1. The husband and wife agree in writing who owns the property, or in oral form. If there is no dispute between the two parties, the divorce shall be handled according to the agreement. But the agreement to circumvent the law is invalid.
2. The property acquired by husband and wife during the marriage relationship is the common property of husband and wife, including:
(1) Income from the purchase of labor services and property by one or both parties
(2) Property inherited and donated by one or both parties (except for the property that is determined to belong exclusively to the husband or wife in the will or gift contract);
(3) the economic benefits obtained by one or both parties from intellectual property rights.
(four) income from production and business activities such as contracting and leasing by one party or both parties;
(5) Creditor's rights obtained by one party or both parties.
(6) Other lawful income of one party or both parties.
3. The judicial interpretation of the Supreme People's Court Marriage Law stipulates that military casualty insurance, disability allowance and medical living allowance belong to personal property. Involving one-time expenses such as demobilization fees and self-employment fees paid to military personnel, the duration of the marital relationship between husband and wife is multiplied by the annual average, and the amount obtained is the joint property of husband and wife. The so-called average refers to the amount obtained by dividing the total amount of the above-mentioned expenses paid to military personnel according to specific years. Its specific life span is the difference between the average life span of 70 years and the actual age of soldiers when they join the army.
4. If the property acquired after marriage is managed and used by husband and wife in two places respectively, it shall be recognized as the joint property of husband and wife. When dividing property, the property managed and used separately belongs to each other. If the property divided by both parties is very different, the party with more property shall compensate the other party with property equivalent to the difference. (Author's Note: I think this provision is unfair. For example, if one party's property is 5 and the other party's property is 3, the difference should be 2, and one party of property 5 gives it to the other party 2, and the party with less property becomes 5 and the party with more property becomes 3, which is unfair. This is a mistake made by legislators, but it is reasonable and illegal.
5, registered marriage, not yet * * * cohabitation life, one or both parties gift, gift should be considered as husband and wife * * * with the property, the specific treatment should consider the reasonable division of property sources, quantity, etc. In principle, the property purchased and used by each party belongs to each party.
6. (the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China < 1 > stipulates that the property owned by one spouse shall not be converted into the joint property of the husband and wife due to the continuation of the marriage relationship. This article conflicts with this interpretation, so it is no longer applicable)
7. If personal property or joint property of husband and wife is difficult to determine, the party claiming rights has the burden of proof. If the parties fail to produce strong evidence and the people's court cannot verify it, it shall be treated as the joint property of the husband and wife.
8, husband and wife * * * with property, in principle, equally. According to the actual needs of production and life and the source of property, the specific treatment methods can also be different. Articles belonging to individuals are generally owned by individuals.
9. If one party manages in partnership with others with the same property of husband and wife, the property it occupies may be distributed to one party, and the party sharing the property shall compensate the other party for half of the value of the property. (The legislator obviously considered the problem of 5-2 = 3 here. )
10. The means of production, which belong to the joint property of husband and wife, can be distributed to the party with operating conditions and ability. The party sharing the means of production shall compensate the other party for half of the property value.
1 1. At the time of divorce, if the breeding industry operated by both husband and wife in that year has no income, it should be reasonably divided or discounted in order to develop production and operation.
12. After marriage, both parties repaired, renovated and demolished the house owned by one party before marriage. If the property right has not changed at the time of divorce, the house still belongs to the property owner, and the value-added part belongs to the other party, and the owner of the house compensates the other party at a discount; The expanded and expanded houses are regarded as the property of husband and wife.
13. Houses shared by husband and wife that are not suitable for split use should be allocated to one party according to the housing situation of both parties and the principle of taking care of the parent who raised the children or the innocent party. The party who gets the house should compensate the other party for half the value of the house. On the condition that both parties are equal, the woman should be taken care of.
14. The house that one party lived in during the marriage belongs to, and after the divorce, the other party asked for temporary residence on the grounds that there was no room to live. After investigation, it can be supported according to the situation, but generally not more than two years. If it is really difficult for a party without a house to rent a house, the party enjoying the property right can give a one-time financial help. (The term "one party's life is difficult" mentioned in Article 42 of the Marriage Law refers to the inability to maintain the local basic living standard by relying on personal property and property distributed during divorce. If one party has no place to live after divorce, it is difficult to live. When divorcing, one party can use the house in his personal property to help people who have difficulties in life, which can be the right of residence or the ownership of the house. )
15. Income from intellectual property rights refers to the property income actually obtained or clearly obtainable during the marriage relationship, which belongs to the joint property of husband and wife.
16. Personal property before marriage is naturally damaged, consumed or lost in married life. If one party claims compensation with the joint property of husband and wife during divorce, it will not be supported.
17. The debts incurred by husband and wife due to * * * living together or performing the obligation of raising and supporting shall be recognized as * * * debts of husband and wife, and shall be paid off with * * * property of husband and wife at the time of divorce. The following debts cannot be regarded as the same debt of husband and wife, and should be paid off by one party with personal property:
(1) Debts agreed by husband and wife to be borne by individuals, except for the purpose of avoiding debts.
(2) without the consent of the other party, one party subsidizes the debts incurred by its relatives and friends who have no obligation to support.
(3) Without the consent of the other party, one party independently raises funds to engage in business activities, and its income is not used for debts incurred by the same generation.
(4) Other debts that should be borne by individuals.
18. If the property right is acquired before marriage, according to the spirit of the Supreme People's Court's judicial interpretation, it should belong to personal property, and the debt arising from the loan to buy a house should be regarded as personal debt; If the property right is acquired after marriage, it should belong to the joint property of husband and wife, and the debt arising from the loan to buy a house should be regarded as the joint debt of husband and wife.
19. The people's court shall support the request of the parties to return the bride price paid according to the custom if it is found that it belongs to the following circumstances:
(1) Both parties have not gone through the marriage registration formalities;
(2) Both parties have gone through the marriage registration formalities, but they have not lived together;
(3) premarital payment, causing difficulties to the payer.
The application of items (2) and (3) of the preceding paragraph is conditional on the divorce of both parties. If it is difficult to determine whether the property obtained is a request or a gift, it can be treated as a gift.
20. At the time of divorce, if the same property of husband and wife is not divided with the same property of family, if one party requests to analyze the property, it can first deal with the divorce and the property that has been identified, and can inform the parties to deal with the property division that is really difficult to identify at the moment; Or suspend the divorce proceedings and resume the divorce proceedings after the divorce case is concluded.
2 1. If one party illegally hides or transfers the marital property, refuses to hand it over or illegally sells or damages it, when dividing the property, the party who hides, transfers, sells or damages the property will be given little or no share. When dealing with it specifically, the property that is hidden, transferred, sold or destroyed shall be regarded as the share of the property that should be shared by the party that hides, transfers, sells or destroys the property, and the share that should be shared by the other party shall be offset by the same property of other couples. If the balance is insufficient, the party that conceals, transfers, sells or damages the property shall compensate the other party at a discount. The people's court may deal with the party who illegally conceals, transfers, sells or damages the joint property of husband and wife in accordance with the provisions of Article 102 of the Civil Procedure Law of People's Republic of China (PRC).
22. In the case of de facto marriage, this opinion should be applied to the division of property. Belong to illegal cohabitation, property division according to the relevant provisions of the Supreme People's Court "on the people's court hearing cases of cohabitation in the name of husband and wife without marriage registration".
In principle, it should be evenly distributed, and the innocent party should be properly taken care of. The other party can claim damages for four situations stipulated in the Marriage Law (bigamy, cohabitation with others, abuse or abandonment, and domestic violence). Judging from the current actual situation in China, when the parties go to the civil affairs department for divorce, the civil affairs department generally requires both men and women who have reached a divorce agreement to reach a consensus on property division, child support and other issues and form written materials before they can handle divorce procedures for them. In real life, the following situations often occur: after divorce by agreement, the parties have no objection to the dissolution of the marriage relationship itself, but they repent of the issue of property division and file a lawsuit in the people's court, demanding that the property division agreement be changed or revoked. We believe that the agreement reached by the two sides in the civil affairs department on the division of divorce property is the result of consensus reached by both sides on the premise of equality and voluntariness. For any party, this is a free punishment of their property rights, and the agreement is legally binding on both parties, and both parties should accept the legal consequences brought by this decision. In case of disputes between the parties due to this agreement with the nature of civil contract, the general principles of civil law and the basic principles and relevant provisions of contract law shall apply. If there are special circumstances such as fraud and coercion stipulated by law, the people's court shall support it according to law if the parties request to change or cancel it. However, after all, marriage relationship also includes identity relationship, and the resulting disputes are bound to have their own characteristics. Therefore, when dealing with such disputes, we can't ignore the identity relationship and simply apply other legal provisions. Under the guidance of this idea, this interpretation has made some specific provisions. For example, in the case that the people's court should support the parties to change or terminate the property division agreement, there is no provision for obvious unfairness and major misunderstanding in the clearly listed matters, which is designed based on this consideration. Of course, we do not completely exclude the application of these unspecified matters, but only think that the application of these aspects must be strictly restricted. If these provisions really apply to a case, the judge can handle it according to Article 9 of Interpretation (II), because there are flexible clauses in this article, and the judge can exercise his discretion according to the specific case and make a fair judgment according to law. According to the current regulations, we protect the litigant's right to appeal, that is, if the litigant brings such a lawsuit to the people's court within one year after divorce, the people's court shall accept it according to law. However, whether the parties have the substantive right to win depends on whether the parties can prove fraud and coercion when concluding the agreement. Otherwise, the people's court shall reject its claim. In addition, in the process of performing such agreements, the people's court shall also accept the lawsuit brought by the other party for breach of contract. ?
Is it difficult for husband and wife to divide property?
Q: What are the new changes in the trial of marriage and family disputes by people's courts compared with the past, and what are the specific provisions in Interpretation II? ?
A: With the development and change of social life, the present family property is different from the past in terms of scope, composition and quantity. The composition of property shows a diversified trend, the number of property has increased significantly, and the proportion of investment and business property in family property has been increasing. A considerable number of family properties, in addition to savings deposits and houses in the traditional sense, also include capital contributions or shares in some enterprises. Because it may involve the rights and interests of other interested parties other than husband and wife, there are many problems encountered in trial practice. Interpretation (II) makes specific provisions on the identification of the following property forms: how to determine housing subsidies, housing accumulation funds, pension insurance funds, etc.; Whether the property income in intellectual property belongs to personal property or husband and wife property, when is the standard for judging the acquisition; How to divide the contribution of the same property between husband and wife in limited liability companies, partnerships and other organizations; How to calculate the price of disputed houses and how to determine the ownership.