Some Problems Of The Divorce Of Persons Without Civil Action

Divorce is a married couple dissolves the marriage relationship through settlement or litigation. It includes registration divorce and litigation divorce. <The Regulations Regarding Marriage Registration> has detailed all necessary requirements for registration divorce. It requires two parties to have full civil capacity in order to apply for registration divorce. If the divorce registration department will not proceed with the applications submitted by those who do not have full civil capacity. Thus, if one of the two parties does not obtain full civil capacity, the dissolution of marriage has to resort to litigation, which will ensure that the disabled party's lawful rights are well-protected. This article will cite cases to discuss potential issues that could occur during the disabled party's divorce litigation process from a practical stand point. For example, the discussion include issues regarding the determination of whether a person has full civil capacity, disabled party's lawful rights to divorce, conditions for filing divorce and remedies for divorce.This article has four parts except introduction and postscript, totaling 21000 words.The first part is the problem.This part briefly explains the facts regarding the marriage dissolution of plaintiff Zhou and defendant Yang and a few issues raised from this case including the determination of whether a person has full civil capacity, disabled party's lawful rights to divorce, conditions for filing divorce and remedies for divorce.The second part is the determination of disabled person who does not have full civil capacity. This part first describes the concept and characters of disabled person who does not have full civil capacity. It then summarizes different categories of the disabled person based on category analysis. Additionally, this part also discusses about the process of incapacitation determination and some related issues.The third part is about disabled person's rights for filing divorce. The disabled person has equal rights to divorce as the person who has full civil capacity either from freedom of divorce stand point or from the principle of equal and fair prospective. Disabled person's rights cannot be deprived just because of their incapacity. Based on their practical needs for divorce, this part discusses disabled person's rights to divorce from both plaintiff and defendant stand points. Disabled person's legal guardian is critical to help the disabled person file divorce. But the spouse of the disabled person is not suitable to be the legal guardian of the disabled person during the divorce litigation while he or she is the counter party of the law suit. Thus the legal guardian of the disabled person must be re-appointed according to related laws and regulations. This part further analyzes the necessity of reappointment of legal guardian, especially in divorce litigation cases like this. It also identifies the scope of legal guardian and limitation of his or her legal authority in divorce litigations.The fourth part details the conditions for disabled person's filing of divorce and related remedies. Courts should be cautious about the fact-finding of the case and final decision of the case and should consider the relationship between both parties, especially when a disabled person files for divorce. This part first discusses about the conditions for disabled person filing for divorce and whether it satisfies the only legal standard which is break-up of the relationship between two parties. It further analyzes three divorce remedy system including possible financial aids, compensation for divorce damage, and financial remedy from divorce that could be obtained by the disabled person.