Chapter X
DIVORCE
Article 85.- The right to request the Court to settle it a divorce
1. Either spouse or both have the right to request the Court to settle their divorce.
2. Where the wife is pregnant or is nursing a under-12-month infant, the husband is not entitled to request a divorce.
Article 86.- Encouragement of grassroots-level reconciliation
The State and society encourage the grassroots-level reconciliation when husband and/or wife apply for a divorce. The reconciliation shall comply with the legislation on grassroots-level reconciliation.
Article 87.- Processing and handling of divorce applications
The Court processes and handles divorce applications according to the provisions of the civil procedure legislation.
Where a couple who have not registered their marriage file an application for divorce, the Court shall process and handle the case and declare non-recognition of their spousal relation according to the provisions in Clause 1, Article 11 of this Law; any children- or property-related requests shall be dealt with according to Clauses 2 and 3, Article 17 of this Law.
Article 88.- Reconciliation at the Court
After processing and handling a divorce application, the Court shall proceed with the reconciliation according to the provisions of the civil procedure legislation.
Article 89.- Bases for permitting a divorce
1. The Court considers the divorce application, if deeming that the situation is serious, the couple can no longer live together and the marriage purposes cannot be achieved, the Court shall decide to permit the divorce.
2. Where the spouse of the person who has been declared missing by the Court applies for a divorce, the Court shall permit such divorce.
Article 90.- Divorce by consent
Where both the husband and wife request a divorce and the reconciliation at the Court fails, if deeming that the two parties are really willing to divorce and have agreed upon the property division, the nursing, rearing, care for and education of their children, the Court shall recognize the divorce by consent and the agreement on property and children on the basis of ensuring the legitimate interests of the wife and children; if the husband and wife fail to reach an agreement or has reached an agreement which, however, fails to ensure the legitimate interests of the wife and children, the Court shall make decisions thereon.
Article 91.- Divorce at the request of one party
When either spouse requests a divorce and the reconciliation at the Court fails, the Court shall consider and decide the divorce.
Article 92.- The nursing, care for, education and raising of children after the divorce
1. After their divorce, the husband and wife are still obliged to look after, care for, educate and rear their minor children or adult children who are disabled, have lost their civil act capacity, have no working capacity and no property to support themselves.
The person who does not directly rear children is obliged to provide support for the children.
2. Husband and wife agree upon who shall directly rear their children, the rights and obligations of each party toward their children after divorce; if they fail to reach an agreement thereon, the Court shall decide to assign one party to directly rear the children, on the basis of the children’s interests in every aspect, if the children are aged full nine years or older, their aspirations must be taken into consideration.
In principle, all children under three years of age shall be assigned to their mothers for direct rearing, unless otherwise agreed upon by the two parties.
Article 93.- Change of the person directly raising children after divorce
In the interests of children, at the request of one or both parties, the Court may decide to change the person directly raising the children.
The change of the person directly raising the children after divorce shall be effected in cases where such person fails to ensure the children’s interests in all aspects, with the aspirations of children aged full nine years or older taken into consideration.
Article 94.- The right to visit children after divorce
After divorce, the person who does not directly rear children has the right to visit the children; nobody is allowed to impede such person to exercise this right.
Where the person who does not directly raise the children abuses his/her visits to impede or badly affect the nursing, care for, education and rearing of the children, the person directly raising the children may request the Court to restrict such person’s right to visit children.
Article 95.- Principles of division of property upon divorce
1. Upon a divorce the division of property shall be agreed upon by the concerned parties; if they fail to reach an agreement thereon, they may request the Court to settle it. Personal property of one party shall belong to such party.
2. The division of common property is effected on the following principles:
a/ The common property of husband and wife shall, in principle, be halved, with due consideration given to each party’s situation, the property status, each party’s contributions to the creation, preservation and development of this property. The housework done in the family by the husband and/or wife is regarded as income-generating labor;
b/ The legitimate rights and interests of wife, minor children or adult children who are disabled, have lost their civil act capacity, have no working capacity and no property to support themselves, are protected;
c/ The legitimate interests of each party in their production, business and career activities are protected to provide them with conditions to continue their income-generating labor.
d/ The common property of husband and wife is divided in kind or according to its value; the party who receives his/her property portion in kind which has a value bigger than the portion he/she deserves, he/she must pay the value difference to the other party.
3. The settlement of joint property obligations of the husband and wife is agreed upon by themselves; if they fail to reach an agreement thereon, they may request the Court to settle it.
Article 96.- Division of property in cases where a couple divorce while living with the whole family.
1. Where a couple divorce while living with the whole family, if their property cannot be determined separately from the whole family’s common property, the wife or husband shall be divided part of the family’s common property on the basis of the husband’s and wife’s contributions to the creation, preservation and development of the common property as well as the life of the whole family. The divorced couple and their family shall agree upon the portion divided from the whole family’s common property; if they cannot reach agreement thereon, they may request the Court to settle it.
2. Where the couple live with the whole family and their property can be determined as a portion of the whole family’s common property, such property portion of the couple, when they divorce, shall be extracted from the common property for division.
Article 97.- Division of the husband’s and/or wife’s land use right when they divorce
1. The land use right solely owned by one party shall still belong to such party after divorce.
2. The divorced couple’s common land use right is divided as follows:
a/ For agricultural land under annual crops or aquaculture, if both parties have the need and conditions to directly use the land, the land use right shall be divided according to their agreement; if they fail to reach an agreement thereon, they may request the Court to settle it according to the provisions in Article 95 of this Law.
Where only one party has the need and conditions to directly use the land, such party may continue to use the land but must pay to the other party the portion of the land use right value the latter is entitled to;
b/ Where husband and wife share the right to use agricultural land under annual crops or aquaculture with the whole household, when they divorce the couple’s share of such land use right shall be separated for division according to the provisions at Point a of this Clause;
c/ For agricultural land under perennial trees, forestry land for forestation or residential land, the land use right is divided according to the provisions in Article 95 of this Law;
d/ The division of the right to use other categories of land shall comply with provisions of the land and civil legislation.
3. Where husband and wife live with the whole family and share no land use right with the whole household, when they divorce the interests of the party who does not have the land use right and does not continue to live with the family shall be settled according to the provisions in Article 96 of this Law.
Article 98.- Division of a residential house jointly owned by husband and wife
Where a residential house jointly owned by husband and wife may be divided for use by each party, when they divorce, the house shall be divided under Article 95 of this Law; if the house is indivisible, the person who is allowed to continue using the house must pay to the other party the value he/she is entitled to.
Article 99.- Settlement of the interests of divorced husband or wife where the residential house is under the private ownership of one party.
Where the residential house being under private ownership of one party has been put to common use, when the couple divorce, such residential house still belongs to its owner who, however, must pay to the other party part of the house’s value, depending on the latter’s contributions to maintaining, upgrading, renovating and/or repairing the house.
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