Question 25: In a divorce case, if a spouse who is the plaintiff withdraws a petition for divorce and the other spouse also agrees on the withdrawal but their joint child(ren) do not agree and want the Court to continue resolving the lawsuit for divorce, does the Court keep resolving the divorce case?

In principle, the decision of continuing or terminating a marriage relationship is a matter of the personal rights and must be decided by the spouses[3]. The termination or continuation of a marriage relationship will depend on the independent decision made by the spouses, no one has the right to intervene, except in some exceptions[4]. Therefore, in case both spouses agree to withdraw their divorce petition in order to continue their marriage relationship, it will be completely decided by them and no one has the right to intervene, whether the person who wants to intervene is their children, their biological parents or any other subjects. In addtion, maintaining the marriage relationship is always supported by law. Because of this principle, the Civil Proceedings Law obligates the Court to carry out conciliation prior to conducting the trial, no matter either unilateral divorce or divorce by mutual consent. Therefore, the spouse’s withdrawal of a petition for divorce shall be recognised and supported and no one can intervene against this right.

The law also has specific provisions to ensure this principle. Forcing a person into divorce is one of the prohibited acts under the Law on Marriage and Family[8]. In a divorce case, the plaintiff’s withdrawal of the petition for legal action and the defendant’s consent will make the case be closed without subject to consent of any other subject. Then, the Court will issue a decision to suspend the case[9], and the marriage relationship will continue[10].

[3] Article 25.1 of the Civil Code 2015.

[4] Article 10.2 of the Civil Proceedings Code 2015.

[8] Article 5.2.(e) of the Law on Marriage and Family 2014.

[9] Article 217.1.(g) and 192.1.(g) of the Civil Proceedings Code 2015.

[10] Article 57.1 of the Law on Marriage and Family 2014.

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