Breakdown of mutual affection (夫妻感情确已破裂) is the core standard for a court divorce in China. Under Article 1079 of the PRC Civil Code, the court must first try mediation; if mediation fails and mutual affection has truly broken down, the divorce shall be granted. The Code lists situations in which breakdown is established: bigamy or cohabiting with another person; domestic violence, maltreatment or desertion of a family member; gambling or drug addiction that continues despite repeated admonition; separation for two years due to discord; and other circumstances causing breakdown. If a court has refused a divorce and the spouses then live apart for another year, a new petition shall be granted.
Why it matters
This is a fault-neutral but evidence-heavy test. A spouse who wants a divorce and a spouse who refuses will argue over whether the relationship is really over. In practice, where there is no clear statutory ground, courts often refuse a first contested petition, hoping for reconciliation. After a judgment refusing divorce, the plaintiff generally cannot re-file within six months without new circumstances. Planning evidence from the start makes a real difference to how long the process takes.
How it works in practice
An Australian woman living in Shenzhen filed for divorce; her husband opposed it. She had no evidence of violence or an affair, and her first petition was refused. She moved out, kept a lease and utility records in her own name, and re-filed later with evidence of continued separation and failed mediation. The second petition was granted.
Common mistakes
- Assuming the court will grant a divorce simply because one spouse wants it
- Filing without evidence of separation, violence or other statutory circumstances
- Re-filing within six months of a refusal without new facts
- Continuing to live together while claiming the relationship has broken down
- Underestimating how much chat records, police reports and leases can help