On The Application Of The Limitation Of The Cooling-off Period System For Divorce

Article 1077 of the Civil Code clearly regulates the cooling-off period system for divorce in two paragraphs,imposing the necessary procedural restrictions on the registration of divorce by requiring the spouses to apply for divorce registration twice during the cooling-off period for divorce.The Ministry of Civil Affairs subsequently issued departmental regulations adjusting the divorce registration procedure.At present,the cooling-off period system for divorce is limited to a single and abstract legal provision,and its scope of application does not distinguish between the types of divorce and exclude the application of the cooling-off period for divorce.This "one-size-fitsall" model makes the divorce cooling-off period system too wide,which has triggered a gathering of disputes in the field of marriage and family law theory and judicial practice.According to the connotation and extension of the cooling-off period system for divorce,the reckless divorce and collusive divorce situations that the system intends to restrict are taken as the main line of application of the system,and it is advocated that the cooling-off period be excluded from special divorce dispute situations by adding steps for registering for divorce review.The current dilemma of the scope of application of the cooling-off period system for divorce requires a response from both theoretical and practical circles,and the author believes that the necessary and reasonable explanation of the system should be given as soon as possible.First of all,by clarifying the scope of application of the interpretation of the divorce cooling-off period system,this paper discusses the feasibility of choosing litigation divorce in the face of the restrictions of the cooling-off period in the special situation of registered divorce procedures.Secondly,this paper analyzes the problems of the "one-size-fits-all" application model of the divorce cooling-off period system,which are mainly manifested as contradictions with the conditions for litigation divorce,excessive restrictions on the freedom of divorce,and aggravation of the damage of the weak party in divorce.Third,we cite theoretical research on interdisciplinary disciplines such as law and psychology to demonstrate the legitimacy of limiting the scope of application of the cooling-off period system for divorce.The legitimacy of the cooling-off period system for divorce stems from helping the parties to remain rational and thus express the true meaning of divorce.Therefore,except for the cases of frivolous divorce and collusion in divorce,in fact,they should not be included in the reasonable scope of the cooling-off period system for divorce.Finally,according to the principle of purposeful limitation,the scope of application of the cooling-off period system for divorce is limited to cases of rash divorce and cases of collusive divorce,and other divorce situations in which the cooling-off period system for divorce should not be applied are excluded.In addition,due to the limited staffing of marriage registration offices,women’s federations and people’s mediation committees have more practical experience in social life.The author advocates that the application of the cooling-off period system for excluding divorce can be carried out in two steps,first by the formal review by the administrative staff of the registration authority and the "desensitization" of the evidence,and then by special divorce mediators to conduct the evidence review.It should be noted that the standard of proof in the above-mentioned evidence review procedure is different from the high probability standard in litigation divorce.After the establishment of the review mechanism,it is also convenient to fill the disadvantage of the single rigid application period of the divorce cooling-off period system,and the law enforcement agencies can flexibly apply the cooling-off period of different lengths according to the specific marital status.