Is it necessary to go through the cooling off period for domestic violence divorce?

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certificate; If the application is not made, it shall be deemed that the application for divorce registration has been withdrawn.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

According to the provisions of the Civil Code on the "cooling-off period", the "cooling-off period" system will only be applied when both parties apply to the marriage registration authority for the registration of divorce from mainland China, which is a manifestation of fully respecting and protecting the divorce rights and freedoms of husband and wife. This shows that the "cooling-off period" system does not envy the application of all divorce situations, and the occurrence of domestic violence does lead to the breakdown of the relationship, and if you go to the court for divorce, there is no so-called "cooling-off period" application problem.

Legal basis: Article 1077 of the Civil Code of the People's Republic of China Within 30 days from the date on which the marriage registration authority receives the application for divorce registration, 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.