republic of China: Parties must not apply for a retrial of a judgment that has already had legal effect on the dissolution of a marital relationship.

Legal analysis: Divorce cases cannot be retried. Parties must not apply for a retrial of a judgment on the dissolution of marriage that has already taken legal effect.

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 authority.

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 addiction that they have repeatedly taught and not changing;

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.

Article 1085:After divorce, where children are directly raised by one party, the other party shall bear part or all of the child support. The amount of the cost to be borne and the length of the period shall be agreed upon by both parties; If the agreement is not reached, the people's court shall make a judgment.

The agreement or judgment provided for in the preceding paragraph does not prevent the child from making a reasonable demand to either parent in excess of the amount originally set forth in the agreement or judgment when necessary.

Article 1087:In the event of divorce, the joint property of the husband and wife shall be disposed of by mutual agreement; If an agreement is not reached, the people's court is to make a judgment based on the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman, and the innocent party.

The rights and interests enjoyed by husbands or wives in the contracting and management of family land shall be protected in accordance with law.