When may a divorce not be filed?
Three situations restrict the filing of a divorce. A husband may not file while his wife is pregnant, within one year of the birth or within six months of a termination of pregnancy, unless she files or the court considers his request necessary to accept. The spouse of a soldier on active service needs the soldier's consent, unless the soldier is seriously at fault. And where a court has refused a divorce or the parties have been reconciled, the plaintiff may not sue again within six months without new circumstances or grounds.
1. A husband may not file for divorce while his wife is pregnant, within one year of the birth, or within six months of a termination of pregnancy.
Having regard to a woman's physical and mental condition during pregnancy, after childbirth and after a termination of pregnancy, and to the interests of the woman and of the child, the law provides that in those periods the husband may not file for divorce.
Spouses owe each other a duty of support. During pregnancy, the year after childbirth and the six months after a termination, the husband must perform that duty towards his wife.
Women differ greatly from men. Physically, pregnancy, childbirth and termination of pregnancy are a particular time for a woman: the body carries a heavy burden, she is weak and moves with difficulty, and she needs her husband's care and help. Mentally, her state fluctuates widely and her resilience is low, and she has great need of concern and comfort. The duty of support that spouses owe each other requires the husband to take on the care of his wife during that time.
2. Where the spouse of a soldier on active service seeks a divorce, the soldier's consent is required, unless the soldier is seriously at fault.
The nature of a soldier's life is that he cannot often live with his spouse. China has always given military marriages special protection, in order to safeguard the immediate interests of officers and men and to keep the forces stable: it removes a worry from the soldier's mind, it is necessary to the fighting capacity of the forces, and it is an important part of the work of supporting the army and giving preferential treatment to soldiers' families.
In view of the character of military service and of the particular tasks the forces undertake, the law makes special provision for military marriages. Freedom to marry and freedom to divorce are a basic principle of the marriage law, and the protection of soldiers' rights is also a basic requirement of law, so the Book on Marriage and Family of the Civil Code strikes a balance between the two and gives military marriages the special protection described above.
3. Where a divorce has been refused by judgment, or the parties have been reconciled through mediation, and where the plaintiff has withdrawn the action or it has been treated as withdrawn, the court will not accept a fresh action by the plaintiff within six months in the absence of new circumstances or grounds.
Where a divorce is sought by litigation and at the first attempt the court takes the view that the relationship has not broken down, it will often refuse the divorce or urge the plaintiff to withdraw. Thereafter the plaintiff may not sue again within six months in the absence of new circumstances or grounds; this is the procedural rule of the Civil Procedure Law. During that period, however, the parties may divorce by agreement at the civil affairs bureau.
The text of the provisions
Civil Code
Article 1081 Where the spouse of a soldier on active service seeks a divorce, the soldier's consent shall be obtained, unless the soldier is seriously at fault.
Article 1082 A husband may not file for divorce while his wife is pregnant, within one year of the birth or within six months of a termination of pregnancy; the exception is where the wife files for divorce or the people's court considers it necessary to accept the husband's request.
Law on the Protection of the Rights and Interests of Women
Article 45 A husband may not file for divorce while his wife is pregnant, within one year of the birth or within six months of a termination of pregnancy. The exception is where the wife files for divorce or the people's court considers it necessary to accept the husband's request.
Civil Procedure Law
Article 127 A people's court shall deal with the following actions according to the circumstances:
...
(7) where a divorce has been refused by judgment or the parties reconciled through mediation, and where a judgment or mediation has maintained an adoptive relationship, a fresh action brought by the plaintiff within six months in the absence of new circumstances or grounds shall not be accepted.