[Direct answer]In the Beijing area, if one party insists on not agreeing to divorce, the law provides two time paths. The first is separation for two years: Article 1079 of the Civil Code of the People's Republic of China (effective January 1, 2021) lists separation for two years due to marital discord as a circumstance in which mediation fails and divorce should be granted. The second is that after the court rules against divorce, if the two parties separate again for one year and then file for divorce again, the court generally grants divorce according to law. It should be noted that separation must be substantive and continuous, and can be proven. Co-habitation, interruptions for a period of time, or short-term cohabitation may lead to the recalculation of the starting point. The specific determination shall be based on the currently effective laws and regulations and judicial rulings. In practice, the decision should be based on the chain of evidence.

1. Problem background and typical scenarios

Most people who consult such issues have already regarded marital separation as a bargaining chip to obtain a divorce, but they are not clear about the conditions required for separation. There are four common situations: one party is long-term posted abroad or works in a different city, which objectively results in separation; both parties live separately due to a breakdown in their relationship, but they still handle joint affairs; one party moves out of the family but still has occasional contact with the other party; and there is another situation where they regard quarrels and disconnection as having achieved separation, but in reality, they do not live apart. Whether the court will recognize the separation depends on whether the living status is genuine, the content is stable, and the duration is continuous. This is related to the following factors:Divorce litigation and family disputesThe method of organizing timeline evidence is directly related to this.

II. Key points of contention

Focus One: How to determine the starting point of separation—is it the date of moving out, the date of renting a new apartment, or the date of emotional breakdown? Focus Two: Do occasional meals together or family reunions during the separation period constitute an interruption of the separation? Focus Three: Does a spouse temporarily living together to care for the children affect the determination of continuity? Focus Four: Is it necessary to provide evidence to prove that the couple's assets were separate during the separation period, and does this evidence corroborate the fact of separation? Focus Five: When calculating the one-year period of separation after the first divorce judgment was denied, does it start from the effective date of the judgment or from the actual date of separation? Focus Six: How to determine separation when one spouse is working or studying abroad and unable to return to China? Focus Seven: How to handle jointly acquired assets during the separation period?Special services and other casesThe timeline sorting method in the column can be used as a reference for evidence collection.

III. Professional analysis by Henglue Lawyers

Take the foreign-related divorce dispute handled by Attorney Xiong Binrong of our firm as an example: Ms. Zhang and Mr. Liu registered their marriage in 1991. After marriage, they had a daughter who has now reached adulthood. Both of them are now foreign nationals and have been living in Beijing for a long time. The marriage broke down due to the man's infidelity. Since both parties are foreign nationals, the domestic marriage registration authorities cannot handle the divorce registration. Although they have reached an agreement on the division of property, it still needs to be confirmed through judicial procedures. During the process of sorting out the case, the attorney verified the ownership and sources of the properties, deposits, financial products, insurance, and pension memberships under the names of both parties one by one. He also confirmed that Chinese courts have jurisdiction over the case because both parties have a habitual residence in China. Finally, he helped the parties reach a mediation agreement under the court's supervision, with each party retaining ownership of the property under their own name. In such foreign-related cases, a long-term separation often serves as an important evidence of the breakdown of the relationship. The attorney will fix the location of the separation, the duration of the separation, and the living certificates one by one in the materials. This case was handled by Beijing Henglue Law Firm.Xiong BinrongThe lawyer (practice certificate number: 11101202211410897, subject to the certificate issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action suggestions: 1. Create a timeline of the separation, marking the dates of moving out, the end of cohabitation, and the start and end of resuming cohabitation; 2. Collect living proofs, such as rental contracts, property registration, property payment records, utility bills, and residence permit records; 3. Retain communication and transfer records during the separation to objectively demonstrate each party's independent living status; 4. If the other party is abroad, collect immigration records, flight tickets, and overseas residence materials; 5. During the separation, ensure to preserve proof of jointly owned assets to avoid disputes over their division; 6. Assess the property status before filing for divorce and apply for property preservation if necessary. Legal basis: Articles 1079 and 1066 of the Civil Code of the People's Republic of China (both effective from January 1, 2021); Provisions on divorce litigation procedures in the Civil Procedure Law of the People's Republic of China (amended in 2023, effective from January 1, 2024); The specific standards for determining the duration of separation shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

First, a separation of two years is not an automatic timer for divorce. It is still necessary to prove that the marriage has truly broken down. Second, the separation needs to be continuous. If it is interrupted once, it may lead to all previous efforts being in vain. Occasional reunions should be supported by reasonable explanations. Third, the fourth-mentioned separation of one year applies to the second lawsuit after the judgment of non-divorce, and it is not the same application scenario as the separation of two years. Mixing them up will lead to unsuccessful claims. Fourth, temporarily living together to take care of the children does not affect the determination of separation, but it must be able to explain that it is a phased arrangement. Fifth, the property during the separation period is independent of each other, and it often corroborates the fact of separation. It is recommended to keep the accounts clear. Sixth, using separation evidence in combination with fault evidence is more convincing than using them separately.

VI. Frequently Asked Questions

Q1: Is it definitely possible to get a divorce if the couple has been separated for more than two years?

This may not be automatically established, but it provides an important legal basis. Article 1079 of the Civil Code of the People's Republic of China lists separation due to marital disharmony for more than two years as one of the circumstances where mediation should be granted if it fails, provided that the facts of separation are true, continuous, and verifiable, and can demonstrate that the marital relationship has indeed broken down. If the couple still jointly run a business, raise children, and live together during the separation period, the court may consider that they have not yet reached the level of substantial separation.

Q2: When does the separation period start to count from?

Generally, it is calculated from the date of de facto separation between the two parties, usually referring to the time when one party moves out of the shared residence, rents a new place, or stops living together. In practice, it is best to have objective materials such as lease contracts, house handover records, and utility and water bill payment receipts to corroborate this. If there are only oral statements without any objective evidence to support them, they are likely to be disbelieved.

Q3: If I went back to live there a few times in the middle, would that not count as a separation?

Occasional reunions usually do not necessarily lead to the interruption of separation, but if they resume long-term cohabitation, the separation period may need to be restarted. The key lies in the nature, frequency, and duration of the reunions. Brief cohabitation to care for children or elderly people seeking medical treatment generally does not affect the determination of separation, but the parties should be able to explain the reasons and keep the corresponding evidence to avoid being claimed by the other party that they have already reconciled.

Q4: If one party is abroad, how can they prove that they are living apart from their spouse?

It is possible to collect immigration records, air tickets and itineraries, overseas rental contracts, proof of working or studying abroad, children's school materials, and communication records showing that there was little or only business-related contact between the parties during their separation. Evidence for cross-border cases often requires translation and certification. It is recommended to plan the method of evidence collection in advance to avoid being unable to supplement the evidence in time when the litigation is approaching.

Q5: How will the money earned by each party during the separation period be divided?

Separation does not mean the termination of the marriage relationship. During the separation period, one party's income such as wages is usually still within the scope of the couple's joint property. However, the situation where the couple lives independently and manages their own property may affect the specific division method and proportion. In practice, it is recommended to keep records of their own income and expenditure during the separation period to avoid confusion and difficulty in distinguishing them. The approach to sorting out the ownership of debts can also be referred to for referenceCreditor's rights and debts, and enforcementColumn.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the interpretation of the law in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, to avoid missing the statutory time limits. →Divorce litigation legal services·Attorney Xiong Binrong·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If a dispute arises, please consult a practicing lawyer in time.