A China woman and a foreign man got a marriage certificate in China in June 2004, but they didn't have a wedding and didn't live together. Later, the foreign man sued for divorce in China. In the course of the lawsuit, the woman first expressed her disagreement with the divorce, and at the same time proposed that since they had obtained the marriage certificate, they were legally married. If the people's court decides to divorce, it shall divide the property of both husband and wife. The property that the woman thinks should be divided into two parts: one part is the same income of both husband and wife from the date of marriage registration (more men than women); One is the property purchased by the man after marriage registration.
crosslight
During the trial of the case, there are two different opinions on the division of property.
One view is that the marriage registration date is the starting point of the relationship between husband and wife, and the income and property purchased by the husband and wife after registration can be regarded as the property of husband and wife. Therefore, the above property should be divided when divorcing.
Another view is that although they have registered marriage, they have no real marriage life, so their registered income or the property purchased by one party should not be divided as husband and wife's property.
Jurisprudential analysis
Opinions on the division of property in this case should clarify the following issues:
The validity of the marriage. In this case, although both men and women have a China nationality and a foreign nationality, they have obtained marriage certificates from the civil affairs department in accordance with the requirements of China's marriage registration regulations. According to the provisions of China's marriage law, whether a man and a woman hold a wedding ceremony and whether the husband and wife live together after marriage does not affect the validity of the marriage itself. From the date when both parties register to get a marriage certificate, they become husband and wife in the legal sense of our country. From now on, the personal relationship, property relationship and kinship relationship between husband and wife should be adjusted according to China's marriage law.
The focus of this divorce dispute is the division of marital property when both parties divorce. According to the first paragraph of Article 17 of China's Marriage Law, "the following property acquired by husband and wife during the marriage relationship shall be owned by husband and wife: (1) wages and bonuses; (II) Income from production and operation ... "Therefore, in this case, the income of the woman and the man after marriage, in whatever form, should be listed as the joint property of husband and wife.
After the marriage registration, whether a property purchased by the man belongs to the joint property of husband and wife should be analyzed in detail:
If the purchase price of this property is purchased by the man with his personal savings before marriage, according to the relevant provisions of the Marriage Law, this property is obtained from the man's personal savings before marriage and should not be divided into the joint property of husband and wife.
Another possibility is that the man bought it with his personal income after marriage, so according to the legal property system of the aforementioned marriage law, this property should belong to both husband and wife and participate in the division of property when divorced.
Another possibility is that the man and the woman got married in June 2004, and a divorce dispute occurred shortly after the marriage. The investment in buying real estate may come partly from his personal savings before marriage and partly from his personal income savings after marriage. Based on a comprehensive analysis of the provisions of Articles 17 and 18 of China's Marriage Law, this property should be divided into the joint property of husband and wife, but the part of the husband's personal savings before marriage should be compensated.
Therefore, from the above analysis, we can know that under normal circumstances, if the property division opinion of this foreign-related marriage case is judged as substantive law according to China's marriage law, the first opinion is more inclined in the debate.
However, from the legal point of view, whether in civil law countries or common law countries, the common criterion of property system design in marriage law is that the agreed property system is the main one, supplemented by the legal property system. The law gives both husband and wife full management and disposal rights to the property before and after marriage, and the legal property system will only be applied if the husband and wife have no self-agreement.
As this case is under the jurisdiction of our country, the marriage law of the same property system in our country is applicable. The basic idea of implementing the property system in national legislation is that the marriage between husband and wife is like the creation of a family property fund. Husband and wife may have different division of labor and different incomes, but their services have contributed to the family to varying degrees. After marriage, both husband and wife have the obligation to take care of and support each other. Marriage is sometimes the same as economy. The law encourages people to love their families, actively serve them, maintain and build their families, and make them more confident and enthusiastic about marriage. From this perspective, it is not difficult to understand the trial thinking of this case according to China's marriage law. Although men and women are not living together, they are married. The content of marriage does not require cohabitation between husband and wife, and cohabitation is not necessarily related to the division of property between husband and wife. Since marriage should be regarded as the same body of husband and wife's economy, no matter which side's income is high or low, it should be regarded as dedication to the whole family, rather than emphasizing each other's economic independence.
This case has also caused people to think about another problem, that is, the design of separation system in China's marriage law is still blank, and lawyers often encounter property division disputes caused by separation in the process of handling cases. Therefore, the design and construction of separation system need to be further supplemented and improved.