| Marriage is the basis and premise of family formation,while divorce means the disintegration of the family and may cause social problems,so it has been a concern.The condition of divorce only decides whether the parties can divorce,but it is the premise of raising children,dividing property and so on.When the couple reach an agreement on the divorce itself and related matters,they can dissolve the marriage by registering the divorce,but if there is a dispute,the marriage will be decided by litigation.In recent years,the divorce rate continues to grow,causes the complexity of the divorce makes people divorce,more and more attention because of litigation there is dispute on both sides,the judge when apply divorce conditions need to consider the balance between freedom and order value as well as between the parties to protect the interests of,so this article focus on the current litigation divorce conditions should be how to understand the problems that exist in the suitable and applicable.At the same time,in view of the conditions of divorce proceedings,the third draft of the civil code on marriage and family mainly added the provision that "for the first divorce proceedings after the judgment of divorce is not allowed,separation for one year,the second divorce should be decided",namely "second divorce proceedings" clause,and then the statement changes a little bit.This article is the summary of the judicial practice experience and the embodiment of the "second divorce rule",whether this provision is reasonable or not,how to apply it can be further discussed.This paper focuses on the subject of divorce conditions,in the first chapter,the author first expounds the legislative purpose of divorce litigation,and then analyzes the historical evolution and current provisions of divorce litigation conditions in China since the founding of the People’s Republic of China to grasp its evolution process and legislative intention,as the prerequisite of the scientific litigation divorce conditions apply.The second chapter points out the problems existing in the practice of the conditions of divorce in litigation,that is,the imperfect mediation mechanism.The defects of incomplete coverage and difficulty in judgment exist in the criterion of emotional breakdown."Absolutist relativism" occurs frequently and the improper practices are denied.The cases not listed are not applicable and improper judgment by default may lead to the absence of rights protection.In the third chapter,the following solutions and Suggestions are put forward: improving the mediation mechanism;To expand the understanding of "emotional breakdown";Objectifying the subjective standard and providing some reference standards;Some common unlisted cases are provided.This can be avoided by investigating the cause of the absence when one party is not in court and by granting divorce on the grounds that a declaration of disappearance is a common prerequisite for "missing persons".At the same time,faced with the drawbacks brought about by the "relationship",mainly used in the judicial practice of the approach is "secondary procedure rules",so in the fourth chapter,first of all,the article analyzes the present situation and causes,and the "second divorce proceedings" this made an evaluation of the new provisions,points out its added operational standards,to help reduce litigation happened many times,but the only fly in the ointment is for six months "separation" is more reasonable,also highlighted its as supplementary provisions shall be applicable,avoid mechanization applies.The purpose of this paper is to help to avoid or solve the problems in the application of divorce conditions under the premise of ensuring the legal stability,fully realize the unification of the value of "safeguarding the freedom of divorce" and "opposing the rash divorce",balance the interests of the parties through the reasonable application of norms,and resolve the contradictions between family and society. |
