Impact Of The Cooling-Off Period Of Agreed Divorce On China’s Litigation Divorce And Its Countermeasures

Family,as the refuge of personal life and the stabilizing factor of social order,is related to social stability.In recent years,the divorce rate in China has been rising continuously,which poses new challenges to the stability of marriage and family and the long-term stability of society.In order to reduce the phenomenon of impulsive divorce and hasty divorce and control the divorce rate,China’s Civil Code has added a cooling-off period for divorce in the registered divorce system.At the same time,China’s divorce system belongs to the dual-track parallel system of registered divorce and litigation divorce,which complement each other and influence each other.The establishment of the cooling-off period of registered divorce will inevitably have a certain impact on the litigation divorce system.This paper puts forward: First,due to the mandatory application of the cooling-off period of registered divorce,legislation has no restrictions on the choice of two divorce methods,and in practice,there is a more convenient divorce method,which will lead to an increase in the number of litigation divorces.Secondly,the cooling-off period of litigation divorce is applicable ex officio.After adding the cooling-off period of registered divorce,it will inevitably lead to abuse such as delaying judgment,which will increase the burden for people who fail to register divorce and turn to litigation divorce.Thirdly,one of the justifications for the existence of "second divorce" is that there is a freer and faster way for the parties to choose.However,after setting a cooling-off period for registered divorce,its convenience is greatly reduced,and the justifications are bound to be impacted.Therefore,facing the impact caused by the cooling-off period system of registered divorce,China’s litigation divorce system should respond.First of all,we should adjust the relationship between registered divorce and litigation divorce,and restrict the parties from filing divorce proceedings in the court during the cooling-off period of registered divorce,except that one party has domestic violence,abuse,abandonment and transfer of property during the cooling-off period;In order to avoid speedy divorce becoming a means to avoid the cooling-off period of registered divorce,the applicable conditions of speedy divorce should be made clear.Only after the registered divorce fails,the procedure of speedy divorce can be applied,and the interval between applying for registered divorce and filing divorce proceedings should not exceed six months.Secondly,in order to avoid overlapping functions between the cooling-off period of litigation divorce and the cooling-off period of registered divorce,the applicable premise,applicable object and applicable exception rules of the cooling-off period of litigation divorce should be clarified.Finally,although "second divorce" loses its rationality of existence,it is impossible to divorce all the first lawsuits,and the six-month ban period will still exist.Therefore,we should abandon the practice of "second divorce judgment",put forward "death in marriage relationship" as the standard of divorce judgment,let the judge dare to make the decision of divorce judgment,and establish the system of return visit after the case,so that the six-month ban on litigation can really become a period of cooling down contradictions.