[Direct answer]Yes. The divorce cooling-off period is just a waiting period in the process of divorce by agreement. During this period, the marital relationship between the two parties still exists, and they still have the obligation of fidelity as stipulated in Article 1043 of the Civil Code. If one party cohabits with others during the cooling-off period, it is a faulty behavior during the existence of the marital relationship, and in practice, it is usually regarded as one of the circumstances of infidelity. The innocent party can not only refuse to divorce by agreement and switch to litigation procedures, but also claim damages for divorce according to Article 1091 of the Civil Code when divorcing, and strive for appropriate consideration in the division of property.

1. Problem background and typical scenarios

Since the divorce cooling-off period system was established in the Civil Code, many litigants have misunderstood the legal nature of the cooling-off period. Some believe that after submitting the divorce registration application, "the relationship has already ended in name but not in fact", so they engage in extramarital affairs or even cohabitation with others during the 30-day cooling-off period; others believe that during the cooling-off period, the two parties "do not interfere with each other", and extramarital affairs do not count. In divorce cases handled in Beijing, disputes arising from one party cohabiting with others during the cooling-off period are not uncommon: some are discovered by their spouses living with a third party during the cooling-off period, and some turn to litigation after the cooling-off period ends due to the failure of reaching an agreement due to fault circumstances. It should be noted that the cooling-off period does not mean that the marriage relationship has ended. Before obtaining the divorce certificate, the two parties are still legally married, and the obligation of fidelity is not exempted just because the divorce application has been submitted.

II. Key points of dispute

First, does cohabiting with others during the cooling-off period constitute a legal offense? Although "cohabiting with others" in the circumstances of divorce damages compensation listed in Article 1091 of the Civil Code usually refers to continuous and stable cohabitation during the existence of the marriage relationship, the cooling-off period obviously still belongs to the period of the marriage relationship, so it can be included in the evaluation in principle. Second, whether this can be used to overturn the agreement divorce. The occurrence of such situations during the cooling-off period often means that the emotional conflicts between the two parties have intensified, and the agreement divorce is likely to be unable to proceed further. The innocent party can directly file a lawsuit for divorce with the court. Third, the difficulty of providing evidence. Cohabitation is highly covert, requiring a chain of evidence such as rental records, neighbor's testimonies, entry and exit images, and chat records to corroborate each other. Lone evidence is usually difficult to be accepted by the court.

III. Professional analysis by Henglue Lawyers

From the perspective of legal relations, the purpose of setting a cooling-off period is to give both parties a buffer period to rationally reflect on their feelings and make a prudent decision about whether to dissolve the marriage, rather than to give one party a "free period to act". Cohabiting with others during the cooling-off period, on the one hand, violates the duty of marital fidelity, and on the other hand, often completely destroys the basis for an agreed divorce. In practice, such situations have a significant impact on divorce litigation in three aspects: Firstly, when the court determines whether the marriage has broken down, cohabiting with others is an important reference factor; Secondly, according to Article 1087 of the Civil Code, property division shall be decided in accordance with the principles of taking care of the children, the wife, and the rights of the innocent party. The faulty circumstances may enable the innocent party to obtain appropriate compensation; Thirdly, if the circumstances meet Article 1091 of the Civil Code, the innocent party has the right to request damages during the divorce. When handling such cases, Beijing courts are more cautious in determining the fact of cohabitation, usually requiring continuous and stable evidence of cohabitation, and occasional hotel check-in records alone have limited probative value.

IV. Practical suggestions and legal basis

For the innocent party, if they discover that their spouse is cohabiting with another person during the cooling-off period, it is recommended to fix the evidence as soon as possible: save chat records, transfer records, rental contracts, or community entrance and exit records, and if necessary, report the case to the police or seek help from the property management or neighborhood committee to form written records. Subsequently, consult a lawyer as soon as possible to assess whether to convert the divorce by agreement into a litigation divorce, and simultaneously claim preferential property division and divorce damages in the litigation. It should be noted that the request for damages should be raised in the divorce litigation, and there is limited room for claiming damages separately after the divorce by agreement. The main legal basis includes: Articles 1043, 1077, 1087, and 1091 of the Civil Code of the People's Republic of China (effective January 1, 2021); the relevant specific determination standards shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Reminder

The cooling-off period is not an "exemption period". During this period, the actions of either party are still subject to the legal obligations of marriage. If you are going through a divorce in Beijing and encounter similar situations, it is recommended that you sort out the evidence and clarify your demands as soon as possible. You can do this byMarriage and family legal servicesOn the page, you can learn about the corresponding services and combine them with each other.Inheritance and division of assets、Property disputesWe will evaluate the overall property situation of the related sectors. For more practical issues, please refer to our website.Criminal legal servicesAndPersonal injury and medical disputesFor the content related to marriage and family in the column, please make an appointment for a face-to-face consultation if necessary.

VI. Frequently Asked Questions

Q1: If I discover that the other party is cohabiting during the cooling-off period, can we still divorce by agreement?

In theory, it's possible, but in practice, the conflicts between the two parties have usually escalated, making it difficult to proceed with the agreement. If the other party refuses to cooperate or there are significant property disputes, it is recommended to directly file for divorce with the court. The cooling-off period only applies to the divorce by agreement procedure.

Q2: What evidence can be provided to prove cohabitation during the cooling-off period?

Common evidence includes chat and transfer records, rental contracts, footage of entering and leaving the residential community, testimonies from neighbors or property management, and police report receipts. The evidence needs to form a mutually corroborating chain, as isolated evidence has limited probative value.

Q3: How much can be compensated for divorce damages?

The amount of compensation is determined by the court based on factors such as the degree of fault, the impact caused, and the local living standards. There is no unified standard for it, and it usually includes two parts: material damage and mental damage.

Q4: How long does the entire divorce process typically take?

For a divorce by agreement, the parties must wait for a 30-day cooling-off period after filing the application. After the cooling-off period expires, the parties can jointly apply for a divorce certificate within 30 days. For a divorce by litigation, it usually takes several months, and the time period will be longer in cases involving complex property disputes or where the other party's whereabouts are unknown.

Q5: What should you do first after discovering that the other party is in the cooling-off period after cohabitation?

First, secure the evidence and stay calm to avoid potential public security or criminal risks caused by physical conflicts. Then, consult a professional lawyer as soon as possible to evaluate the feasibility of converting the divorce into litigation and formulate an overall plan for property division and compensation claims.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

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

Disclaimer: This article is compiled based on the current effective laws and regulations and open 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 you encounter disputes, please consult a practicing lawyer in time.