On The Divorce Cooling-off Period System In China

The State Council in China amended and promulgated Regulation on Marriage Registration On August 8,2003.The Regulation on Marriage Registration was simplified the procedure of divorce registration in Ministry of Civil Affairs.Up to now,the divorce rate is ever-increasing.In order to prevent hasty divorce and impulsive divorce,in divorce of litigation,after summarizing the pilot work of courts in many provinces in China,Supreme People’s Court released and implement Opinions of the Supreme People’s Court on Further Deepening the Reform of Family Adjudication Methods and Working Mechanism(For Trial Implementation),which is stipulated the cooling-off period for divorce proceedings,Article 40.In handling a divorce case,the people’s court may,with the consent of both parties,set a cooling-off period of not more than three months.During the cooling-off period,the people’s court may,according to the circumstances of the case,carry out mediation,family investigation and psychological counseling.When the cooling-off period is over,the people’s court shall notify both parties.Although the cooling-off period regulations have been stipulated already,in divorce dispute cases,courts in many provinces for the cases of a cooling-off period are not always accounted for.In the legislative process of China’s civil Code,after reference to foreign divorce cooling-off period and other relevant regulations,combined with the actual situation of our country and the pilot in some provinces in our country,and having been seeking for lots of opinions,in the fifth part of the Civil Code of the People’s Republic of China,article 1077 of Marriage and Family,the civil affairs department also adds the provisions of divorce cooling-off period.Within 30 days from the date when the marriage registration authority receives the application for divorce registration,if either party is unwilling to divorce,it may withdraw the application for divorce registration to the marriage registration authority.Within 30 days after the expiration of the time limit prescribed in the preceding paragraph,both parties shall apply in person to the marriage registration authority for the issuance of divorce certificates.If no application is made,the application for divorce registration shall be deemed to have been withdrawn.There are no relevant regulations in interpretation of Marriage and Family in Civil Code(I).Neither in other judicial interpretations or laws.Since the cooling-off period of divorce in China’s Civil Code applies to all couples who register for divorce in civil affairs departments,there is no provision for special cases,and there is a "one-size-fits-all" situation.In the courts hearing divorce dispute cases,due to the judicial tendency of "second judgment" and subjected to lacking of the number of judge,the cooling-off period regulations are not applied in the divorce dispute cases as always.The cooling-off period regulations haven’t created a positive effect as expected.Since the civil Code has not been implemented for a long time,the actual impact of divorce cooling-off period on divorce rate and other related factors is yet to be calculated by Ministry of Civil Affairs.This paper,taking China’s divorce cooling-off period legal system as the research object,data analysis method,literature analysis method and other research methods adopted,foreign divorce cooling-off period system and its actual impact on the country as references,in combination with the actual situation of registered divorce and litigation divorce in China,and focuses on China’s judicial practice,taking Article1077 of the Civil Code and Article 40 of The Opinions of the Supreme People’s Court on Further Deepening the Reform of Family Adjudication Methods and Working Mechanism(For Trial Implementation)as research objects,analyze the related problems,point out the deficiency of divorce cooling-off period in divorce litigation and divorce registration,and put forward the corresponding improvement suggestions,in order to perfect the divorce cooling-off period system in China and promote marital relationship stability and social stability.