—— Lawyer Qu Wei of Beijing Zhao Xiaolu Law Firm
First, how to divide the property after marriage
1. Houses donated by parents and registered in their children's names after marriage belong to their children's personal property.
situation
After Zhou Xiao got married for five years, his parents bought him a house with Zhou Xiao's name on the property certificate. So, does his wife Xiao Lu have a stake in this house?
Interpretation (3) Original text
Article 7 If the property right of the property purchased by one parent for their children after marriage is registered in the name of the investor's children, it can be considered as a gift to only one of their children according to the provisions of Item (3) of Article 18 of the Marriage Law, and the property should be considered as the personal property of one spouse.
If the property right of the house purchased by both parents is registered in the name of a child, the house can be regarded as shared by both parties according to their respective parents' share of capital contribution, unless otherwise agreed by the parties.
Lawyer's explanation
Previously, according to the Marriage Law and related explanations, during the marriage relationship, the property donated by parents to their children was regarded as the joint property of husband and wife, except that it was clearly determined in the gift contract that it belonged only to the husband or wife. However, in the case of soaring housing prices, parents often spend all their money to buy a house for their children, and generally do not sign a written agreement with their children, which is due to face. If the house is regarded as the joint property of husband and wife during divorce, it will inevitably violate the original intention and will of parents to buy a house for their children, and actually infringe on the interests of parents who have invested in buying a house. Therefore, it is more reasonable to regard the house purchased by parents as a gift to only one child.
If the property is purchased jointly by both parents, and the property right is registered under the name of one child, it is more in line with the actual situation according to the share of capital contribution of both parents. Linking the subject of property right registration with the party who clearly expresses the gift can make the judgment basis of parents' real intention of buying a house more objective, facilitate judicial determination and unify the discretion scale, and also help to balance the protection of the rights and interests of both parties to the marriage and their parents.
In this case, the house should be owned by Zhou Xiao personally.
2. Before the transfer, the gift can be revoked.
situation
Xiao Lu Yokota wrote a contract before she got married, promising to give her real estate to Oda, but she never went through the house transfer formalities. After the marriage, ODA was afraid of hurting her feelings and did not insist on handling the transfer procedures. I don't want to get divorced in a few years. Xiao Lu didn't agree to give Oda the house, but Oda asked him to fulfill the contract. So, is that prenuptial contract valid?
Interpretation (3) Original text
Article 6 Before marriage or during the marriage relationship, if the parties agree to give the property owned by one party to the other party, and the donor cancels the gift before the change registration of the donated property, and the other party requests an order to continue the performance, the people's court may handle it in accordance with the provisions of Article 186 of the Contract Law.
Article 186 of the Contract Law of People's Republic of China (PRC): The donor may revoke the gift before the right to donate the property is transferred. The provisions of the preceding paragraph shall not apply to gift contracts with the nature of social welfare and moral obligation such as disaster relief and poverty alleviation or notarized gift contracts.
Lawyer's explanation
A gift contract is a contract in which the donor gives his property to the donee free of charge and the donee expresses his acceptance of the gift. According to Article 186 of China's Contract Law, a general gift contract can be revoked before the transfer of property rights. For the house donation contract, if the house is not transferred to the recipient's name, the donor may revoke the gift. By extension, even if it is not a gift between husband and wife, its application principle is the same.
In this case, the house still belongs to Xiao Lu. Oda asked Xiao Lu to fulfill the gift contract and handle the lawsuit of house transfer, but the court refused to support it.
3. Housing reform is inseparable and belongs to parents.
situation
10 years ago, the public houses allocated by Tang Xiao's father's unit were restructured and sold. After deducting the service years at the cost price, the house price is 654.38+10,000 yuan. Tang Xiao and Xiao Deng took out a deposit of 654.38 million yuan and gave it to Tang Xiao's father. They bought this house from the unit, and the real estate license was registered in the name of Tang Xiao's father. Last year, Tang Xiao and Xiao Deng broke up and asked for a divorce. Xiao Deng claimed that the house payment was paid by their husband and wife, and the house should also be divided by husband and wife.
Interpretation (3) Original text
Article 12 During the marriage relationship, if both parties use the joint property of husband and wife to buy a house in the name of one parent, and the property right is registered in the name of one parent, if the other party advocates dividing the house according to the joint property of husband and wife at the time of divorce, the people's court will not support it. The capital contribution when buying a house can be treated as creditor's rights.
Lawyer's explanation
"Housing reform" refers to the housing sold to individuals by the unit welfare housing distribution reform according to the national housing reform policy, which is the historical product of the transition from planned economy to market economy. The selling price of the house is much lower than the market price of commercial housing, which is actually the welfare treatment given by the unit to the employees. According to the principle of real right acquisition, the real right of the house should belong to the purchaser, that is, the employee. If the actual investor is not an employee, then the relationship between the actual investor and the employee is only a creditor-debtor relationship. The actual investor can claim repayment, but not the property right of the house.
In this case, Xiao Deng can't claim that the house is divided as husband and wife's property, but she can claim that the purchase price is divided as the creditor's rights of both husband and wife.
4. The endowment insurance fund has not expired and cannot be divided.
situation
Xiao Jia and Luo Xiao have been married for 10 years. Because Xiaojia has never had a fixed work unit, they used the same savings to buy personal endowment insurance for Xiaojia. Now the two divorced because of emotional disharmony, and Ronaldinho proposed to split Xiao Jia's old-age insurance in court. But at this time, there are still two years before Xiao Jia retires to receive pension insurance. How should their pension insurance be divided?
Interpretation (3) Original text
Article 13 If one spouse has not retired at the time of divorce and does not meet the conditions for receiving pension insurance benefits, the people's court will not support the request of the other spouse to divide the pension insurance according to the common property of the husband and wife; After marriage, the husband and wife pay the old-age insurance premium with the same property. If one party claims that the part actually paid by the individual during the marriage relationship is divided into the old-age insurance account as the common property of the husband and wife, the people's court shall support it.
Lawyer's explanation
Interpretation of Marriage Law (II) stipulates that during the marriage, "the pension insurance money actually obtained or should be obtained by both men and women" belongs to the common property of both husband and wife. However, if one party has not reached the retirement age or does not meet the conditions for receiving old-age insurance, it is unfair for one party to claim that the old-age insurance money that the other party has not obtained or cannot obtain at all should be distributed as the "deserved" property of the husband and wife, and it will even weaken the state's basic social welfare guarantee for citizens. Article 13 of the Interpretation (III) has revised this and clarified this point.
In this case, the court did not support Ronaldinho's claim to divide Xiaojia's future pension insurance, but in Xiaojia's pension account, the actual payment amount can be used as the division of husband and wife's property.
Second, how to divide the property before marriage
1. Individuals who buy a house before marriage and repay their mortgage after marriage will receive appreciation compensation if their houses are registered at the time of divorce.
situation
At the beginning of 2006, Xiao Wang took out all his savings and bought a small apartment with the help of his parents. At the end of 2006, Xiao Wang and Xiao Li got married and moved to a new house. They share the monthly payment. 1 year later, Xiao Wang obtained the house ownership certificate. But now the two sides are getting divorced. Xiao Li advocates that the house was originally obtained after marriage, and both husband and wife should divide the property. Xiao Wang said that the house was his personal property before marriage, and now the house has doubled in value, which has nothing to do with Xiao Li.
Interpretation (3) Original text
Article 10: If the husband and wife sign a real estate sales contract before marriage, pay the down payment with personal property and borrow money from the bank, and repay the loan with the same property after marriage, and the real estate is registered in the name of the down payment payer, the real estate will be handled by both parties through agreement at the time of divorce.
If no agreement can be reached in accordance with the provisions of the preceding paragraph, the people's court may decide that the real estate belongs to the party with registered property rights, and the unpaid loan is the personal debt of the party with registered property rights. At the time of divorce, the party that handles the property right registration shall compensate the other party for the money paid by both parties for repayment of the loan and the corresponding value-added part of the property according to the principle stipulated in Article 39, paragraph 1 of the Marriage Law.
Article 39 of the Marriage Law of the People's Republic of China 1: At the time of divorce, the joint property of husband and wife shall be handled by mutual agreement; If the agreement fails, the people's court shall make a judgment based on the specific circumstances of the property and the principle of taking care of the rights and interests of the children and the woman.
Lawyer's explanation
As we all know, property acquired before marriage belongs to individuals, and property acquired during marriage generally belongs to both husband and wife. However, for the house purchased by one party through mortgage before marriage, it is not possible to judge whether it is the same property of husband and wife by the time of obtaining the real estate license mechanically. Because the money for buying a house is the personal property of one party before marriage, and the developer has paid all the money for the house purchase, the creditor's rights confirmed in the house purchase contract are all obtained before marriage, and obtaining the real estate license after marriage is only a natural transformation of property rights. Therefore, as long as the house purchase and sale takes place before marriage, and the sales contract has actually been fulfilled, and the house is registered in the buyer's personal name, it should be regarded as personal property before marriage.
For both husband and wife, the repayment amount and the value-added of the house should be combined with the corresponding value-added part of the house, and the owner of the house should compensate the other party accordingly.
In this case, the house should be owned by Xiao Wang, but according to the proportion of the amount repaid by both husband and wife to the total purchase price and the corresponding appreciation of the house, Xiao Wang should compensate Xiao Li accordingly according to the principle of protecting the rights and interests of the woman.
2. The fruits and natural appreciation of personal property before marriage do not belong to the common property of husband and wife.
situation
Xiao Zhao bought 500 grams of gold before she got married. After Xiao Zhao and Xiao Liu got married for several years, the price of these gold has more than tripled. Does Xiao Liu have a piece of the appreciation of gold in recent years?
Interpretation (3) Original text
Article 5 The income from the personal property of one spouse after marriage shall be regarded as the common property of the husband and wife, except fruits and natural appreciation.
Lawyer's explanation
The Marriage Law stipulates that the income from production, operation and intellectual property rights during the marriage relationship shall be owned by both husband and wife. Interpretation of Marriage Law (II) also stipulates that during the marriage relationship, "one party's personal property investment income is the joint property of husband and wife". However, in judicial practice, there are often disputes about how to deal with the benefits such as value-added (such as gold, rising house prices) or fruits (such as deposit interest) generated by premarital property itself.
Article 5 of Interpretation 3 explains the basic principle of civil law that fruits belong to property owners, and at the same time avoids the dispute whether property income belongs to investment income in practice. That is, in the future, it doesn't matter whether a spouse's personal property before marriage is "investment" or "personal use" or both. The income of this property during the marriage, except fruits and natural appreciation, belongs to the joint property of husband and wife.
In this case, the gold purchased by Xiao Zhao before marriage will increase in value after marriage, but the value-added part still belongs to Xiao Zhao's personal property.
Third, how to solve the problem of parent-child and reproductive rights?
1. If paternity test is refused, the court can infer whether there is paternity based on the necessary evidence.
situation
Xiao Lu accidentally discovered that his wife Xiao Liao and her ex-boyfriend were still having an improper relationship, and that her 5-year-old child was very similar to her ex-boyfriend, so she suspected that the child was not her own. Therefore, Lu Xiao sued for divorce on the grounds that his wife was unfaithful to him, and demanded paternity test and compensation for mental damage. However, his wife Xiao Liao refused to do the paternity test on the grounds that the child was sensible and would hurt him. Who will the court's decision support?
Interpretation (3) Original text
Article 2: If one of the husband and wife sues and requests the people's court to confirm that there is no paternity, and provides necessary evidence to prove it, and the other party refuses to do paternity test without evidence to the contrary, the people's court may presume that the party requesting confirmation of the absence of paternity claims to be established.
If one party brings a lawsuit to confirm paternity and provides necessary evidence to prove it, and the other party refuses to do paternity test without evidence to the contrary, the people's court may presume that the claim of the party requesting paternity test is established.
Lawyer's explanation
Parent-child relationship litigation belongs to status relationship litigation, which mainly includes the litigation of denying legitimate children and advocating illegitimate children. That is, denying the legal paternity or acknowledging the de facto paternity. With the development of modern biomedical technology, DNA identification technology is widely used to prove the blood relationship between children and parents, especially fathers.
According to the provisions of the Civil Procedure Law on evidence: there is evidence that one party refuses to provide evidence without justifiable reasons. If the other party claims that the content of the evidence is not conducive to the evidence holder, it can be presumed that the claim is established. However, in the practice of civil judicial trial, the court has no right to force the parties to do DNA judicial expertise. If there is no clear legal provisions on the identification of this important identity relationship between parents and children, there is great risk in applying the "presumption principle". Article 2 of Interpretation (III) clearly stipulates the difficult problems in judicial practice, that is, when dealing with disputes about paternity, if the evidence provided by one party can form a reasonable chain of evidence to prove that paternity may or may not exist between the parties, and the other party has no evidence to the contrary and resolutely refuses to do paternity test, the people's court may determine that the claim of the party who requests to deny paternity test or the party who requests to confirm paternity test is established, and the party who does not cooperate with the court will bear the law of losing the case.
In this case, if Xiao Lu provided the necessary evidence to prove that the child was not born to him, and Xiao Liao refused to cooperate with the paternity test, the court could directly rule that Xiao Liao lost the case.
2. Couples can sue for divorce because of disputes over reproductive rights, but they cannot claim damages.
situation
Xiao Qi, who was pregnant for 5 months, and her husband Xiao Bi had a fierce quarrel. On impulse, she went to the hospital alone to have an abortion.
Xiao Bi was very angry when she learned that Xiao Qi had terminated her pregnancy without authorization and violated her reproductive rights, so she sued for divorce and demanded compensation for the losses. Will the court decide to support Xiao Bi?
Interpretation (3) Original text
Article 9 If a husband claims damages on the grounds that his wife's unauthorized termination of pregnancy violates her reproductive rights, the people's court will not support it; If a dispute between husband and wife over whether to have children leads to emotional breakdown, and one party requests a divorce, and mediation fails, the people's court shall handle it in accordance with the provisions of Item (5) of Paragraph 3 of Article 32 of the Marriage Law.
Paragraph 3 of Article 32 of the Marriage Law of the People's Republic of China: If mediation fails under any of the following circumstances, divorce shall be granted: (1) bigamy or cohabitation of a spouse with others; (2) committing domestic violence or abusing or abandoning family members; (three) gambling, drug abuse and other bad habits; (four) separated for two years due to emotional discord; (5) Other circumstances that lead to the breakdown of the marriage relationship.
Lawyer's explanation
Both husband and wife have the right to bear children, that is, either party can advocate bearing or not bearing children. Especially for the woman, whether to have children may directly affect her health. Therefore, if the husband and wife can't reach an agreement on this issue, it may lead to emotional breakdown. One party can file for divorce on this basis. However, if the husband terminates the pregnancy with his wife without authorization and demands compensation for mental damage, there is no legal basis and the court will not support it.
Fourth, how to solve other common problems.
1. The divorce agreement failed, and the "agreement" was invalid.
situation
Xiao Liu filed for divorce because of disagreement with Xiao Yang, but Xiao Yang disagreed. In order to get Xiao Yang to agree to divorce, Xiao Liu stated in the divorce agreement that as long as Xiao Yang agreed to divorce, the real estate and bank deposits bought by the husband and wife were left to Xiao Yang, and Xiao Liu "went out clean". Xiao Yang agreed, and both parties signed the agreement. However, when they took the divorce agreement to the Civil Affairs Bureau for divorce procedures, Xiao Yang repented and said that he would never divorce. Xiao Liu had to appeal to the court for divorce and fair division of property. Xiao Yang believes that even if the court decides to divorce, the division of property should be carried out in accordance with the divorce agreement. So, is this divorce agreement valid?
Interpretation (3) Original text
Article 14 If the divorce agreement reached by the parties is conditionally registered for divorce, or the divorce agreement is invalid in the people's court, and one party reneges in the divorce proceedings, the people's court shall consider that the property division agreement has not taken effect and divide the husband and wife's property according to the actual situation.
Lawyer's explanation
In practice, when signing the divorce agreement, the party who advocates divorce may make some concessions in property division, child support, debt commitment and so on, with a view to a smooth divorce. However, due to various factors, both parties failed to handle the divorce formalities as agreed, and the effectiveness of the divorce agreement reached by both parties in advance often became the focus of controversy in divorce cases.
The issue of divorce is of great importance, and the parties should be reconsidered and negotiated repeatedly. Only when the two parties finally reach an agreement and register for divorce in the civil affairs department or voluntarily go to the court for divorce procedures can they be regarded as conditionally established. If the divorce agreement between the two parties fails, one party has the right to go back on his word, and the divorce agreement reached in advance has no effect and is not legally binding on both husband and wife, and cannot be used as the basis for the people's court to handle divorce cases.
In this case, because Xiao Yang did not go through the divorce registration formalities according to the requirements of the divorce agreement, the divorce agreement did not take effect. The court can't divide the property according to this agreement, but should divide the property owned by husband and wife according to the marriage law.
The overflow water from the sold house can't be recovered.
situation
Xiao Wu and Xiao Xia have two houses, both registered in Xiao Wu's name. Xiao Wu needs funds to do business, so he sells a house with a good location at home to Mr. Zhang through a housing agent. Afterwards, Xiao Wu lost a lot of money in business. After knowing that the house was sold, his wife Xiao Xia thought that the house was the same property of both parties, and the house sales contract without their consent was invalid, so she took her husband and the buyer to court and demanded that the house sales contract be invalid, and Mr. Zhang returned the house. Can Xiao Xia's request be supported?
Interpretation (3) Original text
Article 11: If one party sells the house jointly owned by husband and wife without the consent of the other party, the third party buys it in good faith, pays a reasonable consideration and goes through the formalities of property right registration, and the other party claims to take back the house, the people's court will not support it. If one spouse arbitrarily disposes of the house jointly owned by * * * and * *, causing losses to the other spouse, and the other spouse requests compensation for the losses during the divorce, the people's court shall support it.
Lawyer's explanation
The sale and mortgage of houses jointly owned by husband and wife shall be decided by both husband and wife. However, according to the "bona fide acquisition system" in the Property Law, if the house is registered in the name of one of the spouses, the house registration party will sign a sales contract with a third party, and if the bona fide third party pays a reasonable purchase price and transfers the house title certificate to its own name, it will acquire the ownership of the house. If the other spouse claims to recover the ownership of the house, the court will not support it, but if the other spouse claims that the original house registration party disposes of the house without authorization during the divorce, resulting in the loss of his own property, the court will support it.
In this case, Xiao Xia's claim to return the house was not supported by the court, but if Xiao Xia divorced Xiao Wu, he could ask Xiao Wu to compensate for the economic losses caused by the price increase of his house.
3. Marriage exists, and there are also special cases of property division.
situation
Xiaoyan and Xiao Tao got married 10 years later, Xiao Tao got stomach cancer and spent a lot of money on surgery. The doctor said that imported chemotherapy drugs must be used after the operation to stop the spread of cancer cells, which is very expensive. Xiaoyan thinks that cancer can't be cured, and it's useless to spend huge sums of money on imported drugs, so she advocates conservative treatment. In desperation, Xiao Tao took Xiaoyan to court and asked the husband and wife to have property to treat the disease. But for many years, Momo didn't want to divorce Xiao Yan emotionally. In this case, will the court accept Xiao Tao's property division case?
Interpretation (3) Original text
Article 4 During the marriage relationship, if one of the spouses requests to divide the same property, the people's court will not support it except for the following major reasons that do not harm the interests of the creditors:
(1) One party conceals, transfers, sells, damages or squanders marital property or forges marital debts, which seriously damages the interests of marital property;
(2) The person with legal obligation to support suffers from serious illness and needs medical treatment, but the other party does not agree to pay the relevant medical expenses.
Lawyer's explanation
Under normal circumstances, during the marriage, both husband and wife have the right to control the property and do not need to divide it. Even if they are divided, the husband and wife still have the same property, just like a person's money is put in his left pocket. However, when one party suffers from a serious illness, the other party refuses to pay the medical expenses, or one party hides, transfers, sells, damages or squanders the husband and wife's property, or even forges the husband and wife's debts, which seriously damages the husband and wife's property interests, one party can support the divorce out of proper protection of the right to life and health and the husband and wife's property interests without infringing on the interests of other creditors.
In this case, Xiao Tao's situation is just in line with the situation stipulated in Article 4 of Interpretation III. As long as the division of property does not harm the interests of husband and wife creditors, Xiao Tao's claim can be supported.