Contents
 
 
       Part Ⅰ How should the plaintiff draw an pleading?
(1) The pleading is the essential legal document in divorce cases. The following is the typical format of plaints.
A civil pleading
      The plaintiff, Mrs. Wang: born on April.3.1976, the Han nationality; a worker in X factory. Add: X, X Rd, at X City. Postal code: 200XXX. Contact: 13368888X88.
The accused, Mr. Zhang: born on April.20.1973, the Han nationality; company employee. Add: X, X Rd, at X City. Postal code: 200XXX. Contact: 13368888X88.
        Requests for the lawsuit:
      1. Both parties request to get divorced through proceedings.
      2. The son born in wedlock is brought up by the plaintiff and the defendant should pay 1500 Yuan as the costs of aliment per month.
      3. Common property shall be divided in line with laws. (A detailed list is attached in the end.)
      4. Expenses for the lawsuit are borne by both parties.
Facts and reasons:
      The plaintiff and the accused got to know each other in 1999 and received the marriage certificate without further contacts, in order to get the house allotted by the unit. During the first half year of their marriage, the defendant’s treatment to the plaintiff was accessible. However, with time went by, the defendant’s violent behaviors, chauvinism and suspicious characters gradually exposed. He beat or condemned his wife at any time with all the things accessible at home，causing his wife contusions of soft tissue or fracture for many times (with medical treatment as evidence). The plaintiff was so sorrowful that she determined to get divorced, however, she found she was pregnant at that time. She had thought that the defendant would have changed his attitude and restrained his tempers with a view to his child. On the contrary, the defendant beat and scolded her even more during her pregnancy, nearly killing the child at the eighth month.
      After the child arrived, the defendant didn’t repent but left the plaintiff and the child alone by always staying overnight outside. The plaintiff, for the sake of the child, put up with his violence over and over, but her tolerance was regarded as weakness. Such kind of situations turned to be more violent on the 15th day last month. The plaintiff was seriously beaten with her head broken and bleeding, her back slightly hurt when she dissuaded him from gambling.
      The plaintiff’s hope for maintaining the family relation was broken again and again. Reluctant to let alone her little kid, she gave up committing suicide for several times. Now, the plaintiff has made her mind to end the marriage only existed in name and has a brand-new life, looking forward to forming a warm family like every common woman.
To sum up, the plaintiff and the defendant’s marriage has already broken down, so pursuant to Article 32 of Marriage Law, the plaintiff requests the court’s support to safeguard her legal rights and interests.
       Sincerely yours,
      The People’s Court at Pudong New Area, Shanghai
      The plaintiff: Mrs. Li XX
      August.1.2005
      (2) From the above sample of plaint, we can find that the plaint consists of three parts:
      ① Background information of the plaintiff and the defendant
      ②The plea
      ③Facts and reasons concerning the plea
      (3) According to our practical experience, the following issues should be paid attention to in writing the plaint.
      ①Ways of contact of both parties should be especially clear and definite.
      The court usually requests the party involved to fill in a confirmation letter of the delivery address when you present a plea, for the purpose to confirm the address for serving summons and other legal documents, otherwise, the plaintiff should bear responsibilities of delay due to mistakes of addresses. Background information of both parties is of great importance to the plaintiff, as the court serves summons or inform the opposite party based on addresses and contact provided by the plaintiff. For example, in some local courts in Shanghai, the judge informs the opening of a court session by sending the court summons to the address of the defendant instead of calling, so if the defendant doesn’t show up because of not receiving the summons, it is really a time-wasting job and undermines the court’s dignity.
      Hence, the specific address, postal code, phones should be clearly written down in the plaint. Some judges may inform the party involved of getting the court summons or the notice in person through phones, so the correctness of telephone No. also counts for a lot.
      ②Property inventory and court lawsuit fees are closely connected.
      In divorce cases, affirmation of marriage breakdown and property disputes is conducted together, which means the court lawsuit fees are charged based on the amount of controversial property. So, the property inventory is required by the court. How to list common property will be described in details in the next part.
Anyway, I don’t suggest the plaintiff fabricating or making an false report on proceedings, which will lead to antipathy from the court officials or make you lie in a negative situation.
      ③The contents of the plaint should be brief and to the point instead of a lengthy speech.
      Some divorce plaints contain several pages, including things from soup to nuts without focuses, as the party involved thinks that a lengthy plaint can grab more attention from the judge. However, it is not the truth, and sometimes it will even confuse the judge by various reasons for marriage breakdown. Anyway, a plaint full of complaints about the defendant is not recommendable. In conclusion, the plaint should be brief and to the point instead of a lengthy speech.
      ④Don’t try to play up or fabricate the defendant’s unfavorable things.
      Some plaintiffs may excessively depict the defendant’s faults or fabricate facts of their family life for the purpose to leave a favorable impression on the judge. Practice proves that this is really meaningless. The most important function of the plaint is to bring about the lawsuit, so excessive description about the other party’s right and wrong isn’t necessary at all. To some extent, a plaint full of complaints may even make the judge get angry, not beneficial to the mediation later.
      ⑤Don’t fabricate things without evidence.
      Out of the mouth comes evil, so does the plaint. Right and wrong of the past experiences of both parties cannot be expressed clearly. The judge couldn’t witness them; neither could the lawyer. Therefore, the judge may not trust the evidence presented by the plaintiff without other irrefutable evidence. It is better that the evidence without irrefutable evidence should not be mentioned in the plaint, avoiding to be a cause for gossip to the other party. For instance, the female party claimed that their marriage broke down due to the male party’s extramarital affairs without the irrefutable evidence about the male party’s exceptional behaviors, as he might emphasize that the female party’s excessive suspicion was the main reason for the temporary breakdown.
       Part Ⅱ which materials are needed for filing a case?
      More than 70 % of the parties involved in divorce cases haven’t brought a case to court before. So, generally, what kinds of documents are needed for registering the divorce case?
      (1) The civil pleading.
      Issues for attention in writing civil plaints have been illustrated in the last part.
      (2) ID cards
      The plaintiff’s ID card and its copy are needed.
      (3) Marriage Certificate (Testifying the marital status)
      Only one marriage certificate is needed. In case the plaintiff’s marriage certificate has lost or cannot be obtained from the defendant’s place, the plaintiff can issue 《Certificate for Marital Status》at the original matrimonial registry or copy the relevant materials of registration for marriage, with the official stamp of the registry.
      (4) The property inventory.
      The property inventory is one of the most important materials for register, as the court lawsuit fees are charged based on the total amount of property in the inventory. Pursuant to the regulations in The people’s court’s charge methods for court lawsuit fees, in divorce cases, in case the controversial property is below 10,000 Yuan, the court lawsuit fees are 50 Yuan; In case more than 10,000 Yuan, the part over 10,000 Yuan is charged with 1%. For instance, if both parties have controversial property of 500,000 Yuan, the court lawsuit fees are calculated as follows: 50 Yuan + 4900 Yuan = 4950 Yuan. Another example, if both parties have controversial property of 1,000,000 Yuan, the court lawsuit fees are: 50 Yuan + 9900 Yuan = 9950 Yuan. In big cities like Shanghai, Beijing, Guangzhou, etc, though common people don’t possess property in a huge sum, a set of premises is worth more than 100,000 Yuan to one million, or even several million Yuan, therefore, the parties involved have to pay quite a lot for the court lawsuit fees.
      However, to be specific, items in the property inventory refer to the controversial property of both parties that need the people’s court’s mediation, In other words, there is no need to cover the part of common property both parties have reached agreements on in the property inventory, to avoid unnecessary court lawsuit fees.
      After going to law, the plaintiff and the defendant still have the chance to settle out of court through divorce by agreement based on unanimous agreements of both parties. But only half of the court lawsuit fees can be refunded if both parties decide nolle prosequi after negotiation. Hence, the parties involved should make up their minds after serious thought. With regard to the court, it can request the plaintiff to make up for the due court lawsuit fees based on the open controversial property.
      In addition, in the process of the divorce case, usually, the court shall make a detailed investigation on the property before marriage and after marriage, therefore, in case some common property needed for the court’s mediation is missed out in the property inventory after the register, the plaintiff can submit to the court within the time limit of evidence collection.
      Furthermore, some common property in the inventory is difficult to assess the current value, such as real estates and cars. Usually, the housing prices are appreciating, while the car prices are depreciating. If the value is quite at odds with the purchasing price, you can assess a rough figure for the court to charge the court lawsuit fees, with two characters “temporary assessment” added after the figure in the inventory, to avoid the other party argues the figure in the future.
      For instance, the male party presented a plea for divorce and he assessed the premises at 300,000 Yuan in the property inventory (The flat was purchased at 200,000 Yuan six years ago.), but the housing price in the market has soared to 500,000 Yuan. Under the judgment, the female party bears the responsibility of child custody and possesses the premises, while the male party gets the housing depreciation payment from the female party at 300,000 Yuan based on the figure in the property inventory attached to the plaint. Eventually, both parties have to revoke the lawsuit to reverse the situation. Of course, the male party can resolve the dispute rather than nolle prosequi, but on the other hand, the plaintiff shouldn’t neglect the tactics and lawful knowledge in this simple property inventory.
      Last but not the least, in case the party involved commissions a lawyer to register the case, a letter of authorization should be submitted to the court with the lawyer’s signature when placing a register or after the register. In case the law firm is commissioned, an official letter with the law firm’s stamp should be submitted as well.
       Part Ⅲ What are the common questions of filing a case?
Register is the key point in the lawsuit and the following aspects should be paid attention to when you place a register in the court:
      (1) Security check before the court
      Anyway, it is hard for the court to make both parties satisfy with the judgment in one case and reach 100 % rightness in every case. Hence, incidents such as some extremists, out of dissatisfaction or even resentment to the judgment, harass the court’s order by carrying lethal weapons or explosives with themselves, often happen these years. Many courts set up the security check procedure to all the personnel passing in and out the court. Some courts, for example, the Supreme People’s Court in some provinces, all the personnel, including lawyers need to accept the security check. So I’d like to remind you that it is not necessary to feel uncomfortable but to show due understanding to be requested for the security check before the court, especially to those who haven’t been to the court before. Some security check will be conducted by the judicial police constable in the court, but in some big cities, like Shanghai, such checks will be conducted by the security guards from a security service firm. The majority police constables and security guards are conscientious and hold the manner to serve the people, but some individuals may be indifferent, which is quite at odds with the justice of the people’s court, making some people feel uncomfortable. Anyway, mutual understanding should be taken as priority.
      (2) Preliminary check before the register
      The majority of courts set up the preliminary check window, conducting a preliminary check of the case before the register. The purpose of this procedure is to reduce the workload of the clerks for register, screening out those cases not up to standard or short of necessary materials. To some extent, the procedure of preliminary check is meaningful. Take Shanghai as an example, the courts in Minhang, Pudong, Hongqiao, etc set up the preliminary check window for examining formality materials for register, usually not touching on the substantial issues. I worked as a lawyer in the hinterland for 4 years, so I knew in some small cities or counties, the courts also set up the preliminary check procedure. Most officials for preliminary check work conscientiously with qualified ethnic performance and good quality, while to the individual, their shortcomings are mainly reflected on the following two aspects:
      First, time-consuming. Some officials for preliminary check carefully investigate the case and repeatedly inquire the official for register. The case itself is not that complicated but the preliminary check takes for more than 20 minutes or even half an hour. Besides, once we applied for register in the court of X District in Shanghai, the line waiting for the preliminary check was very long, but there was only one official for the check, you could image the efficiency. The three officials for register could do nothing but wait for the qualified case.
      Second, making the conclusion too earlier. Some officials don’t check the materials for register based on the procedure whether it is subject to Article 108 of The Civil Procedure Law of the P.R.C but by the fact whether the party’s request is tenable. Some officials even analyze success or failure of the case to the party involved. For instance, “Your request is sure not to be accepted by the judge” or “You have little chance to win the case” and so on. However, such words are really bewildered to lawyers lining up at the back, as such conclusions should be made by the judge in charge, but now the case hasn’t gone through the court session. Of course, such circumstance is individual and the officials for the preliminary check are usually more confident to the materials prepared by the professional lawyers and give the pass soon.
      (3) The court for filing the case.
Subject to Article 22 of The Civil Procedure Act Law, civil actions presented by citizens should be conducted by the local people’s court of the plaintiff habitual residence; In the event that the plaintiff doesn’t live where his/her registered permanent residence locates, the case should be conducted by the local people’s court where the plaintiff constantly resides.
      Thus, to the general divorce cases, the defendant should appear in the court where the plaintiff takes the legal action. habitual residence herein refers to during the time period from the plaintiff leaves the place where his/her registered permanent residence locates up to the beginning of the lawsuit, the party has resided at the place continuously for more than a year.
      For instance, the male party and the female party got married through the court of Changning District in Shanghai in 2001. The male party’s Hukou is in Changning District, while the female’s is in Putuo District. After the marriage, both parties purchased the premises in Pudong new area in Shanghai but didn’t move in their Hukou. Up to the beginning of the lawsuit, both parties have continuously lived in the premises in Pudong new area for 2 years. In case the male party brings a divorce case to court, the register should be conducted by the people’s court in Pudong new area.
In case the defendant is abroad or is serving a sentence, the plaintiff should take the divorce lawsuit in the court where his/her registered permanent residence locates.
In addition, courts in different places have some difference on ranks. For example, in Shanghai, general divorce cases shall be conducted by the local People’s court, while the disputed property amounts to more than 5,000,000 Yuan, the intermediate People’s Court shall conduct the case for first instance.
      In fact, the majority of divorce cases should be conducted by local people’s courts for first instance.
      (4) How to deal with the situation when the other party disappears
      In recent 10 years, owing to one party’s disappearance, the situation that the other party is difficult to make registration for divorce seems to be more and more frequent. Previously, some courts didn’t accept the request for the reason that the opposite party’s address was not clear and definite, pursuant to the conditions for register in Article 108 of 《The Civil Procedure Act》. Some courts may conduct the case after the party had gone through the relevant legal procedures that the party declared the opposite party disappeared or died. Such methods not only bring about huge economic and time costs, but also may last for several years if the opposite party’s whereabouts is hard to ascertain, which is really against the time’s development and efficiency. So, nowadays, more and more courts adopt the methods of serving the summons through public announcement.
      On October.9.2004, the Judicial Committee of the Supreme People’s Court’s meeting of No.1328 passed the Interpretation of No.17 (2004) judicial review, which covers solutions for the people’s courts to the situation that the court summons cannot be served to the address of the defendant provided by the plaintiff in civil cases. It puts, the plaintiff should offer more information if the court summons cannot be served or are detained to the address of the defendant provided by the plaintiff; in case the plaintiff cannot offer more information due to objective reasons or the information is of no use, the people’s court should serve the court summons through public announcement and the people’s court has no right to turn down or close the party’s request only for the reason that the plaintiff cannot provide true and accurate address information about the defendant. Besides, the review also stipulates that the people’s court should inquire other parties’ address information based upon the plaintiff’s application, as the party involved is not permitted to inquire himself/herself subject to the relevant regulations.
The detailed ways of the general courts:
      First, one party brings a divorce case to the court for register.
      Second, the court serves the court summons to the defendant to the address provided by the plaintiff, if the summons is sent back, it initially proves that the defendant maybe disappears.
      Third, the plaintiff offers more information about the other party to the court or the relevant departments, to further ascertain that the court summons cannot be direct served to the specific address.
      Fourth, the court releases public announcement in bulletin or the relevant media to serve the court summons. The announcement covers the defendant’s rights & obligations and legal consequences of not appearing in court. To domestic divorce cases, the time limit of public announcement is 60 days; while to the foreign divorce cases, it lasts for 6 months.
      Fifth, in case the announcement expires, the summons is presumed to be served. The court session shall adopt default judgment. Generally speaking, the divorce shall be adjudicated.
      Of course, to some extent, such methods also have abuses. In practice, once one party claimed that the other party disappeared out of a bad intention and collected relevant evidence to the court, for the purpose to dissolve the bond of marriage and take possession of property, making the other party whose whereabouts is not definitely uncertain ignorant of the divorce. As the judgment for personal relations cannot be amended or reviewed, once such malicious act is gained, the other party’s damage cannot be redeemed.
      (5) The court requires providing relevant evidence in case short of necessary materials.
      We have mentioned 4 kinds of specific materials that should be submitted for register, but sometimes, the judge in charge may request the plaintiff to submit other evidence with a view to the specific case. For instance, once the male party brought a divorce case to court. In the plaint, the female party’s address was in Luwan District; while in her booklet of registered permanent residence was in Zhabei District. After the court investigation, the judge required the male party providing the evidence testifying the female party’s Hukou was in Luwan District. The court shall not accept the register if the male party couldn’t afford relevant evidence from the residential committee or the estate management institution. Under such circumstance, the male party had no choice but to turn to the law firm for help. After checking the materials for register, we found that the address of the female party in the booklet of registered permanent residence was not in line with her actual dwelling. Generally, as long as the plaintiff provides the defendant’s specific address, which is in conformity to regulations in Article 108 of The Civil Procedure Law , however, in this case, the plaintiff also submitted the female party’s booklet of registered permanent residence, which was unfavorable evidence to the male party. As the court had to take the jurisdiction into account, the male party was requested to give relevant evidence. In conclusion, what kinds of materials are needed and what kinds are not should also be taken seriously.
      (6) Issues concerning the cost of proceedings.
      You shall be required to pay the court lawsuit fees after the completion of the register procedures. Pursuant to the relevant laws and regulations, the court lawsuit fees should be paid within 7 days after register rather than at the certain day for register. Overdue the court lawsuit fees shall be regarded as abandonment of appeal.
      Generally speaking, the case shall be handed over to the court of civil trial within 2 or 3 days. If the court has branch divisions, such as in Pudong and Minhang Districts in Shanghai, the case may be handed over to the branch division. Therefore, it is necessary to ask about the court of trial for the sake of contacting the judge in charge instantly. In Shanghai, in nearly every court, the fixed collegiate bench is set up for divorce cases, as there are more than 20,000 pieces of divorce cases annually in Shanghai. Last but not the least, if the judge in charge of the case cannot be informed of at the certain day for register, the party involved can contact the officer for office duty in the civil court later.