How to divorce a mentally ill person, how to divorce a mentally ill person

Legal analysis: The conditions for divorce from a mentally ill person are as follows: 1. For the particularity of a mentally ill person, if a lawsuit is filed for divorce in the court, the first step will be to examine whether the mentally ill spouse belongs to the onset of mental illness in the state of the divorce process; 2. The court's standard for hearing divorce cases is whether the relationship between the husband and wife has broken down

Article 1076 of the Civil Code of the People's Republic of China 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 gambling, drug abuse, or other vices that have been repeatedly taught; (4) They have been 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.

A mentally ill person should be divorced in the following ways:

1. Under normal circumstances, the marriage relationship can only be dissolved by litigation divorce;

2. If it is an intermittent mentally ill person, he or she may participate in the litigation during the time when he or she is mentally normal;

3. If it is a mentally ill person with limited capacity or no capacity for civil conduct, his parents and children shall litigate on his behalf.

Legal basisArticle 22 of the Civil Code of the People's Republic of China.

Adults who cannot fully recognize their own conduct are persons with limited capacity for civil conduct, and the implementation of civil juristic acts is carried out by their legally-designated **person** or with the consent and retrospective consent of their legally-designated **person; However, they may independently carry out civil juristic acts that are purely beneficial or that are appropriate to their intellectual or mental health conditions.

According to article 3 of the "Several Specific Opinions of the Supreme People's Court on How to Determine the Breakdown of the Relationship between the Husband and Wife in the Trial of Divorce Cases", if the person conceals his mental illness before marriage and does not heal after marriage, or marries the other party knowing that the other party is mentally ill before marriage, or if one party suffers from mental illness during the period of living together with the husband and wife and does not heal for a long time, it is deemed that the relationship between the husband and wife has indeed broken down. If one party insists on requesting a divorce, and mediation fails, a judgment may grant the divorce in accordance with the law.

According to the "Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of Civil Policy and Law", it is provided:

If one party suffers from mental illness and the other party requests a divorce, the handling should not only protect the freedom of marriage, but also facilitate the patient's ** and living arrangements. If the illness is concealed before marriage and cannot be cured after marriage, the divorce should be granted by doing a good job; If a husband and wife have been married for many years and have children, it should be pointed out that the husband and wife have the obligation to help each other and do a good job in ideological work. It is advisable not to leave.

If it is true that the relationship between husband and wife can no longer be maintained, the divorce may be granted after the other party, relatives and relevant units have arranged for the patient's life, medical treatment, and guardianship.

China's Marriage Registration Regulations stipulate that if a party to a divorce registration is a person with no or limited capacity for civil conduct, the marriage registration authority shall not accept his or her application for divorce registration. In other words, such a person's divorce cannot be resolved by "agreement", but must be resolved through litigation and by the court.

Mentally ill people can get divorced in the following ways:

1. If a mentally ill person cannot carry out a divorce by agreement without full civil capacity, his or her spouse may sue the court for divorce;

2. In the event that the court judges that the interests of the mentally ill party clash with the interests of the mentally ill party, the court will take the initiative to appoint other guardians as its litigants;

3. If the court believes that one of the spouses has suffered from mental illness for a long time and cannot be cured, resulting in the breakdown of the relationship between the husband and wife, the court will grant a divorce;

4. Mediation may be conducted by relevant organizations or divorce proceedings may be filed directly with the people's court;

5. The people's court hearing a divorce case shall conduct mediation, and if the relationship has indeed broken down, and the mediation fails, the divorce shall be granted.

Legal basisArticle 123 of the Civil Procedure Law of the People's Republic of China.

The people's courts shall ensure the parties' right to sue in accordance with the provisions of law. Prosecutions that comply with article 119 of this Law must be accepted. Where the requirements for initiating litigation are met, the case shall be filed within 7 days and the parties shall be notified:

Where the requirements for initiating litigation are not met, a congratulatory ruling shall be issued within 7 days. inadmissible; Where the plaintiff is not satisfied with the ruling, he may file an appeal.

Legal Analysis: First, the issue of identification. The court should combine the judicial psychiatric evaluation, refer to the hospital's diagnosis certificate, and, when necessary, combine the patient's neighbors and village committee certificates to determine the person's mental illness and civil capacity.

The second is to change the guardian. The law stipulates that if the first guardian of a mentally ill person who lacks or has limited civil capacity is a spouse, and the guardian in the litigation is his or her legal first person, once a divorce is involved, there is a serious conflict of interest, and it is necessary to change the guardian from the parents, adult children, and other close relatives of the sick person.

The third is the issue of child support and property distribution. The principle of benefiting the growth of the children should be the same, and in the distribution of property, if the mentally ill person has difficulties in living after the divorce, the non-sick party should be given appropriate assistance from his or her personal property such as housing.

Legal basis: Article 1079 of the Civil Code of the People's Republic of China: Where one of the husband and wife requests a divorce, the relevant organization may 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 is ineffective, the divorce shall be granted.