[Direct answer]If the defendant is summoned by a subpoena but refuses to appear in court without a valid reason, or leaves the courtroom without the court's permission, the people's court may make a judgment in absentia (Article 147 of the Civil Procedure Law of the People's Republic of China, the amended version of which will come into effect on January 1, 2024); however, in divorce cases involving marital status, the court will still review the evidence provided by the plaintiff to determine whether the marriage has broken down, and address issues related to property and child custody, rather than automatically granting a divorce solely because the other party fails to appear in court. If the divorce is not granted the first time, and the parties separate again for more than a year after the judgment takes effect and then file a lawsuit again, the divorce shall be granted in accordance with Article 1079 of the Civil Code. For details on procedures and strategies, please refer to the following link:Divorce litigation and legal services for family disputesAndBeijing Henglu Law Firm.

I. Problem Background and Typical Scenarios

The defendant's failure to appear in court is a common situation in divorce litigation: one party firmly refuses to divorce, mistakenly believing that "if they don't appear in court, they won't be able to divorce"; the parties have intense conflicts and refuse to answer the phone or accept the subpoena; or the defendant often works in other places and even has an unknown whereabouts, making it difficult for the court to serve the documents in person. At this time, the plaintiff is most worried about wasting their time and having their property and custody issues put on hold; some plaintiffs also mistakenly believe that the defendant's absence means they will automatically "be left with nothing". In practice, whether the court can hold a trial in absentia and what impact the absence has on the determination of marital feelings, property division, and custody decisions directly determine the formulation of litigation strategies and the outcome of the case.

II. Key points of dispute

  • The prerequisites for the application of a default judgment: the service must be legal, and it is essential to either effect service directly, leave the document with the addressee, or announce the service after the expiration of the time limit. Whether the defendant "was summoned by a subpoena but refused to appear in court without a valid reason" shall be reviewed by the court. Procedural defects may result in the default judgment being sent back for retrial or having the verdict changed in a second-instance review.
  • The intensity of the review of identity relationships: In divorce cases, the substantive review will not be simplified due to the defendant's absence. Whether the relationship has broken down will still be determined based on the evidence in accordance with Article 1079 of the Civil Code. The defendant's absence does not mean that the court will complete the burden of proof for the plaintiff. Oral accusations alone are unlikely to lead to a divorce being granted.
  • Property and child support determination in the absence of the defendant: The defendant is unable to cross-examine the evidence, so the plaintiff must provide complete evidence regarding the scope of the property, the nature of the debt, and the conditions of child support. Those who allege infidelity or property transfer need even more solid evidence. Subsequent issues regarding the fulfillment of obligations can be addressed accordingly.Creditor-debtor relations and enforcement case servicesEvaluate the preservation and enforcement paths in advance.

III. Professional analysis by Henglue Law Firm

缺席审理的胜负取决于原告能否独立支撑全部事实认定，恒略律师办理的一起离婚案完整呈现了法院对离婚实体的审查逻辑。王某生与张某华2006年登记结婚，育有一女（已成年）与一子（11岁），婚后积累房产、车辆、机器设备、保险等财产。2025年4月张某华先起诉离婚，王某生挽留，同年8月法院判决不准离婚；两个月后王某生发现张某华出轨，遂委托北京恒略律师事务所熊斌蓉律师再次起诉，提出解除婚姻、婚生子随原告生活并由被告支付抚养费、分得70%共同财产、分担债务524782元、损害赔偿5万元等六项诉求。庭审中张某华口头同意离婚却附加苛刻条件，反指王某生转移财产、虚构债务、不适合抚养孩子。熊斌蓉律师整理首次不准离婚判决与出轨证据，证明感情确无和好可能；结合子女成长环境与抚养能力，依最有利于未成年人原则主张孩子随王某生生活；并紧扣《民法典》照顾无过错方原则主张倾斜分割。法院认定张某华在首次起诉被驳回后仍婚内出轨，感情确已破裂，准予离婚；判婚生子随王某生生活，张某华每月支付抚养费550元至成年；依「照顾子女、女方和无过错方权益」原则认定张某华存在重大过错，支持王某生分得70%共同财产，房屋、轿车、货车归原告，织网机、整经机按7:3分割，教育基金保险归孩子；认定向原告父母借款35000元为共同债务由原告偿还，被告给付一半17500元；因财产分割已体现过错责任，驳回损害赔偿请求。本案双方均到庭对抗，而若被告拒不到庭，出轨、财产、抚养这些事实同样要靠原告的证据在缺席状态下说服法庭，这正是缺席审理的核心难点。

IV. Practical suggestions and legal basis

Law-based Perspective: Article 146 of the Civil Procedure Law of the People's Republic of China (amended in 2023 and effective from January 1, 2024) stipulates that if the plaintiff refuses to appear in court without a valid reason after being summoned by a subpoena, or leaves the courtroom without permission, the case may be treated as a withdrawal of the lawsuit, and the defendant's counterclaim may be adjudicated in absentia; Article 147 stipulates that if the defendant refuses to appear in court without a valid reason after being summoned by a subpoena, the case may be adjudicated in absentia; Article 95 stipulates that the announcement of service shall be deemed to have been effected 30 days after the date of issuance; Article 112 stipulates that if the defendant who must appear in court still fails to appear after being summoned by two subpoenas, they may be forcibly brought to court. Article 1079 of the Civil Code (effective January 1, 2021) lists the circumstances allowing divorce and stipulates that if the parties separate again after the court rules against the divorce and the separation lasts for more than one year, the divorce shall be granted; Article 1087 establishes the principle of dividing the property in a way that takes into account the interests of the children, the wife, and the innocent party. Article 13 of the Measures for the Payment of Litigation Fees (effective April 1, 2007) stipulates that for divorce cases, the litigation fee shall be paid at a rate of 50 yuan to 300 yuan per case. If the total amount of the property division involved does not exceed 200,000 yuan, no additional fee shall be paid for the exceeding part. Practical Advice: Before filing a lawsuit, fix three types of evidence, including the breakdown of the marriage, property, and custody; if the defendant's whereabouts are unknown, apply for announcement of service and preserve the defendant's property as soon as possible; if there is a low possibility of the defendant appearing in court, prepare a complete chain of evidence according to the standards for adjudicating in absentia; and plan ahead for procedural milestones such as property appraisal and preservation applications to avoid repeated delays in the trial.

5. Henglu Law Firm's Reminder

The defendant's failure to appear in court is neither a shield against delaying tactics nor a signal that the plaintiff will definitely win the case. To ensure a quick and stable default judgment, it is necessary to properly serve the defendant with the legal documents and prepare sufficient evidence in substance. The defendant should also understand that failing to appear in court means giving up the right to cross-examine witnesses and defend themselves, which may lead to a more unfavorable judgment. If they truly encounter difficulties, they should hire a lawyer to defend themselves or apply for a postponement. The above-mentioned fault-based division of liability case is handled by Beijing Henglu Law Firm.Xiong BinrongThe lawyer (practice license number: 11101202211410897, subject to the document issued by the judicial administrative organ) acts on behalf of the client. The innocent party ultimately receives 70% of the joint property and gains custody of the children. If you are currently facing a similar dispute, it is recommended that you seek legal assistance as soon as possible.Beijing Henglue Law FirmMake an appointment for an assessment to grasp the timing of prosecution and the window for securing evidence.

Q1: If the defendant in a divorce case does not appear in court, will the court directly grant the divorce?

Not necessarily. If the defendant refuses to appear in court without a valid reason after being summoned and served with a legal notice, the court may issue a default judgment in accordance with Article 147 of the Civil Procedure Law, and there is no such rule that "if the defendant does not appear in court, the divorce cannot be finalized". However, in terms of substance, the court still needs to review whether the marital relationship has truly broken down. The plaintiff needs to provide evidence of circumstances such as bigamy, cohabitation, domestic violence, or separation for more than two years in accordance with Article 1079 of the Civil Code, or provide sufficient evidence of the breakdown of the marriage. If it is the first time the plaintiff sues and there are only conflicting statements and insufficient evidence, the court may rule against the divorce. If the parties separate again for more than a year after the court rules against the divorce and then sue again, the court shall grant the divorce in accordance with Article 1079, making the divorce process more clear-cut.

Q2: The defendant's whereabouts are unknown and cannot be contacted. How long will it take to issue a verdict?

If the defendant's whereabouts are unknown or cannot be served in other ways, the court may apply for public notice service. According to Article 95 of the Civil Procedure Law, the service shall be deemed to have been effected 30 days after the announcement is made. If the defendant still fails to appear in court after the expiration of the time limit, a judgment may be rendered in absentia. The overall duration depends on the length of the public notice and the progress of the trial. The first-instance trial in ordinary procedures is generally completed within a few months, but it may take longer if it involves property evaluation and preservation. It is recommended that when suing, try to provide clues such as the defendant's address and workplace. If the service can be directly or left at the defendant's residence, the public notice step can be skipped. If there are clear signs that the defendant is evading service, it is advisable to proceed steadily with the public notice procedure with the assistance of a lawyer.

Q3: If the other party fails to appear in court, how will the property division and custody rights be determined?

In the absence of a hearing, the defendant waives the right to cross-examine the evidence. The court mainly relies on the plaintiff's evidence and investigations conducted on its own initiative to make a determination. With regard to property, the plaintiff should submit property registration certificates, bank statements, investment certificates, etc. If the plaintiff alleges that the defendant committed adultery or transferred property, they need to provide chat records, photos, police reports, etc. In accordance with Article 1087 of the Civil Code, the court shall grant preferential division based on the principles of considering the interests of the children, the wife, and the innocent party. For debt claims, the plaintiff must prove the authenticity and actual purpose of the debt. Custody rights shall be determined based on the principle of maximizing the interests of minors. The court will not automatically award custody to the plaintiff just because the defendant is absent. The plaintiff must prove their own custody conditions and the current living situation of the child. If the evidence is insufficient, the court may temporarily not deal with the disputed parts or require the plaintiff to provide additional evidence.

Q4: If the defendant still fails to appear in court despite being summoned twice, will they be detained and brought to court by force?

Generally, this is not the case. The compulsory summons is aimed at defendants who must appear in court. According to Article 112 of the Civil Procedure Law, it can only be applied when the defendant has been summoned twice by subpoena and refuses to appear in court without a valid reason. In practice, it is mainly used for defendants in alimony and child-rearing cases who cannot clarify the facts of the case if they do not appear in court, and it is rarely used in divorce cases. The court usually summons the defendant in divorce cases by subpoena and serves the notice by public announcement to proceed with the trial in absentia, rather than forcing them to appear in court. The plaintiff does not need to worry about whether the other party will appear in court. The focus should be on the legality of the service procedures and the completeness of the evidence. The defendant himself should also pay attention that if he fails to appear in court twice, he will face a judgment in absentia and unfavorable consequences.

Q5: If the first lawsuit didn't result in a divorce, what should I do next?

After receiving the judgment that does not allow divorce, first secure evidence of separation and the status of the marriage. If the parties have been separated for more than a year after the judgment takes effect, they should be granted a divorce according to Article 1079 of the Civil Code. This is the most clear-cut path to obtaining a divorce. During this period, avoid exacerbating conflicts with the other party, and leave evidence of the separation status through rental contracts, community certificates, etc. At the same time, check whether the other party has transferred assets and apply for preservation measures if necessary. When filing the second lawsuit, disputes over property and custody can be handled together, significantly increasing the likelihood of obtaining a divorce. Regarding fees, the acceptance fee for the case is 50 yuan to 300 yuan per case according to Article 13 of the "Measures for the Payment of Litigation Fees". For cases involving property division with a total amount not exceeding 200,000 yuan, no additional fees are charged. For amounts exceeding this, a fee of 0.5% of the total amount is charged.

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