hit drama "Thirty Only" has aired the finale, and the author has just finished chasing the drama because of being too busy at work. The experience of the three heroines in the
drama has caused heated discussions. Among them, the beautiful and sassy full-time wife and elite mother-Gu Jia, in the early stage because of people's liking, are frequently searched for, and the scenery is endless, but the ending is embarrassing. Endless.
Watched the finale, I believe that many viewers are not only about Xu Huanshan and Lin Youyou not exploding with the blue fireworks, but one of them retreats, the other is forgiven, and the other is in jail. It also affects the plot of Gu Jia selling cars and houses to clean up the mess. Extremely dissatisfied. In the
play, Gu Jia tells the story to be continued. So can Gu Jia, 30, divorce the prisoner Xu Huanshan smoothly and set off again?
This article does not evaluate whether the motivation and behavior of the people in the play are logical, and whether the personality collapses, but only discusses the issue of [How to divorce a prisoner in prison] from three aspects on this plot .
1. It is recommended to adopt litigation for divorce
As we all know, under the framework of our existing marriage law, a couple wants to divorce, there are only two ways:
is a voluntary divorce agreement between the two parties, which is supervised by the civil affairs department.
One is a litigation divorce in which the two parties cannot reach an agreement on the divorce opinion, which is generally under the jurisdiction of the people’s court where the defendant is located.
When one of the spouses is a prisoner, it is recommended to adopt litigation for divorce. The reasons are as follows:
Article 31 of the Marriage Law of the People’s Republic of China
If both men and women divorce voluntarily, the divorce is allowed. The parties to the marriage registration office for divorce. The marriage registration agency will issue a divorce certificate when it finds that the two parties are indeed voluntary and have properly dealt with the children and property issues.
"Opinions of the Ministry of Civil Affairs on Several Issues Concerning the Implementation of the " Marriage Registration Regulations"" (Minhan [2004] No. 76) Article 10:
Inmates who apply for marriage registration shall apply in person to the marriage registration authority and have valid results If a prisoner cannot issue an ID, the prison management department can issue relevant certification materials. The agency that handles the marriage registration of prisoners may be the marriage registration agency in the place where one of the parties’ permanent residence or the prison is serving the sentence.
It can be seen that when divorcing with a spouse who is serving a sentence, two conditions need to be met: is voluntary and has properly dealt with children and property issues + personally apply to the marriage registration agency.
However, due to the special circumstances of the prisoners, in order to meet the above two conditions, in addition to the consent of the serving spouse, the prison and the civil affairs department also need to cooperate very high to complete. For practical reasons, unless the prison agrees to be accompanied by a manager to leave the prison, or the civil affairs department cooperates with the home office, it will be difficult to achieve the purpose of divorce by agreement.
2. The court of jurisdiction for divorce
, which filed a divorce lawsuit against a spouse who is serving a sentence, shall be under the jurisdiction of the people’s court where the plaintiff is located.
is based on the following:
Article 22 of the Civil Procedure Law of the People’s Republic of China
The following civil litigation shall be under the jurisdiction of the people’s court where the plaintiff’s domicile is located; if the plaintiff’s domicile is inconsistent with his habitual residence, it shall be under the jurisdiction of the plaintiff’s habitual residence people’s court: (4) Lawsuits brought against the imprisoned person.
If both parties are serving sentences, is under the jurisdiction of the people's court where the defendant is located.
is based on the following:
"Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China" (Fa Shi [2015] No. 5) Article 8
If both parties are imprisoned or taken compulsory education measures, The people's court at the place of the defendant's original residence has jurisdiction.
If the defendant is imprisoned or has been subjected to compulsory education measures for more than one year, the jurisdiction of the people's court in the place where the defendant is imprisoned or the compulsory education measures is taken.
3. Can the divorce be sentenced at one time? When it comes to divorce, the most concerned issue for the party who has made up his mind and has resorted to law is how long the divorce can be successful. In judicial practice, the court takes "whether the relationship between husband and wife is broken" as the basis for the trial, and adheres to the tradition of "I would rather demolish a temple than destroy a marriage".According to the principle of ethics, may not be sentenced to divorce for the first time, except that there is a legal cause for divorce, which should be sentenced after mediation is invalid. However, if the divorce is not allowed for the first time, it will take 6 months to file a lawsuit again.
And when one spouse is punished by criminal law for illegal or criminal acts, can it be the basis for proof that "the relationship between husband and wife has indeed broken"?
Look at the legal basis:
"Several Specific Opinions of the Supreme People's Court on How the People's Court Determines that the Couple's Relationship Has Broken in a Divorce Case" (Fa [Civil] Law [1989] No. 38)
The People's Court shall approve or deny a divorce case Quasi divorce should be based on whether the couple’s relationship is broken or not. To judge whether the relationship between husband and wife has indeed broken down, a comprehensive analysis should be made in terms of the basis of marriage, the relationship after marriage, the reason for divorce, the current situation of the relationship between husband and wife and the possibility of reconciliation. According to the relevant provisions of the Marriage Law and trial practice experience, in any of the following situations, the relationship between the husband and wife is deemed to have broken down. One party resolutely requires a divorce, and after mediation is invalid, can decide to grant the divorce according to law.
11. One party was sentenced to long-term imprisonment in accordance with the law, or his illegal or criminal behavior seriously hurt the feelings of the couple.
carefully check the above-mentioned laws and regulations, the terms of the Supreme Law are "long-term imprisonment", "seriously hurt the feelings of husband and wife" and so on. After searching for judicial case analysis, the author still needs to discuss each matter and analyze concretely in trial practice. Since one spouse has been in custody for a long period of time, it has been unable to perform the obligations of the husband and wife for a long time, and it is difficult for both parties to repair the relationship between the husband and wife. The court generally supports it. If one spouse commits a crime of rape or forced indecent assault, the court will also support it as appropriate. The above
is an analysis of the divorce guidelines for the case where one spouse is a prisoner. For more legal knowledge and practical knowledge about marriage law, stay tuned.
