What is the difference between litigation divorce and agreement divorce?
1. The difference of procedure. The parties who have voluntary divorce shall, with relevant documents, go to the civil marriage registration office to handle the agreement. They may also go to the People's Court to handle the agreement together. They may also reach an agreement in divorce proceedings when mediated by the court. The difference is that divorce certificates are issued by civil affairs departments, while mediation letters are issued by courts. The mediation letters of courts are equivalent to "divorce certificates" without having to go to civil affairs departments to obtain divorce certificates. Divorce can only be handled by civil affairs departments and people's courts, while other units can only reconcile and not transfer.
2. Differences in nature. The content of divorce agreement includes three main contents: voluntary divorce, child support, property and debt disposal. Among them, voluntary divorce refers to the voluntary dissolution of the marriage relationship between the two parties; child support involves the exercise of the right of maintenance by one party and the payment of maintenance fees by the other party, including the cost of living, education and medical expenses of the children. It also includes the right of visitation and protection of one party who does not directly raise a child, and the disposal of property and debt mainly includes how to divide the common property during the period of marital relationship and how to pay off the common debt. Divorce agreement is a kind of mixed contract. However, the divorce agreement must be in written form, not in oral or written form of letters, data messages and e-mails, etc. Our country does not recognize oral divorce agreement. This is different from civil and commercial contracts in written form, oral form and other forms; the divorce part of the divorce agreement is irrevocable and revocable, which is different from civil and commercial contracts, which can be changed and revoked.
3. The difference of effectiveness. Registration of divorce agreements and litigation divorce agreements have the same legal effect; personal relations can not be directly enforced; the debt of registration of divorce agreements and litigation divorce agreements can not confront the first creditor. Article 25 of Marriage Law Interpretation 2, namely, "the parties'divorce agreement or the people's court's judgment, ruling, mediation statement has dealt with the division of marital property issue of creditors. It still has the right to claim the joint debts of husband and wife to both men and women. The registration divorce agreement shall take effect immediately from the date of signature by both parties, and the divorce part shall take effect upon the issuance of the divorce certificate by the civil affairs department; and the divorce, children and property relationship shall take effect immediately after the signature of the litigation divorce agreement by both parties; the property relationship of the registration divorce Agreement shall not be directly applied for by one party without fulfilling its obligations in accordance with the content of the registration divorce agreement. The people's court can apply to the people's court for compulsory execution only after it has been confirmed by the people's court. However, once the time limit for execution of the property relationship of the divorce agreement in litigation has passed, the parties concerned can directly apply to the people's court for compulsory execution. Neither the registered divorce agreement nor the litigation divorce agreement can be appealed or appealed.
2. How to initiate divorce proceedings if the agreement is not reached
1. Where an agreement fails and divorce proceedings cannot be instituted:
(1) The circumstances in which a man may not file for divorce:
(1) The woman is pregnant;
(2) Within one year after delivery;
(3) Within six months after termination of pregnancy.
In the case of divorce filed by the woman or if the people's court deems it necessary to accept the divorce request of the man, this shall not be limited. "It's really necessary" situations, such as when the man thinks that the child is not his own child. Specific "if it is really necessary to accept a man's divorce request", can refer to the trial practice, the specific trial depends on the specific circumstances of the parties.
(2) The people's court shall not accept divorce proposed by either party under the following circumstances:
(1) Mediation is reconciled, without new circumstances or reasons, and prosecution is instituted within six months;
(2) The plaintiff withdraws the lawsuit automatically without new circumstances or reasons, and prosecutes again within six months;
(3) divorce cases dealt with according to withdrawal of lawsuits, without new circumstances or reasons, are prosecuted again within six months.
(3) Active servicemen, as ordinary citizens, are subject to the same restrictions on their divorce. However, due to their special nature, another restriction is imposed by law, that is, the spouse of active servicemen requests divorce with the consent of the servicemen, except for the serious fault of the servicemen.
2. To initiate divorce proceedings, the court's decision to grant divorce is based on the breakdown of husband and wife's feelings. According to the relevant provisions of Article 32 of the Marriage Law, divorce shall be granted if mediation is invalid under one of the following circumstances:
(1) bigamy or cohabitation of a spouse with another person;
(2) committing domestic violence or abusing or abandoning family members;
(3) Having bad habits such as gambling and drug addiction that are persistently taught;
(4) Those who have been separated for two years due to emotional discord;
(5) Other situations that lead to the breakdown of husband and wife's feelings.
If one party is declared missing and the other party brings a divorce lawsuit, divorce shall be granted.
Whether it is agreement divorce or litigation divorce, these are in fact the legal divorce mode specified in the Marriage Law. It should be noted that there is no automatic divorce in China. In order to dissolve the marital relationship, the couple must go through the formalities according to the regulations. Otherwise, even if both parties live separately in the future, they are still in the marital relationship.