The Deficiency And Improvement Of Chinese Divorce Cooling-off Period System

According to the data in the bulletin of the Ministry of Civil Affairs of the People’s Republic of China in recent years,the number of litigious divorces is basically the same as that of 20 years ago,but the number of registered divorces has increased by eight times.This huge contrast is inevitably related to the excessively free registered divorce system in China.In order to cope with the impact of high divorce rate on society and improve China’s divorce system,Article 1077 of the Civil Code of the People’s Republic of China（hereinafter referred to as "Civil Code"）stipulates the cooling-off period of registration divorce（hereinafter referred to as " the cooling-off period of divorce "）,which stipulates that if both husband and wife want to dissolve their marriage through the marriage registration authority,they should go through the cooling-off period of divorce for 30 days before formally going through the divorce formalities.The introduction of the cooling-off period system of divorce in China shows that the national level has attached great importance to divorce.It’s important to emphasize that,this system has aroused heated discussions from all walks of life.Some public and scholars believe that the cooling-off period limits the freedom of divorce and is not conducive to protecting the legitimate rights and interests of the parties.In fact,it has become an international practice to impose necessary restrictions on the freedom to register divorce,which is determined by the social nature of marriage and family relations.The cooling-off period system is a new system,and there is only one provision in the Civil Code,which does have some problems that are not perfect to some extent,such as no clear guiding principles,no different divorce cases treated differently according to the facts,no application to all divorce cases regardless of circumstances,and lack of corresponding supporting mechanisms.This should be based on the problems in the process of exploration and practice of China’s divorce cooling-off period system,referring to the practical experience of litigation divorce cooling-off period,the cooling-off period in litigation divorce can be designated by the court according to the actual situation,and referring to relevant foreign systems.For example,Russia will protect the interests of minor children obliquely when applying the coolingoff period system of divorce,South Korea will be recognized by the court when applying the cooling-off period system of divorce involving substantive review,and Britain will integrate the mediation system into the cooling-off period system of divorce.These beneficial systems will provide a good idea for the perfection of China’s divorce cooling-off period system.We should further refine the cooling-off period system of divorce and establish the applicable principles of the cooling-off period system of divorce,such as the principle of distinguishing application and the principle of protecting the interests of minor children.Clarify the applicable object of the cooling-off period system of divorce,and decide whether to apply the cooling-off period of divorce according to the marital status and whether there is domestic violence.During the cooling-off period,different differences should also be made according to the specific circumstances.For example,couples who have just been married for less than one year and who have been living together for 20 years should be treated differently.According to foreign experience,whether the couple have minor children to support is also an important basis for judging the cooling-off period of divorce.Perfecting the calculation system of the cooling-off period of divorce,analogizing the relevant provisions of the statute of limitations,the cooling-off period of divorce should also be included in during the period of suspension,termination and other calculation methods,in order to cope with different situations in practice.We should ensure that the cooling-off period system of divorce can play its role to the greatest extent in many ways,improve the marriage mediation system,declare the property of husband and wife when the cooling-off period of divorce is applicable,protect the legitimate rights and interests of both husband and wife,develop the marriage and family consultation industry,provide necessary consultation of Psychology and law for both husband and wife,introduce the separation system and carry out localization transformation,and create better conditions for both husband and wife to calmly think about divorce-related matters.