Do I still have to go through the cooling off period if I divorce due to domestic violence?

The cooling-off period for divorce refers to the cooling-off period in which both parties to a marriage apply for voluntary divorce under the principle of freedom of divorce, and within a certain period of time from the date of receipt of the application by the marriage registration authority, either party may withdraw the divorce application and terminate the registered divorce procedure.

Article 1077 of the Civil Code 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certificate; If the application is not made, it shall be deemed that the application for divorce registration has been withdrawn.

The divorce cooling-off period system is a new system added to the Civil Code, and its legislative reason is that there are fewer restrictions on registered divorce in China, and it is more convenient to divorce, and this kind of relaxed policy has created opportunities for hasty divorce, and the phenomenon of flash marriage and flash divorce is more serious, and the divorce rate is high, which is not conducive to maintaining family stability and protecting the interests of children.

According to Article 1077 of the Civil Code, the conditions for the cooling-off period for registered divorce are as follows:

First, if both parties voluntarily divorce and apply for divorce at the marriage registration office, and meet the conditions for divorce, the divorce certificate will not be issued for the time being, and the marriage relationship will not be dissolved immediately.

Second, the cooling-off period for divorce is 30 days, and within 30 days from the date of receipt of the divorce registration application by the marriage registration authority, if either party is unwilling to divorce, he or she may withdraw the divorce registration application to the marriage registration authority.

Third, within 30 days after the expiration of the 30-day cooling-off period, both parties shall apply in person to the marriage registration authority for the issuance of a divorce certificate, and the marriage registration authority shall issue a divorce certificate, i.e., dissolve the marriage relationship. Fourth, if the parties fail to apply for a divorce certificate at the marriage registration agency within 30 days after the expiration of the cooling-off period, the application for divorce registration shall be deemed to have been withdrawn and no divorce will occur.

If domestic violence occurs during the marriage and the parties want to divorce by mutual agreement, then according to article 1077 of the Civil Code, the parties are still required to go through a 30-day cooling-off period for divorce.

In this regard, some people believe that this will prolong the suffering of the victim of domestic violence and is not conducive to protecting the legitimate rights and interests of the victim. However, in the case of domestic violence, in practice, it is generally necessary to file a lawsuit for divorce with the court, and the divorce cooling-off period system does not apply to the divorce lawsuit, and the court will generally make a divorce judgment in the first instance in the case of divorce due to domestic violence, so it is more conducive to protecting the legitimate rights and interests of the parties to divorce through litigation.

The cooling-off period for divorce is only applicable to divorce by agreement, and domestic violence divorce is generally a litigation procedure in judicial practice.

Legal analysis: As long as it is a divorce by agreement, it is necessary to go through a 30-day "divorce cooling-off period" before Yu Daru can obtain a divorce certificate. In the case of domestic violence, divorce can be obtained through litigation.

Legal basis: Article 234 of the Criminal Law of the People's Republic of China Whoever intentionally injures the body of another person shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release.

Whoever commits the crime in the preceding paragraph, causing serious injury, is to be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; Whoever causes death or seriously injures a person by especially cruel means, causing serious disability, is to be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment, or death. Where this Law provides otherwise, follow those provisions.

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 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 a divorce is not permitted, the parties have been separated for one year, and one party initiates a divorce lawsuit again, the divorce shall be granted.

Article 1091:In any of the following circumstances, where a divorce is caused, the party who is not at fault has the right to claim damages:

a) bigamy; 2) cohabitation with another person;

3) Committing domestic violence;

4) Abuse or abandonment of family members;

5) There are other major faults.