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On January 2, 2022, an article on the WeChat public account of the Shandong Higher People's Court titled "Cannot Request a Divorce Only on the Grounds of "Cheating" aroused widespread heated discussion. The first reaction of many netizens who are not familiar with the law when they see the title of the article is that one party has already cheated, so can't they ask for a divorce? So, how exactly does the law say it? Why is it so stipulated?

1

Civil Code Conditions for Divorce Litigation

  At present, there are two ways of divorce in our country: Divorce by agreement and divorce by lawsuit. The two sides can talk and break up easily, and reach an agreement on divorce, joint property, child support, etc., and a divorce by agreement is naturally the best result. If it is difficult for both parties to reach an agreement on whether to divorce, the only way to dissolve the marriage is through litigation.

Article 1079 of the Civil Code stipulates: "The people's court will conduct mediation when hearing divorce cases; if the relationship has indeed broken down and mediation is invalid, divorce will be granted. In one of the following circumstances, where mediation is invalid, divorce shall be granted. (1) Bigamy or cohabitation with others; (2) Domestic violence or abuse or abandonment of family members; (3) Gambling, drug addiction and other bad habits that have not changed after repeated education; (4) Separation for two years due to emotional discord; (5) Other circumstances that lead to the breakdown of the relationship between husband and wife.” It can be seen from the above provisions that the Civil Code does not restrict the parties to request divorce on the grounds of derailment. However, the basic reason for judging divorce is that the relationship between husband and wife has indeed broken down. The Civil Code lists four statutory situations for determining that the relationship between husband and wife has indeed broken down. If one of the husband and wife cheats, the people's court will not only make a direct judgment to grant the divorce, but will comprehensively judge whether the relationship between the husband and wife is broken according to other circumstances of the case. The Shandong High Court's interpretation of the relevant legal provisions is accurate, but the title of the article has caused misunderstandings among netizens, making many netizens mistakenly believe that the law restricts the parties' right to request a divorce.

2

Opposing Reckless Divorce is the Guiding Ideology of Divorce Legislation in our country

The Marriage and Family Section of the Civil Code adheres to the guiding ideology of our country's divorce legislation, which is to "protect the freedom of divorce and oppose rash divorce". From a global perspective, our country's divorce system is relatively loose. In response to a large number of impulsive divorces in the society, the Civil Code also sets up a "divorce cooling-off period" for the first time, hoping to reduce the divorce rate and limit impulsive divorces.

Therefore, the four statutory situations in the Civil Code that determine that the relationship between husband and wife has indeed broken down are acts that seriously damage the relationship between husband and wife. Especially for the innocent party in this type of marriage, living in it is often like a year. Ending an already riddled marriage as soon as possible will help the no-fault party get rid of the pain and start a new life. But the derailment situation is relatively complex. Imagine a couple who are usually in a harmonious relationship, but one of them accidentally cheats. It is difficult for the people's court to determine that the relationship between the husband and wife has indeed broken down.

Therefore, the four statutory situations in the Civil Code that determine that the relationship between husband and wife has indeed broken down are acts that seriously damage the relationship between husband and wife. Especially for the innocent party in this type of marriage, living in it a day is often like a year. Ending an already riddled marriage as soon as possible will help the no-fault party get rid of the pain and start a new life. But the derailment situation is relatively complex. Imagine a couple who are usually in a harmonious relationship, but one of them accidentally cheats. It is difficult for the people's court to determine that the relationship between the husband and wife has indeed broken down.

For irretrievable marriages, the law also fully protects the parties' freedom of divorce. Even if the plaintiff was not granted a divorce by the people's court in the first divorce proceedings, he can file again after six months. If there are new circumstances and new reasons that can determine that the relationship between husband and wife has indeed broken down during this period, the plaintiff can also sue immediately. Compared with the Marriage Law, Article 1079 of the Civil Code adds a new stipulation: "After the people's court has judged that divorce is not allowed, the two parties have been separated for one year, and one party files another divorce lawsuit, the divorce will be granted." Satisfying the conditions stipulated in this paragraph is sufficient to prove that the relationship between husband and wife has indeed broken down, and the people's court will grant the divorce.

3

Infidelity is a serious breach of husband and wife's duty of mutual fidelity

As a social system, marriage has carried social functions such as economic production cooperation and dual-line rearing since ancient times. Sex, on the other hand, can occur between any men and women, is not easily restrained, and is often unstable and persistent. According to British sexual psychologist Hafke Olerich: "No matter how inclined he or she is to single marriage, some sexually charged emotions can always occur to other people of the opposite sex other than the couple." [1] The free development of sexuality belongs to the biological nature of human beings. But people are social animals, and since they have chosen marriage, sex should be limited to husbands and wives. Mutual loyalty between husband and wife is not only the embodiment of family responsibility, but also the due meaning of social responsibility. The stability of every family is also an important guarantee for the prosperity of the country.

Looking at the comments of netizens, some netizens are of the opinion that cheating cannot be divorced, indicating that the law does not give enough negative evaluation and sanctions for cheating, which condones cheating. In fact, whether it is the Marriage Law or the Civil Code, the basic principle is that husbands and wives are faithful to each other, and they support the innocent party in safeguarding his legitimate rights and interests. According to Article 1091 of the Civil Code: "If one of the following circumstances leads to divorce, the innocent party has the right to request compensation for damages: (1) bigamy; (2) cohabitation with others; (3) Enforcement domestic violence; (4) Abuse and abandonment of family members；(5) There are other major faults. "The fifth item is an added bottom line compared to the marriage law, and the parties have a clearer basis for claiming damages on the grounds of derailment.

In the case of Zhou X v. Zhang X, a typical case of marriage and family disputes published in 2015, the Supreme People’s Court stated the typical significance of the case: “Husbands and wives are loyal to each other, which is not only a traditional virtue, but also a legal obligation. Disloyalty is unbearable dishonesty, it not only destroys the relationship between husband and wife, disintegrates the family, but also hurts innocent children, but also corrupts the social atmosphere and is prohibited by law. Therefore, after the divorce, the defendant's marriage was found The people's court will support it in accordance with the law to demonstrate the justice and moral force of the law." At present, in judicial practice, if the innocent party requests the other party for damages on the grounds of infidelity during marriage, the people's court generally supported。

To sum up, there is no contradiction between preventing rash divorce and safeguarding the rights of the innocent party in the marriage. Married men and women should deal with emotional disputes more rationally, and at the same time use the law to protect their legitimate rights and interests. May every couple have a happy married life.

[1] Quoted from "Rural China (Classic Collection)" (Birth System), Shanghai People's Publishing House, December 2013, first edition, p462.

Statement:

This article was originally created by lawyers of JAVY Law Firm, and only represents the author's own views, and should not be regarded as a formal legal opinion or suggestion issued by JAVY Law Firm or its lawyers. If you need to reprint or quote any content of this article, please indicate the source.