Can the woman sue for divorce if the man is an active soldier during pregnancy

Tang and Li were introduced to each other and got married on June 6, 2013. Tang's husband, Li, is the platoon leader (non civilian) of a PLA unit. Because Tang has been working in other provinces for a long time and Li has been serving in the army, the husband and wife have been separated from each other for a long time, resulting in the breakdown of their relationship. After five months of pregnancy, Tang felt unattended and helpless, so he filed a civil lawsuit with the court of his residence and requested to order him and the defendant Li to divorce. The plaintiff Tang neither stated that the defendant Li had a major fault, nor provided evidence that the defendant had a major fault.

[focus of dispute]

The man in this case is an active serviceman, and the woman is still pregnant. Can she sue for divorce? Are the procedures for handling military divorce disputes the same as those for ordinary divorce disputes? The man in this case is an active non civilian soldier. Does the district court have jurisdiction?

The first opinion is that the marriage law clearly stipulates that the woman cannot sue for divorce during pregnancy in order to protect women's rights and interests, and the man is a soldier. Article 33 of the marriage law stipulates that: "the spouse of an active serviceman must obtain the consent of the soldier if he requests divorce..." so the woman cannot sue for divorce; The procedure of military divorce dispute cases is the same as that of general civil disputes; The man in this case is an active serviceman, and the local court has no jurisdiction over military disputes.

The second opinion is that during pregnancy, the woman can sue for divorce, just to protect women's rights and interests; The procedure of military divorce dispute cases is different from the general civil dispute procedure, which is more cautious and rigorous; Although the man in this case is a non civilian soldier in active service, the local court has jurisdiction over the divorce dispute.

[judge's statement]

The author agrees with the second view for the following reasons:

1. On whether the woman can sue for divorce while she is still pregnant

Article 34 of China's marriage law stipulates: "the man shall not apply for divorce during pregnancy, within one year after childbirth or within six months after termination of pregnancy. This restriction shall not apply if the woman applies for divorce, or if the people's court deems it necessary to accept the man's request for divorce. " The legal provisions stipulate that under the three circumstances of "pregnancy", "within one year after childbirth" and "within six months after termination of pregnancy", the man cannot apply for divorce, while the woman "does not apply for divorce". After the woman Tang in the case was five months pregnant, it was OK for him to file a divorce lawsuit in the court.

Article 33 of China's marriage law stipulates that "the spouse of an active serviceman who requests divorce must obtain the consent of the serviceman,..." this article does not deny the right to sue for divorce of "the spouse of an active serviceman", but stipulates that "the consent of the serviceman" is required to achieve the purpose of "granting divorce", that is, if the spouse of an active serviceman files a divorce, although the law limits the right to win a lawsuit, But it does not limit the right to sue, which can be understood as a trade-off between "freedom of marriage" and "national defense security".