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Part I: What are the types of the court judgment?
(1) Nolle Prosequi.
Mediation for divorce proceedings is the essential procedure in the divorce cases, so the plaintiff in an unstable mood may reverse the lawsuit in the process of the trial. Generally, the plaintiff may reverse the lawsuit for the following reasons:
First, the plaintiff and the defendant have come to agreements on divorce, so they have registered or expect to register divorce at the civil affairs bureau.
Second, the plaintiff reverses the divorce proceedings due to the defendant’s repentance.
Third, the defendant strongly opposes to divorce and the plaintiff accepts the judge’s suggestion for nolle prosequi.
Fourth, other reasons.
The person involved who reserves the divorce proceedings in the process of trial should bear these two responsibilities.
First, after the request for nolle prosequi is approved by the court, the person involved cannot regret and the lawsuit is concluded.
Second, within 6 months from the date the judgment of nolle prosequi enters into effect, the person involved cannot take another divorce proceedings to the court.
(2) Reconciliation agreement.
Mediation penetrates through the whole divorce proceedings. Through the judge and the lawyer’s mediation, it is quite normal that both parties come to agreements on property division and child custody. The judge may make a reconciliation agreement based on the notes of mediation between both parties. Once the reconciliation agreement is signed by both parties, it instantly has legal effect and any party cannot appeal for review. In conclusion, the legal effect of the reconciliation agreement mainly reflects on the following two aspects:
First, the agreements in the reconciliation agreement concerning divorce decision, property division and the child-care right have legal validity, in case one party regrets or is unwilling to fulfill the responsibilities, the other party can apply for the court’s enforcement.
Second, after the reconciliation agreement is signed by both parties, it instantly enters into effect and both parties have no right to appeal for review.
(3) The judgment or adjudication.
In case through the regular procedures of trial, both parties cannot reach agreements on disputes, the court shall make judgment subject to facts and the concerning laws. A regular judgment for divorce shall consist of the following contents: adjudication for divorce, measures for property division, the child-care right, payment of cost of maintenance and rights of visits, etc. The legal validity of the judgment mainly reflects on these two aspects:
① Except for the Supreme People’s Court’s judgment, any party can lodge an appeal to the higher court since the judgment for divorce is served.
② The judgment for divorce enters into effect in case there is no appeal within 15 days, meanwhile, any party has the right to apply for enforcement to the court for first instance.
Part II: How should the parties read judgment or adjudication?
Mostly, the persons involved may first read the result from the end, while they seldom carefully analyze or weigh the words and legal grounds. Three parts in the judgment should be paid special attention on.
① The court has ascertained that…
② The court holds that…
③ The court has made the following judgments…
The court investigation and the court opinions are legal grounds for the final judgment. Other contents such as “The plaintiff claims that…” or “The defendant argues that…” are adapted from the statements in the trial or the plaint and the pleading, which are cited by the court. Only the contents about “The court holds that…” represent the court’s opinions on the facts of the case and the application of the laws. In reading the court judgment, you’d better take notice of the following issues:
(1) Whether the court has a correct understanding about the basic information of both parties and their history of getting married.
For instance, basic information of both parties herein refers to names, time of getting to know, time of marriage and time of giving birth, etc. Generally, mistakes of such basic information shall not impart the validity of the judgment, but mistakes on names or date of birth maybe cause big troubles later, especially names of foreign nationals. Therefore, in reading the judgment, the persons involved should take notice of such small details and request the court to amend them in time.
(2) Whether the court has a correct understanding about the matrimonial basis and relations after marriage between both parties.
In the process of the trial, the court shall investigate the facts such as how both parties got to know each other and how was their relations after marriage. For instance, did both parties fall in love through friends or on their own will? How were their relations at the beginning of the marriage?
(3) Whether the court has a correct understanding about reasons for the marriage breakdown.
Generally, the court shall investigate the reasons for the marriage breakdown of both parties. It is natural that the plaintiff and defendant may hold different opinions on reasons for marriage breakdown out of their own purposes or different understandings. For instance, one party claims that both parties have faced marriage breakdown and they have no hope to become reconciled, while the other party argues that they just quarrel owing to some family trifles. Or one party claims that the other party has extramarital affairs, while the other party denies and argues that it is groundless suspicion. Therefore, the court’s judgment upon the reasons for marriage breakdown is of great importance to both parties. Generally speaking, the court’s principle for judgment is “the party who raises disputes should afford the concerning evidence”. If the evidence presented by the party is authentic, integrated and lawful, and the other party cannot afford effective disproof concerning this, the court shall generally accept the party’s argument.
(4) Whether the court has a correct understanding about the common property.
In divorce cases, the scope of common property is unquestionably one of the biggest disputes. Generally, if the judge doesn’t adjudicate divorce in the first trial, common property shall not be divided, but the court’s identification of common property is of great significance to the next lawsuit.
Information about common property needs to be investigated:
First, information about real estates. For instance, time and price of purchasing the premises; sources of payment, such as down payment, loans, the main creditor, the current balances of loans, persons put down in the Certificate of Title, the present dweller and so on.
Second, information about movable property. Movable property herein refers to bank deposits, stocks, enterprise equities, cars, precious metals, funds possessed by both parties, including valuable articles like furniture, domestic electric appliances (specification, brands and measurement, etc)
Investigation on the above-mentioned real estates and movable property shall become the legal grounds for the court to divide common property. Therefore, the persons involved should afford the concerning evidence about the amount of property and its location to the court, otherwise, the court may not conduct it. In case you have afford sufficient evidence about the certain property, but the court of first instance doesn’t list it into the common property inventory, you can regard it as reasons for appeal.
(5) Whether the court has a correct understanding about basic information about issue.
The child-care right is also another dispute in divorce cases. Generally speaking, it is quite common that both parties request to have the child-care right. To some extent, the child-care right is closely related with division of premises. Therefore, the court investigation concerning basic information about issue is very important to both parties. The contents of the court investigation cover the date of birth, name, growing-up environment, the current living situations, parents’ attitudes toward issue, the status quo of issue and so on, all of which will have some influence on the court’s judgment upon the child-care right. A party has the right to appeal in case the court’s judgment lacks legal grounds or doesn’t conform to the fact.
Part Ⅲ What is the influence of an appeal in the divorce case?
Generally speaking, in divorce cases, the court for second instance may not change the original sentence owing to some small defects rather than fake truth or wrong application of the concerning laws.
To sum up, the agent is not an indispensable in divorce cases. However, it is especially beneficial for the persons involved to learn more about the concerning procedures and to absorb other’s relevant experience in order to safeguard one’s own legal rights and interests, if you are not quite well-off. |
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