1. Divorce unilaterally but husband does not agree
"Behind every accomplished man is an equally accomplished woman," is an age-old adage often associated with successful marriages. However, when such a relationship becomes strained, many couples fail to seek alternatives. Disagreements and the inability to find common ground can lead to divorce, prompting one spouse to seek a unilateral divorce as a means to expedite the marriage's dissolution. Nevertheless, it's important to note that unilateral divorce isn't always granted by the court.
2. What Does Unilateral Divorce Entail?
As defined in Article 3, Clause 14 of the 2014 Family and Marriage Law, divorce involves the termination of the marital union through a legally binding court judgment or decision. Divorce can occur with the mutual consent or disagreement of both spouses. Unilateral divorce occurs when only one spouse initiates and voluntarily files for divorce without the other party's consent. According to the provisions of family and marriage law, when a unilateral divorce petition is received, the court typically attempts mediation. If mediation proves unsuccessful, the court proceeds with divorce proceedings in accordance with the law.
3. Legal Provisions Governing Unilateral Divorce
Conditions for Initiating Unilateral Divorce
Article 56 of the 2014 Family and Marriage Law specifies the conditions under which a husband or wife is legally permitted to file for unilateral divorce:
1. When a spouse commits domestic violence, causing significant harm to the other's life, health, or well-being.
2. When a spouse significantly violates the rights and obligations of the other, rendering their shared life untenable and their marital objectives unattainable. This may encompass acts of infidelity, emotional abuse, lack of affection, or similar behavior.
3. When a shared life becomes unfeasible, and marital goals become unattainable due to issues such as inequality, lack of affection, or mutual disrespect.
4. When a spouse has been declared missing by a court.
4. Unilateral Divorce Formalities
The formalities for unilateral divorce involve several steps:
Step 1: Initiate the divorce process by filing a divorce petition with the appropriate people's court.
Step 2: Receive the results of the petition's processing.
Step 3: Pay the required court fees for the trial process to the competent civil judgment enforcement agency and submit the receipt to the court.
Step 4: The court issues an order for testimony and mediation, proceeding in accordance with the Civil Procedure Law.
Step 5: If the court rejects the divorce petition, the petitioner has the right to appeal to the higher court for an appellate trial as permitted by law.
5. Circumstances Where Unilateral Divorce is Not Permitted
As per Clause 3, Article 51, and Article 56 of the 2014 Family and Marriage Law, unilateral divorce is not allowed under the following circumstances:
1. When there is no evidence to suggest that a spouse has committed domestic violence or seriously infringed upon the rights and obligations of the other.
2. When there is evidence of a spouse committing domestic violence or seriously infringing upon the rights and obligations of the other, but these actions do not significantly deteriorate the marriage, rendering their shared life untenable or their marital objectives unattainable.
3. A husband cannot request a divorce when his wife is pregnant, has recently given birth, or is nursing an infant under 12 months of age.
4. Divorce is not granted when a spouse is missing but has not been declared as such by a court.
5. When a spouse is suffering from a mental illness or another condition that impairs their behavior and judgment, the court will not grant a divorce under certain conditions. These conditions include when the person requesting a divorce is not the sick person's family member, or when there is insufficient evidence to prove domestic violence that seriously harms the other spouse's life, health, or well-being.
6. Qualifications for Child Custody Following Unilateral Divorce
Article 81 of the 2014 Family and Marriage Law and Resolution 02/2000/NQ-HDTP, concerning the right to care for, raise, and educate children after divorce, stipulate:
Husbands and wives should reach an agreement regarding the direct caregiver for their children, along with their respective obligations and rights post-divorce. The court acknowledges this agreement, and both parties are obligated to adhere to it.
In cases where an agreement cannot be reached, the court will appoint one of the parents as the direct caregiver, taking into consideration the child's best interests in all aspects.
The People's Court relies on several principles to determine custody:
Children under 36 months of age are typically placed under the direct care of the mother, unless the mother is unable to provide adequate care, or alternative arrangements are agreed upon in the child's best interest.
For children aged 7 and older, the court must consult with the child to ascertain their preference regarding their custodial parent before making a decision.
The court also considers the economic conditions of both parents, the child's living environment, the time each parent has spent with the child, and who can provide the most conducive developmental environment for the child.
After thorough assessment of these factors, the court determines which parent is eligible for child custody.
Q&A
Question 1: What does it mean to file for divorce unilaterally when the husband does not agree?
Answer 1: Filing for divorce unilaterally means that one spouse initiates the divorce proceedings without the consent or agreement of the other spouse. When the husband does not agree to the divorce, it becomes a unilateral divorce, and the initiating spouse seeks legal action to dissolve the marriage.
Question 2: What steps can be taken by the spouse seeking a unilateral divorce when the husband disagrees?
Answer 2: When the husband does not agree to the divorce, the spouse seeking the unilateral divorce can take the following steps:
1. Consult with an attorney to understand legal options and requirements.
2. File a divorce petition with the court, outlining the reasons for seeking divorce.
3. Serve the divorce papers to the husband as per legal procedures.
4. Attend court hearings and provide evidence supporting the divorce grounds.
Question 3: Are there specific legal grounds required for a unilateral divorce when the husband disagrees?
Answer 3: The specific legal grounds for a unilateral divorce when the husband disagrees can vary by jurisdiction. Common grounds may include irreconcilable differences, cruelty, abandonment, or other valid reasons for divorce. Consulting with an attorney is essential to understand the applicable grounds in a particular jurisdiction.
Question 4: What happens if the husband continues to disagree throughout the divorce process?
Answer 4: If the husband continues to disagree throughout the divorce process, the case may become contested. This means that the court will need to make decisions regarding issues like property division, child custody, and support. The divorce proceedings may take longer, and both parties may need to present their arguments and evidence in court before a final judgment is issued.
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