第四章离婚

Chapter IV    Divorce

 

第三十一条男女双方自愿离婚的，准予离婚。双方必须到婚姻登记机关申请离婚。婚姻登记机关查明双方确实是自愿并对子女和财产问题已有适当处理时，发给离婚证。

Article 31 Divorce shall be granted if husband and wife both desire it. Both parties shall apply to the marriage registration¹ office for divorce. The marriage registration office, after clearly establishing that divorce is desired by both parties and that appropriate arrangements have been made for the care of any children and the disposition² of property, shall issue the divorce certificates.

 

第三十二条男女一方要求离婚的，可由有关部门进行调解或直接向人民法院提出离婚诉讼。

Article 32 When one party alone desires a divorce, the organizations concerned may carry out mediation³, or the party may appeal directly to a people's court to start divorce proceedings⁴.

 

人民法院审理离婚案件，应当进行调解；如感情确已破裂，调解无效，应准予离婚。

In dealing⁵ with a divorce case, the people's court should carry out mediation between the parties. Divorce shall be granted if mediation fails because mutual⁶ affection no long exists.

 

有下列情形之一，调解无效的，应准予离婚：

Divorce shall be granted if mediation fails under any of the following circumstances:

 

（一）重婚或有配偶者与他人同居的；

(1)bigamy or, cohabitation of a married person with any third party;

 

（二）实施家庭暴力或虐待、遗弃家庭成员的；

(2)domestic violence or, maltreatment and desertion of one family member by another;

 

（三）有赌博、吸毒等恶习屡教不改的；

(3)bad habits of gamble or drug addiction⁷ which remain incorrigible⁸ despite repeated admonition;

 

（四）因感情不和分居满二年的；

(4)separation caused by incompatibility⁹, which lasts two full years; and

 

（五）其他导致夫妻感情破裂的情形。

(5)any other circumstances causing alienation¹⁰ of mutual affection.

 

一方被宣告失踪，另一方提出离婚诉讼的，应准予离婚。

Divorce shall be granted if one party is declared to be missing and the other party thereby¹¹ files an action for divorce.

 

第三十三条现役军人的配偶要求离婚，须得军人同意，但军人一方有重大过错的除外。

Article 33 If the spouse¹² of a soldier in active military service desires a divorce, the soldier's consent must b e obtained, except that the soldier commits a serious fault.

 

第三十四条女方在怀孕期间、分娩后一年内或中止妊娠后六个月内，男方不得提出离婚。女方提出离婚的，或人民法院认为确有必要受理男方离婚请求的，不在此限。

Article 34 A husband may not apply for a divorce when his wife is pregnant or within one year after the birth of a child or within six months after pregnancy¹³ suspension. This restriction¹⁴ shall not apply in cases where the wife applies for a divorce, or when the people's court deems it necessary to accept the divorce application made by the husband.

 

第三十五条离婚后，男女双方自愿恢复夫妻关系的，必须到婚姻登记机关进行复婚登记。

Article 35 If, after divorce, both parties desire to resume their husband-and-wife relationship, they shall register for the remarrying of each other with the marriage registration office.

 

第三十六条父母与子女间的关系，不因父母离婚而消除。离婚后，子女无论由父或母直接抚养，仍是父母双方的子女。

Article 36 The relationship between parents and children shall not come to and end with the parents" divorce. After divorce, whether the children are put in the custody¹⁵ of the father or the mother, they shall remain the children of both parents.

 

离婚后，父母对于子女仍有抚养和教育的权利和义务。

After divorce, both parents shall still have the right and duty to bring up and educate their children.

 

离婚后，哺乳期内的子女，以随哺乳的母亲抚养为原则。哺乳期后的子女，如双方因抚养问题发生争执不能达成协议时，由人民法院根据子女的权益和双方的具体情况判决。

In principle the mother shall have the custody of a breast-fed infant after divorce. If a dispute arises between the two parties over the custody of their child who has been weaned and they fail to reach an agreement, the people's court shall make a judgment¹⁶ in accordance with the rights and interests of the child and the actual conditions of both parents.

 

第三十七条离婚后，一方抚养的子女，另一方应负担必要的生活费和教育费的一部或全部，负担费用的多少和期限的长短，由双方协议；协议不成时，由人民法院判决。

Article 37 If, after divorce, one party has been given custody of a child, the other parent shall bear part or the whole of the child"s necessary living and educational expenses. The two parties shall agreement regarding the amount and duration of such payment. If they fail to reach an agreement, the people's court shall make a judgment.#p#分页标题#e#

 

关于子女生活费和教育费的协议或判决，不妨碍子女在必要时向父母任何一方提出超过协议或判决原定数额的合理要求。

The agreement or the court judgment on a child's living and educational expenses shall not prevent the child from making a reasonable request, when necessary, to either parent for an amount exceeding what was decided¹⁷ upon in the said agreement or judgment.

 

第三十八条离婚后，不直接抚养子女的父或母，有探望子女的权利，另一方有协助的义务。

Article 38 After divorce, the father or the mother who does not rear their children directly shall have the right to visit them, while the other party shall have the duty to give assistance.

 

行使探望权利的方式、时间由当事人协议；协议不成时，由人民法院判决。

The parents shall reach an agreement about how and when to exercise the right of visit. If they fail to reach an agreement, the people's court shall make a judgement.

 

父或母探望子女，不利于子女身心健康的，由人民法院依法中止探望的权利；中止的事由消失后，应当恢复探望的权利。

If the father or the mother visits their children to the detriment¹⁸ of their mental and physical health, a people's court shall suspend the right of visit according to law; and such a right shall be restored after the main content of the suspension disappears.

 

第三十九条离婚时，夫妻的共同财产由双方协议处理；协议不成时，由人民法院根据财产的具体情况，照顾子女和女方权益的原则判决。

Article 39 At the time of divorce, the disposition of the property in the joint¹⁹ possession of husband and wife is subject to agreement between the two parties. In cases where an agreement cannot be reached, the people's court shall make a judgement in consideration of the actual circumstance of the property and on the principle of caring for the rights and interests of the wife and the child or children.

 

夫或妻在家庭土地承包经营中享有的权益等，应当依法予以保护。

The rights and interests enjoyed by husband or wife in the operation of land under a contract based on the household shall be protected according to law.

 

第四十条夫妻书面约定婚姻关系存续期间所得的财产归各自所有，一方因抚育子女、照料老人、协助另一方工作等付出较多义务的，离婚时有权向另一方请求补偿，另一方应当予以补偿。

Article 40 According to a couple's written agreement, the items of property acquired during their marriage are in the separate possession. In this connection, if one party performs more duties in rearing their children, looking after their elders and assisting the other party in work, he or she shall have the right at the time of divorce to request compensation from the other party who shall make the compensation.

 

第四十一条离婚时，原为夫妻共同生活所负的债务，应当共同偿还。共同财产不足清偿的，或财产归各自所有的，由双方协议清偿；协议不成时，由人民法院判决。

Article 41 At the time of divorce, debts incurred²⁰ by the husband and wife during their marriage shall be paid off out of their jointly²¹ possessed²² property. If such property is insufficient²³ to pay off the debts or, the items of the property are in the separate possession, the two parties shall work out an agreement with regard to the payment. If they fail to reach an agreement, the people's court shall make a judgment.

 

第四十二条离婚时，如一方生活困难，另一方应从其住房等个人财产中给予适当帮助。具体办法由双方协议；协议不成时，由人民法院判决。

Article 42 If, at the time of divorce, one party has difficulties supporting himself or herself, the other party shall render appropriate help from her or his personal property such as a dwelling²⁴ house. Specific arrangements shall be made between both parties through consultation²⁵. If they fail to reach an agreement, the people's court shall make a judgement.

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