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婚姻法:离婚诉讼中准于离婚的条件解析

作者:admin  日期:2018-10-26 11:00  人气:
婚姻法:离婚诉讼中准于离婚的条件解析
 
Marriage Law: conditions for divorce in divorce proceedings
 
 
 
《婚姻法》第32条规定,如感情确已破裂,调解无效,应准予离婚。因此,法院判决离婚的条件就是:夫妻感情已破裂。 人民法院审理离婚案件,准予不准离婚应以夫妻感情是否确已破裂作为区分的界限。判断夫妻感情是否确已破裂,应当从婚姻基础、婚后感情、离婚原因、夫妻关系的现状和有无和好的可能等方面综合分析。
 
The thirty-second provision of the marriage law stipulates that divorce should be granted if mediation fails. Therefore, the court decided that the conditions for divorce were: the couple's feelings had been broken. When a people's court hears a divorce case, the boundary between the approval and disapproval of divorce shall be whether the feelings of the husband and wife have really broken down. To judge whether the relationship between husband and wife has really broken down, we should make a comprehensive analysis from the aspects of marital basis, post-marital feelings, reasons for divorce, the status quo of the relationship between husband and wife and the possibility of harmony.
 
 
 
所谓婚姻基础,即双方在结婚时的感情状况, 比如双方是以爱情为基础的婚姻,还是以金钱、地位、容貌为基础的结合;是自主自愿的自由婚姻,还是包办婚姻、买卖婚姻;是经过慎重了解的,还是草率结婚的。婚姻基础是否牢固,必然会对婚后生活、夫妻感情和离婚原因产生直接或间接的影响。
 
The so-called basis of marriage, that is, the emotional status of the two sides in marriage, such as the marriage based on love, or the combination based on money, status and appearance; is it a free marriage of free will, or arranged marriage, sale marriage; is it carefully understood, or hastily married. Whether the foundation of marriage is firm or not will inevitably have a direct or indirect impact on the life after marriage, the feelings of husband and wife and the causes of divorce.
 
 
 
所谓婚后感情, 即双方在婚后共同生活期间的感情状况,它是评价婚姻关系好与坏的基本尺度。当事人的道德品质、性格习惯、工作状况、经济合作、子女抚育、家务分担等等,都会不同程度地影响着夫妻感情。夫妻感情处于动态的变化之中,需要对其作历史的、全面的分析,既要考察过去,又要着眼于现在。
 
The so-called post-marital feelings, that is, the emotional status of the two sides during their joint life after marriage, are the basic criteria for evaluating the quality of marriage. The moral character, personality habits, work conditions, economic cooperation, child care, housework sharing and so on of the parties will affect the feelings of the couple to varying degrees. The relationship between husband and wife is in a dynamic state of change. We need to make a historical and comprehensive analysis of it. We should not only examine the past, but also focus on the present.
 
 
 
所谓离婚原因,即导致离婚的直接诱因,包括使夫妻感情发生变化的因素或事件,比如一方有赌博、吸毒等恶习或实施家庭暴力等。正确考量离婚原因与夫妻感情破裂的内在联系,对于判断夫妻感情是否破裂,是否具有和好可能有重要意义。
 
The so-called reasons for divorce, that is, the direct incentives for divorce, including factors or events that change the feelings of the couple, such as gambling, drug abuse and other vices or the implementation of domestic violence. Correct consideration of the internal relationship between the causes of divorce and the breakdown of the couple's feelings may be of great significance in judging whether the couple's feelings are broken and whether they are reconciled.
 
 
 
所谓夫妻关系的现状和有无和好可能,即双方发生离婚纠纷前后夫妻共同生活的实际状况,以及从当事人主观态度和客观状况看,是否有重归于好的可能性。在离婚纠纷发生的前后,夫妻关系会有不同程度的冲突和恶化,但感情是会因一定的主观和客观条件而发生转化的,在濒于破裂时恢复和好也不是没有可能的。 因而需要对夫妻关系的现状有所分析, 对其发展前景有所预见。
 
The so-called status quo of the relationship between husband and wife and the possibility of reconciliation, that is, the actual situation of the couple living together before and after divorce disputes, and from the subjective attitude and objective situation of the parties, whether there is the possibility of a return to good. Before and after divorce disputes, the relationship between husband and wife will have different degrees of conflict and deterioration, but the feelings will be due to certain subjective and objective conditions and transformation, in the brink of rupture, recovery is not impossible. Therefore, it is necessary to analyze the status quo of the relationship between husband and wife and foresee its development prospects.
 
 
 
只有通过对上述几个相互联系的方面进行综合分析,才能作出实事求是的正确判断,为调解提供契机,为判决提供依据。根据《婚姻法》第32条规定,夫妻感情确已破裂的情形主要有:
 
Only through the comprehensive analysis of the above-mentioned aspects, can we make a correct judgment of seeking truth from facts, provide an opportunity for mediation, and provide a basis for judgment. According to the thirty-second provision of the marriage law, the couple's feelings have broken up.
 
 
 
一、重婚或有配偶者与他人同居
 
1. Bigamy or spouse having cohabitation with others.
 
 
 
1、重婚行为的认定标准
 
1, the standard of recognition of bigamy.
 
 
 
《刑法》第258条规定:“有配偶而重婚的,或者明知他人有配偶而与之结婚的,处二年以下有期徒刑或者拘役。”
 
Article 258 of the Criminal Law stipulates that: "If a person has a spouse and bigamy, or knowingly marries another person who has a spouse, he shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention."
 
 
 
构成重婚有两类人,第一类是有配偶的人,又与他人登记结婚,或者与他人以夫妻名义共同生活的;第二类是明知他人已有配偶的人,又与之登记结婚,或者以夫妻名义共同生活的。第二类人构成重婚要求是“明知他人已有配偶”,事先知道,或者事后知道而继续保持婚姻关系,则属于“明知”。反之,不知道、受欺骗,则不构成重婚。
 
There are two types of people who constitute bigamy. The first is a person who has a spouse, who is registered to marry another person, or lives together in the name of another person's spouse. The second is a person who knows that another person has a spouse and is registered to marry with him or lives together in the name of the husband and wife. The second kind of person constitutes bigamy requiring "knowing that another person has a spouse" and "knowing beforehand, or knowing afterwards and continuing to maintain the marriage relationship" belongs to "knowing". Conversely, ignorance and deception do not constitute bigamy.
 
 
 
认定重婚,关键要看是否构成另一夫妻关系。依据有关司法解释,重婚有两种情况:一是法律上重婚,指有配偶的人与他人登记结婚;二是事实上重婚,即有配偶的人与他人以夫妻名义共同生活。有以下情形之一的,应视为以夫妻名义共同生活:
 
The key to bigamy is whether it constitutes another relationship between husband and wife. According to the relevant judicial interpretation, there are two kinds of bigamy: first, legal bigamy, refers to a person with a spouse and other people registered to marry; second, in fact bigamy, that is, a person with a spouse and other people living together in the name of husband and wife. One of the following circumstances should be regarded as living together in the name of husband and wife.
 
 
 
(1)有配偶的人与他人举行结婚仪式的;
 
(1) persons who have spouses hold marriage ceremonies with others;
 
 
 
(2)有配偶的人虽未与他人举行结婚仪式,但以夫妻相称或者对外以夫妻自居的。以夫妻相称,除当事人间承认、日常生活间的称呼外,当事人同居生活,女方生病时男方以丈夫的名义签名、陪侍,女方 生育孩子男方以父亲的名义在医院签字,当事人以父母的名义为子女庆祝满月等,也可以作为认定以夫妻相称的辅助证据。认定重婚,通常还需要取得周围群众、当 事人亲朋戚友的证言,以证明周围群众认为当事人是夫妻。
 
(2) A person with a spouse who, although not having a wedding ceremony with another person, is compatible with the husband and wife or who lives outside the home as a husband and wife. In the name of husband and wife, in addition to the recognition between the parties and the appellation of everyday life, the living together of the parties concerned, the signature and accompanying of the man in the name of the husband when the woman is sick, the signature of the man who gives birth to the child in the name of the father in the hospital, the celebration of the full moon in the name of the parents by the parties concerned, etc., may also be regarded as the identification of the husband and wife. Proportionate auxiliary evidence. To determine bigamy, it is usually necessary to obtain testimony from the surrounding people, relatives and friends of the parties to prove that the surrounding people think the parties are husband and wife.
 
 
 
2、有配偶者与他人同居的表现形式及认定标准
 
2. The form and standard of cohabitation of spouses and others.
 
 
 
没有构成重婚罪的“包二奶”、姘居是婚姻法所指有配偶者与他人同居的两种主要形式。“包二奶”、姘居违反了婚姻法关于夫妻互相忠实的规定,侵害了合法配偶的权利。“包二奶”和姘居行为的性质与重婚相似,只是程度不同而已。
 
There are two main forms of cohabitation between the spouse and other people in the marriage law, which are "Bao Erwei" and "concubine" without constituting the crime of bigamy. "Bao Er-wei" and "loving concubines" violate the provisions of the marriage law on mutual loyalty between husband and wife, and infringe the rights of legitimate spouses. The nature of "mistress" and "cohabitation" is similar to bigamy, but only to varying degrees.
 
 
 
(1)姘居,是指有配偶的一方与婚外异性公开同居,共同生活,双方主观上没有以夫妻名义共同生活的目的,未构成重婚的行为。姘居当事人不以金钱、物质与性为交易目的,有的当事人还有一定的感情基础。
 
(1) Living in peace means that one of the spouses openly cohabits with the opposite sex outside marriage and lives together. Subjectively, neither spouse has the purpose of living together in the name of the husband and wife and does not constitute bigamy. The parties who live in concubine do not take money, material and sex as trading purposes, and some have certain emotional basis.
 
 
 
(2)包二奶,通常表现为有配偶的男性以金钱、物质付给女方,双方保持较为稳定的同居关系或较为固定的性关系,女方一般只与对方保持这种关系。严重的“包二奶”行为可能构成重婚,受到刑法的惩处,但大多数的“包二奶”行为没有达到重婚的程度。
 
(2) Bao Erwei, usually manifested as a man with a spouse to pay money, material to the woman, both sides maintain a more stable cohabitation or a more fixed sexual relationship, the woman generally only maintains this relationship with the other side. Serious "wrapping second wives" behavior may constitute bigamy and be punished by the criminal law, but most of the "wrapping second wives" behavior does not reach the degree of bigamy.

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