Question 43: Under which circumstances is the Judge allowed to postpone a Court hearing of divorce?

In the actual process of resolving many litigation cases, there have been lots of unexpected situations in the Court hearings or meetings, causing the inability to carry out the hearing or situations which are likely to adversely affect the litigants’ rights and interests potentially lacking objectiveness, accuracy, and equity of the trial, if carried on. In these cases, the Civil Proceedings Law bestows rights on the Court, as well as certain parties in the case, to overcome such misfortune. One of them is the postponement of the current trial in order to hold another one, in which the Judge has the right to postpone the trial for divorce in following circumstances:

  1. Postponement in case of change of the person conducting the proceedings

In many divorce cases, the individuals conducting such as Judges, Jurors, Inspectors, Court Clerks, and Prosecutors have close relation with or joint benefits with litigants. In this case, it is difficult to ensure that these persons are objective and impartial in the proceedings. Commonly, they are not assigned or have to proactively decline to participate in such divorce cases. In the occurence where they are still assigned to the cases as the Chief Justice of the Court has not known such relation and benefit and they do not decline; the litigants still have the right to request for a substitute to replace these people in order to protect themselves. The litigants shall submit the request to the Council of Adjudicators as well as evidence and the reasoning attached to the necessary substitution of the people conducting the proceedings. The Council of Adjudicators will determine whether the change is in accordance with the law on a majority vote basis. If one of them is substituted, the Court hearing will be postponed[2].

2. Postponement for the replacement of other Court attendees

Similarly, in a divorce trial, the replacement of expert examiners and interpreters (when there are reasonable reasons proving these persons cannot be impartial and objective when participating in the case) is determined by the Judges and the Council of Adjudicators after hearing the opinion of the person requesting the substitute. The Council of Adjudicators deliberate in a room and decide by majority. When having to change an expert examiners or interpreter, the Judge or the Council of Adjudicators will issue a decision to postpone the trial, the meeting[4].

3. Postponement for the absence of the litigant, representative, or defender of litigant’s lawful rights and benefits

If being duly summoned to a divorce trial for the first time, in the absence of either spouse, their representatives, or any person defending their legal rights and interests of them (e.g. lawyers, legal aid officers), Council of Adjudicators must postpone the trial unless these people have a request to be absent. This provision helps safeguard the litigants’ legitimate rights and interests, giving them as well as their representatives and defenders an opportunity to attend the next trial. However, in practice, this provision is often taken advantage of by the spouses who do not act in good faith when delaying the trial, causing difficulties, and costing time and effort for the other spouse. In this case, the Court must notify the litigants, their representatives, and defenders regarding the postponement of the Court trial.

However, when being duly summoned for the second time, the litigants, their representatives, or defenders of their lawful rights and interests must be present at the trial, unless they have requested to be absent. If not, the Court will still proceed to the trial in the absence of these individuals. However, if they are absent due to force majeure events or objective obstacles (such as being suddenly hospitalised, having an accident on the way to the Court, etc.), the Court may also postpone the trial[6]. This deferral is not compulsory but is subject to the Court’s decision. If it is not due to force majeure or objective obstacles, the absence of the spouses at the trial may be a reason for the Court to dismiss their petition (they are considered to have abandoned the petition if they are absent and do not have a request for the trial to be carried without them).

4. Postponement for the absence of other Court attendees

The Council of Adjudicators will decide to postpone the trial if the absence of witnesses at the trial causes difficulties and affects the objective and comprehensive settlement of the case[8]. However, if the witnesses have previously testified in front of the Court, the Council of Adjudicators will not postpone the trial.

The Council of Adjudicators may postpone the trial or still proceed with it even if the expert examiner is absent, depending on their view on the necessity of this examiner’s presence [10].

In case the interpreter is absent but that no substitute is available, the Council of Adjudicators will postpone the trial [12].

5. Postponement at the request of litigants

When a participant in the proceedings is absent from the trial but is not included in one of the cases where the Court has to postpone the trial, the Presiding Judge must ask if anyone has offer to postpone the trial. If there is indeed a request, the Council of Adjudicators will consider and decide according to the procedure prescribed by the Civil Proceedings Code. They may or may not accept such proposal. In case of disapproval, the Council of Adjudicators must clearly state the reason[14].

Note: Cases for the postponement of the trial at the first instance trial also apply to the appellate trial.

[2] Article 56.2, 62.2 of the Civil Proceedings Code 2015.

[4] Article 84.2 of the Civil Proceedings Code 2015.

[6] Articl 227.1 of the Civil Proceedings Code 2015.

[8] Article 229.2 of the Civil Proceedings Code.

[10] Article 230.2 of the Civil Proceedings Code.

[12] Article 231.2 of the Civil Proceedings Code.

[14] Article 241.2 of the Civil Proceedings Code 2015.

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