During the divorce process, divorce witnesses and testimonials play a key role. They are not only a necessary part of the legal procedure but also an important guarantee to ensure the divorce process is fair and transparent. The presence of divorce witnesses ensures the real intentions and decisions of both parties involved in the divorce. According to the Civil Code, a divorce agreement must be signed by at least two witnesses to prove that the agreement is voluntary and free from undue external pressure or inducement. This requirement helps prevent fraud and coercion, ensuring the legality and fairness of the divorce process.

On the other hand, divorce witnessing is also a public acknowledgment of the divorce process. Should any issues arise after divorce, such as one party having second thoughts, inevitable family matters will have to be dealt with in court, especially when it involves complex issues like property division and child custody. Divorce witnessing can provide additional legal force to the divorce process, making the divorce agreement more solid and less likely to be questioned. Through the testimony of witnesses, courts can better understand the process of concluding a divorce agreement, thereby making a fair judgment.
 

Functions and Requirements of Divorce Witnesses

According to Article 1050 of the Civil Code，, a mutual agreement to divorce must be in writing, signed by more than two witnesses, and registered with the household registration office.
The primary role of a divorce witness is to confirm that the signing process of the divorce agreement is voluntary, and both parties fully understand and agree to all terms in the agreement. Their presence helps prevent fraudulent acts, confirm whether both parties are genuinely willing to divorce, and ensure the fair execution of the agreement. Moreover, divorce witnesses are responsible for ensuring that both parties have full legal capacity when signing the agreement, free from any mental or emotional pressure, which is crucial for preventing forced divorces and protecting the rights of the parties involved.

Conditions for Divorce Witnesses

Choosing the right divorce witnesses is crucial for ensuring the validity and legality of the divorce agreement. Here are some conditions for appropriate divorce witnesses:

1. Full capacity to act: Divorce witnesses must have full capacity to act, ensuring they have enough maturity and judgment to understand and witness the signing process of the divorce agreement. Since the amendment of the Civil Code in 2023, anyone over the age of 18 is considered an adult, capable of legal actions and bearing legal rights and obligations.
2. Neutrality: The law does not explicitly specify the qualifications for divorce witnesses. It's possible to choose friends or relatives as witnesses, but ideally, divorce witnesses should be neutral third parties, not biased towards any side, and able to impartially witness the signing process of the divorce agreement. In practice, to ensure the legitimacy of the divorce process and avoid subsequent disputes, it is recommended to have a divorce professional lawyer directly witness the process for better security.
3. Must be present or have personally heard the mutual intention to divorce: This requirement is particularly important. According to the Supreme Court's decision in 1979, No. 3792, 'The so-called signature of more than two witnesses does not have to be made at the time of creating the divorce certificate, nor does it have to be made by people present at the agreement of divorce. However, it is hard to say that those who have not personally seen or heard the mutual intention of the parties to divorce can also be witnesses.' In short, divorce witnesses must personally see or hear the mutual intention to divorce from both parties, and both parties along with the witnesses must be present at the same time; otherwise, the divorce may be invalid.

Practical Sharing on Divorce Witnessing

Case Background

Our client, Miss A, and Mr. B intended to divorce. Due to various reasons, they did not want their friends or family to know, so Mr. B searched online and purchased 'witnessing services' from individuals they did not know beforehand, Little De and Little Yi. A few days after the divorce procedure was completed, Miss A regretted and did not want to divorce and, after deliberation, thought there were legal concerns with the procedure. She then filed a lawsuit to confirm the invalidity of the divorce.

Our Practical Experience

After research, we found that witnesses Little De and Little Yi, at the time of witnessing the signature, Miss A had not yet signed the divorce agreement, and she was not present. Originally, neither Little De nor Little Yi knew Miss A or Mr. B, nor had they confirmed the intentions and understanding of both parties. The two witnesses clearly did not confirm the mutual intention to divorce from both parties. Therefore, the mutual agreement to divorce did not meet the specifications of the Civil Code, even though registration at the household affairs office was completed, the mutual agreement to divorce was not effective. The court later ruled the divorce invalid.

In facing the significant life transition of divorce, choosing the right divorce witnesses is a key factor in ensuring the process goes smoothly and legally. However, finding divorce witnesses that meet all qualification requirements is not always easy. In such cases, seeking help from professionals is not only a viable option but also a wise choice to ensure the divorce agreement is properly handled and future legal disputes are avoided. Our lawyers handle such cases by acting as a bridge for communication between both parties, helping them draft the divorce agreement, conducting lawyer witnessing, and handling subsequent registration procedures to ensure the legality of the divorce agreement process. Therefore, it is advised for friends who have a mutual understanding of divorce not to seek out divorce processing agencies of unknown origin online, as these types of agencies may not be familiar with the relevant procedures and laws, which could potentially lead to an invalid divorce.

Common Questions About Divorce Witnesses

Q1：Do divorce witnesses have to be lawyers?

To reiterate, the law does not stipulate that divorce witnessing must require a lawyer's qualification or be a notary, etc. Friends and relatives of each party can act as witnesses. However, a lawyer's witness can ensure the sincerity and neutrality of the divorce, making it less likely for disputes, such as questioning the validity of the marriage, to arise later.

Q2: Do divorce witnesses need to be present at the household registration office for divorce registration?

No, they do not! During the divorce witnessing, according to legal requirements, both spouses and the two witnesses must be present simultaneously to confirm the mutual intention to divorce and sign. Subsequently, only the spouses need to go to the household registration office to handle the registration, and the witnesses do not need to accompany them.

Reference：Civil Code - Family、Supreme Court Decision No. 3792 of the 68th year

>Consult Now

[Continue reading：Divorce | The agreement and procedures for a consensual divorce]