Decision of the Plenum of the Supreme Court No. 5 dated 22 June 2000 on Judicial Practice on Application of the Legislation when Considering Cases on the Termination of a Marriage

The Plenum of the Supreme Court held that divorce based on the claim of one spouse may be granted by the courts if “the preservation of the family has become impossible.” The passing of the three-month reconciliation period and the claim by one spouse is not enough for such a determination, rather, the courts must comprehensively analyze the relationship between the spouses, the motives for the claim for divorce, and the reasons for discord between the spouses with the participation of both spouses. The Plenum further held that if a court determines that there is evidence of the possibility of preserving the family, such as underage children, the duration of the marriage, the Court may, based on the request of one or both spouses, or on its own initiative, postpone the granting of the divorce and grant an additional six-months reconciliation period. The Plenum also determined that because divorce is not allowed during pregnancy and before the child reaches three years of age, unless the other spouse consents or certain other circumstances are established according to the Marriage and Family Code Art. 35, the husband is not permitted to bring a claim for divorce during this time. The Plenum further held that the common joint property of the spouses subject to division at the termination of a marriage is any movable and immovable property that can be the object of a person’s property rights acquired during the marriage. If it is established that one of the spouses alienated the common joint property against the will of the other spouse or contrary to the interest of the family, or hid property, such property or the value of it shall be taken into account at the division of property. If the spouses stopped running a common household before the division of property, only the property acquired during the existence of a common household shall be the joint common property subject to division. Property that was acquired during marriage through the personal funds of one of the spouses, property which belonged to one of the spouses before marriage, property acquired during marriage by gift or inheritance, or items “for individual use,” such as clothing, with the exception of jewelry and other luxury items, shall not be considered common joint property.