Chapter IV Divorce

Article 1076 Where the husband and the wife both agree to divorce, they shall enter into a divorce agreement in writing and file divorce registration in person with the marriage registration authority.

The divorce agreement shall include expression of intent of both parties to voluntarily divorce and their mutual agreement on such matters as child support, property division, and allocation of debts.

Article 1077 Where either party is unwilling to divorce, he may withdraw the divorce registration application within thirty days after such an application is received by the marriage registration authority.

Within thirty days after expiration of the period provided in the preceding paragraph, both parties shall personally visit the marriage registration authority to apply for issuance of a divorce certificate, and failing to do so will cause the divorce registration application to be deemed as withdrawn.

Article 1078 Upon ascertaining that the divorce is voluntarily intended and that the two parties have reached agreement on such matters as child support, property division, and allocation of debts, the marriage registration authority shall register the divorce and issue a divorce certificate.

Article 1079 Where the husband or the wife unilaterally petitions for divorce, a relevant organization may offer mediation, or such person may file for divorce directly with the people’s court.

The people’s court shall, during the divorce trial, offer mediation, and grant divorce if mutual affection no longer exists between the two parties and mediation fails.

A divorce shall be granted when mediation fails under any of the following circumstances:

(1) one spouse commits bigamy or cohabitates with another person; or

(2) one spouse commits domestic violence or maltreats or deserts a family member;

(3) one spouse habitually commits acts such as gambling, drug abuse, or likewise, and refuses to correct such behavior despite of repeated warnings;

(4) the spouses have been separated for no less than two full years due to marital discord; or

(5) other circumstances exist under which mutual affection no longer exists between the spouses.

Where one spouse is declared to be missing and the other party files for divorce, such divorce shall be granted.

Where, after a judgment has been made against divorce and the spouses have been separated for one more year, such divorce shall be granted where one of the spouses files again for divorce with the people’s court.

Article 1080 A marital relationship is dissolved upon completion of registration of divorce or when a judgment of divorce or mediation paper of divorce comes into effect.

Article 1081 Where the spouse of a military personnel on active service requests for divorce, the consent of the spouse who is a military personnel on active service shall be obtained unless he is at serious fault.

Article 1082 A husband may not file for divorce during his wife’s pregnancy, within one year after his wife delivers, or within six months after termination of her pregnancy, unless the wife applies for divorce, or the people’s court deems it necessary to hear the divorce request made by the husband.

Article 1083 Where, after divorce, both the man and the woman intend to resume their marital relationship, they shall file for re-registration of marriage at a marriage registration authority.

Article 1084 The parents-children relationship shall not be dissolved upon divorce of the parents. Whether a child is under the physical custody of the father or the mother, he remains to be the child of both parents.

After divorce, parents continue to have the rights and duties to raise, educate, and protect their children.

As a matter of principle, a mother shall, upon divorce, have physical custody of her child under the age of two. Where parents fail to reach an agreement on the physical custody of their child over the age of two, the people’s court shall adjudicate it in compliance with the principle of acting in the best interests of the minor child and in light of the actual situations of both parents.

Article 1085 Upon divorce, where a parent has the physical custody of his child, the other parent shall pay for the child support in part or in whole. The amount and duration of such payment shall be determined by both parents through agreement, or, where no such an agreement is reached, adjudicated by the people’s court through making a judgment.

The agreement or judgment provided in the preceding paragraph shall not preclude the child, when necessary, from making reasonable demand of payment on either parent in excess of the amount specified in the agreement or judgment.

Article 1086 After divorce, a parent who does not have the physical custody of his child has the right to visit the child, and the other parent is obligated to facilitate the visit.

The manner and schedule for exercising the right to visitation shall be determined by both parents through agreement, or, where no such an agreement is reached, adjudicated by the people’s court.

If a parent's visit to a child is detrimental to the child's physical or mental health, the visit shall be suspended by the people’s court in accordance with law, and the visit shall be resumed when the cause for such suspension no longer exists.

Article 1087 Upon divorce, the community property of the spouses shall be partitioned by them through agreement, or, where no such an agreement is reached, adjudicated by the people's court in light of the actual state of the property and in compliance with the principle of favoring the rights and interests of their children, the wife, and the no-fault party.The rights and interests of the husband or wife arising from the contractual management of land based on the household shall be protected in accordance with law.

Article 1088 Where one spouse is burdened with additional duties for raising children, looking after the elderly, or assisting the other spouse in his work, the said spouse has the right to request for compensation upon divorce against the other party, and the other party shall make due compensation. The specific arrangements for making such compensation shall be determined by the spouses through agreement, or adjudicated by the people’s court where no such an agreement is reached

Article 1089 Upon divorce, the husband and wife shall jointly pay off their community debts. Where the community property is insufficient to pay off the debts, or the property is owned by each spouse separately, such debts shall be paid off by the spouses through agreement, or adjudicated by the people’s court where no such an agreement is reached.

Article 1090 Where one party is in financial hardship upon divorce, the other party, if financially capable, shall render appropriate assistance. The specific arrangements shall be determined by the spouses through agreement, or adjudicated by the people’s court where no such an agreement is reached.

Article 1091 A no-fault spouse has the right to claim compensation where divorce is caused by one of the following acts done by the other spouse:

(1) has committed bigamy;

(2) has cohabitated with another person;

(3) has committed domestic violence;

(4) has maltreated or deserted a family member; or

(5) has acted with other serious faults.

Article 1092 Where one spouse conceals, transfers, sells off, destructed or damages, or squanders the community property, or creates a false community debt in an attempt to unlawfully seize the property of the other spouse, the said spouse may receive less or no property upon partition of the community property in the case of divorce. Where one of the aforementioned acts committed by one spouse is found after divorce, the other party may file a lawsuit with the people's court for re-partition of the community property.