Can one of the parties to a divorce case not appear in court?

At present, in the trial practice of divorce cases, when the defendant refuses to appear in court without justifiable reasons after being summoned by summons, the court will generally conclude the case in default in accordance with Article 130 of the Civil Procedure Law. In the author's opinion, this is a misunderstanding in trial practice, and the defendant in a divorce case who refuses to appear in court should be summoned to court.

First of all, the second paragraph of Article 25 of China's Marriage Law stipulates that "the people's court hearing a divorce case shall conduct mediation, and if the relationship has indeed broken down and the mediation is ineffective, the divorce shall be granted." It can be seen that mediation is a necessary procedure for the trial of divorce cases. The failure of mediation is a prerequisite for granting a divorce.

Mediation is conducted face-to-face between the plaintiff and the defendant, and if the defendant does not appear in court, the mediation cannot proceed. Therefore, the defendant must appear in court in a divorce case, except where the defendant's whereabouts are unknown.

Second, since the trial of a divorce case is based on whether the relationship between the husband and wife has completely broken down, if the defendant does not appear in court, the adjudicators can only hear the plaintiff's side of the story, and cannot comprehensively and objectively examine the actual situation of the relationship between the husband and wife, which can easily lead to a wrongful verdict.

Thirdly, Article 100 of China's Civil Procedure Law stipulates that "a people's court may custodial a defendant who must appear in court and refuses to appear in court without a legitimate reason after being summoned by two summonses." This legal provision provides a legal basis for the application of custodial summons to defendants in divorce cases who refuse to appear in court.

Therefore, when hearing a divorce case, if the defendant is not missing, but deliberately recuses himself from the trial, custodial summons measures should be taken in accordance with the law to compel him to appear in court to participate in the proceedings. In order to properly hear such divorce cases in accordance with the law and fairly. It is worth mentioning that if the whereabouts of the defendant are indeed unknown, then since it is objectively impossible to organize mediation between the plaintiff and the defendant, the mediation procedure can be cancelled during the trial and the judgment can be directly conducted.

The adjudication was based on Article 12 of the Supreme People's Court's Several Specific Provisions on How the People's Court Determines that the Relationship between Husband and Wife Has Truly Broken Down in the Trial of Divorce Cases, which stipulates that "if one party's whereabouts have been unknown for two years, and the other party sues for divorce, and it is found that there is no whereabouts after a public announcement, a judgment may be made to grant divorce in accordance with law." ”

2. If the divorce proceedings are entrusted to the ** person, can they not appear in court?

Generally speaking, if the litigant entrusts a person, he can not appear in court to participate in the litigation activities, but divorce cases are different from other civil cases, according to the provisions of China's marriage law, whether the husband and wife can divorce depends on whether the relationship has indeed broken down, and on this issue, the litigant is often not accurate, and it is difficult to make statements, debates and explanations on the specific circumstances. Therefore, if a litigant is entrusted to a divorce case, in principle, he or she must appear in court. Considering the special circumstances of some cases, for example, if the person concerned is a mentally ill person and cannot correctly express his or her will, it makes no sense to ask him to appear in court; Another example is that the party is suffering from an infectious disease or is abroad and it is inconvenient to appear in person in court, so the law allows exceptions in addition to the principles provided.

However, the above two exceptions are also slightly different, for parties who cannot express their will, not only can they not appear in court, but they also do not need to submit written opinions; For those who are unable to appear in court due to special circumstances, the parties must have a written opinion on whether or not to agree to the divorce and submit it to the people's court.

Divorce cases require the parties to appear in person.

In ordinary civil cases, the defendant can be adjudicated in absentia if he does not appear in court, and the judgment cannot be made in absentia under normal circumstances in divorce cases.

If one party does not come to the divorce case, the normal court will not be able to adjudicate it.

If it is the first time to file a lawsuit, and the defendant resolutely refuses to divorce, and there is no particularly serious fault, the court will normally not grant a divorce.

Both parties are required to appear in court unless the other party is unable to appear in court due to special reasons.

Legal analysis: According to the relevant laws and regulations of China, it is necessary to analyze the circumstances of one party not appearing in court in a divorce case, and for the defendant not appearing in court, Yu Jing can be tried in absentia; For the cavity type of the plaintiff's party not appearing in court, it is handled in accordance with the withdrawal of the lawsuit.

Legal basis: Article 143 of the Civil Procedure Law of the People's Republic of China Where the plaintiff is summoned by summons and refuses to appear in court without a legitimate reason, or leaves the court without the court's permission, it may be handled as a withdrawal of the lawsuit; Where the defendant counterclaims, a judgment may be rendered in absentia.

Article 144:Where the defendant is summoned by summons and refuses to appear in court without a legitimate reason, or leaves court without the court's permission, a judgment may be rendered in absentia.

The parties to the divorce case must appear in court, although one of the parties to the divorce has a client and is a person with insufficient civil capacity, he should appear in court to respond to the lawsuit. Therefore, if a person has full capacity for civil conduct and his whereabouts are clear, the divorced parties should appear in court to respond to the lawsuit. For divorced parties whose whereabouts are unknown and who have been served with legal documents by public announcement, and are truly unable to appear in court to respond to the lawsuit, they may be sentenced in absentia in accordance with law.

I really do not want to appear in court to participate in the proceedings, but I make a written statement to the court. Rental training may be handled in absentia in accordance with law.

Where they are unwilling to appear in court to respond to the lawsuit, and do not issue a written divorce opinion to the people's court, and refuse to appear in court after being summoned by two summonses, they may be summoned to appear in court to participate in the litigation in accordance with law.

Legal basis: Civil Procedure Law

Article 62: Where there is a litigant in a divorce case, the person shall still appear in court except where he or she is unable to express his intentions; Where they are truly unable to appear in court due to special circumstances, they must submit a written opinion to the people's court.

Legal Analysis: A default judgment can be awarded. If there is a litigant in a divorce case, the person shall still appear in court unless he or she is unable to express his will; Where they are truly unable to appear in court due to special circumstances, they must submit a written opinion to the people's court.

Legal basis: "Civil Procedure Law of the People's Republic of China" Article 144: Where the defendant is summoned by summons and refuses to appear in court without a legitimate reason, or leaves court without the court's permission, a judgment may be rendered in absentia.

In divorce cases, if the plaintiff does not appear in court, the court may handle it as withdrawing the lawsuit, and if the defendant does not appear in court, the court may make a judgment in absentia, but if it is necessary to appear in court, and the parties refuse to appear in court without justifiable reasons after being summoned by two summonses, they may be summoned by custodial summons.

Article 140 of the Civil Procedure Law of the People's Republic of China talks about the third article of Chi Qi: If the plaintiff is summoned by summons and refuses to appear in court without a legitimate reason, or leaves the court without the permission of the court, it may be handled as a withdrawal of the lawsuit; Where the defendant counterclaims, a judgment may be rendered in absentia. Article 144 of the Civil Procedure Law of the People's Republic of China:

Article 109 of the "Civil Procedure Law of the People's Republic of China" where the defendant is summoned by summons and refuses to appear in court without a legitimate reason, or withdraws from court without the permission of the court: A people's court may custodial summons a defendant who must appear in court, and refuses to appear in court without a legitimate reason after being summoned by two summonses.

If the plaintiff has sufficient evidence to show that the relationship between the parties has indeed broken down, the court may grant a divorce. However, if the relationship cannot be proved to have broken down, and the other party does not show up to express his willingness to divorce, the court will generally not grant a divorce.

Legal basis: Article 1079 of the Civil Code of the People's Republic of China? If one of the husband and wife requests a divorce, the relevant group may accompany the organization to 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) 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 or more, and one party initiates divorce proceedings again, the divorce shall be granted.

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If the defendant refuses to appear in court after receiving a court summons, the court may hear the case in absentia and make a judgment in absentia. However, in the case of Okimori's divorce, the first ** has such a situation, and the judgment is fierce, and the divorce is generally not awarded.

Article 143 of the Civil Procedure Law of the People's Republic of China stipulates that if the plaintiff is summoned by summons and refuses to appear in court without a legitimate reason, or withdraws from the court without the permission of the court, the plaintiff may be dismissed. The parties have full capacity for civil conduct, and when they receive a summons from the court for the purpose of not wanting to divorce, they do not appear in court to respond to the lawsuit.

For this type of divorce case, there are two types of situations: First, in accordance with the provisions of Article 93 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, a default judgment may be made in accordance with the law. Second, if the party in such a divorce case refuses to appear in court after being summoned twice by summons, he may be detained and summoned to appear in court to participate in the litigation in accordance with law.

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Legal analysisWhere a party has full capacity for civil conduct, and receives a summons from the court for purposes such as reluctance to divorce, and does not appear in court to respond to the lawsuit, it is to be handled in two situations: First, the person is truly unwilling to appear in court to participate in the litigation, but submits his or her opinions to the court in writing. In accordance with relevant provisions, a default judgment may be made in accordance with law.

Second, if the parties to this type of divorce case are unwilling to appear in court to respond to the lawsuit, and do not issue a written divorce opinion to the people's court, the parties to this type of divorce case may be summoned to appear in court in accordance with the relevant provisions, because the parties in this type of divorce case have the obligation to raise the child and cannot find out the relevant facts of the case if they do not appear in court, so if they refuse to appear in court after being summoned by the summons twice, they may be summoned to appear in court to participate in the litigation in accordance with the law. Divorce refers to the legal act of dissolving the marriage relationship between husband and wife in accordance with the legal conditions and procedures.

Legal basisCivil Procedure Law of the People's Republic of China》 Article 143: Where the plaintiff is summoned by summons and refuses to appear in court without a legitimate reason, or leaves court without the court's permission, it may be handled as a withdrawal of the lawsuit; Where the defendant counterclaims, a judgment may be rendered in absentia.