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What? I was divorced ten years ago?

(2014-10-11 13:35:35)
标签:

being

divorced

Case Brief:(from http://bjwb.bjd.com.cn/html/2013-02/21/content_50017.htm)

Ms Ma and Mr. Liu are classmates at university. In 2003, the two got married and no child was born after marriage. In 2004, Mr Liu flew to Canada for study while Ms Ma remained in China for work. Mr Liu, one month after his arrival in Canada, sent an email to Ms Ma about the school he was study in, the address and contact number. Afterwards, not a word is from Mr Liu any longer. In 2004, Ms Ma flew to Canada to visit her husband only to find the school Mr Liu mentioned in Email had no information about Mr Liu, nor is there any trace of Mr Liu at the place Mr Liu told in his email. The contact number is forever an empty number. Mr Liu just disappeared. Ms Ma has no choice but to come back to China, waiting for the news from her husband.

The waiting lasts ten years with no word from Mr Liu, her husband. To stop the endless waiting and to liberate herself from this dead in fact marriage, she goes to court for a divorce. When the court serves the documents to Mr Liu, it turns out that Ms Ma has no idea about where he is from or his family including the contact information of his family. She has nothing useful about the Mr Liu only that his registered residential place is the same place where she has been living in. Given the fact that no whereabouts can be found of Mr Liu, Ms Ma has to apply for serving the legal documents by public notice.

When the term for public notice expires, there is still no trace of Mr Liu and the court has to go on with the trial without the presence of Ms Ma. However, before the trial, the presiding judge, with prudence, exhausts all the resources to find what really happens to Mr Liu and discovers a dramatic result, the marriage between Mr Liu and Ms Ma is dissolved already through a valid court judgment as early as March 16th, 2008. In 2008, Mr Liu initiated a divorce lawsuit at court, claiming he went to Canada for study in 2004 and in 2005, Ms Ma got her visa to Canada as a study accompany. But when she arrived in Canada, Mr Liu lost contact with Ms Ma without meeting Ms Ma. The two are separated from each other for more than three years with zero contact. The feelings between the two are indeed broken given the long time separation. Therefore, a divorce judgment shall be granted.

As per the documents of the case, the presiding judge in that case had contacted Ms Ma lots of times and checked with Ma’s relative in Beijing but failed to get the exact address of Ms Ma in Canada. Therefore, the documents were served through the notice published at the People’s Court Daily and the divorce judgment was granted on March 16th, 2008. That means from March 16th, 2008, Ms Ma is no longer the wife to Mr Liu. Ms Ma withdrew her case at the court. She is happy that she finally is relieved from the dead marriage and is sad that the husband she spends ten years waiting has become a stranger already.

In Ms Ma’s case, lots of mysteries need to be solved like how Ms Ma’s relatives had no idea of her address abroad in 2008, but one thing is for sure, by the time Mr Liu filed his divorce lawsuit, he must have clear idea that Ma was not available in China during that time and he was aware it was not possible for the court to reach her outside of China. For Ms Ma, ten years, she could have used lots of means to find the whereabouts about Mr Liu but chooses to wait.

Ms Ma’s case is not an individual case. In 2011, a case causes nation wide attention about Du Shuanghua’s divorce case. Du, a billionaire and a steel giant divorced his wife in 2001 which is only known to his wife ten years later after she filed a divorce lawsuit in September, 2011. Du filed the divorce lawsuit in the place where he lived and where he had great reputation with big power. The court accepted the case by the reason that the whereabouts of Song is no where to find. The court served the documents by public announcement which of course was unknown to Du’s wife, who was not living in that area at all. The court granted a divorce judgment in default finally. As per Du’s wife’s lawyer, lots of mistakes exist both in procedure and in substance as the presiding judge failed to dig deep into the whereabouts of Du’s wife, inconsistency exists in the judgment and etc. The wife has filed for retrial of the divorce case in 2001 as her 2011 divorce case was rejected by the court with the early judgment available. The result remains unknown.

“Being divorced” is no longer a joke but a serious legal issue. In being divorce cases, one party takes full advantage of the loopholes in the present legal system, first the loophole in jurisdiction.

Unlike the old days in China where people are stick to the place where they live from the childhood and where their residential place is registered, more often than not, the registered residential place is different from the living place. Therefore, when one party files divorce lawsuit, if he or she on purpose hides the information about the habitual place of the other party, he or she can file a lawsuit at the court in the area where the other party’s residential place is registered. As a result, no one is found in that place.

The second situation is when the couple is in separation and is living in different places, the party is, as per law, allowed to file the divorce in the habitual place or registered residential place where he or she is in by the reason that the other party has been away from the habitual for more than a year and is no where to be found. The party may at court’s request provides the court with contact information to verify but such contact information may be out of reach or not true at all.

Second, once the divorce judgment is issued, even if there exists procedure mistake like jurisdiction, as per the Supreme Court’s explanation, retrial will not touch the dissolution of marriage but only the child custody and the division of assets. Therefore, no remedy is available so far to the mistake made.

To whose who are involved in foreign related marriage or in a party who is abroad or is planning to go abroad, or who is in separation, precautions need to be taken against the possibility of being divorced. No. 1, always keep in contact with the other party to pay close attention to what he or she is doing. No. 2, always keep the other party notified of your new contact number and do not change the mobile number often to make sure you are always reachable. No. 3, always keep a close eye on the fiancé status of the other party, bank account, investment information and etc. No.4, most important of all, have detailed information about the other party, where he or she is working, who are his or her relatives, what are there contact information and etc. For the other party who is a foreigner or who goes abroad for study, make sure have a copy of the passport number, all the copies of his or her ID documents like social insurance number abroad to make sure once a divorce is filed, the other party is reachable.

Good news is courts nowadays are more and more careful about the divorce cases where one party is not reachable but when one party is abroad or when one party is a foreigner, the court’s hands are still tied. So divorce like a war, to know the other side and to know yourself is always the best policy to win!

 

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