First, the significance of the bride price
? Bridal gifts, also known as betrothal gifts, betrothal gifts, engagement, etc. Specifically, it refers to the property that one party pays to the other party through a middleman (matchmaker) or a method recognized by both parties at the request of the other party based on the engagement, including not only a certain amount of money, but also various items, such as cash, gold and silver jewelry, cars, houses, heirlooms, etc.
Note: 1. In love, the property that one party gives to the other party to cultivate feelings is not a bride price, such as clothes, small red envelopes and small jewelry.
2. The expenses incurred by one party in concluding a marriage with the other party are not bride price, such as wedding banquets and banquets.
3. Arranged marriage and property acquired through marriage are not bride price.
Second, the legal nature of the bride price
(1) The legal nature of the bride price: it is a special gift with conditions and has a strong personal attribute.
(2) Additional conditions for bride price: for the purpose of concluding marriage, to be precise, for the purpose of registering marriage and living together.
(3) The legal effect of the bride price: 1. If both men and women are registered to get married and live together, the gift shall be valid.
2. If both men and women are not registered for marriage or cohabitation, the donor may ask the other party to return the bride price on the grounds that the purpose has not been achieved.
Three, you can request the return of the bride price in four situations, the scope of return, and the basis for return.
(1) Both men and women have not gone through the formalities of marriage registration, nor have they lived together.
Return range: 1. You can ask for the return of all the bride price.
? 2. If the party paying the bride price is at fault, only part of the bride price can be returned.
Return basis: According to Article 8 of China's current Marriage Law, if a man and a woman want to get married, they must register their marriage in person at the marriage registration office and get a marriage certificate before they can establish the relationship between husband and wife. It can be seen that marriage in China is based on registration, and unregistered marriage relationship is not established. At this time, the party who paid the bride price did not achieve the purpose of marriage, and the two sides did not live together, so the bride price paid for marriage should be refunded.
1, Article 10 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II) stipulates that if a party requests to return the bride price paid according to the custom, the people's court shall support it if it is found that it belongs to one of the following circumstances: (1) Both parties have not gone through the marriage registration formalities.
2. Article 7 of "Several Opinions of Dingxi Intermediate People's Court on Returning the Bridal Gift in the Trial of Marriage and Family Cases (Trial)" stipulates that if both parties have not gone through the marriage registration formalities and have not lived together, the Bridal Gift will be returned in full; But if the bride price is paid, the bride price will not exceed 80%.
(2) Both men and women live together without going through the marriage registration formalities.
Scope of return: The court may return part of the bride price at its discretion, and the specific amount of return shall be determined according to the living time, birth situation, reasons for non-registration, bride price amount, bride price use, bride price return situation and local customs and habits of both parties.
Basis for return: Although both parties are not registered to get married, the bride price for the entry into force of the marriage has not been met, and the bride price should have been returned in full. However, due to the de facto marriage relationship between the two parties, some conditions of bride price gift have actually been fulfilled, and according to the principle of fairness, some bride price needs to be returned.
1, 20 1 1 Article 50 of the Minutes of the National Civil Trial Work Conference stipulates: "In a property dispute case arising from engagement, the parties request the return of the bride price paid on the condition of marriage. Unmarried men and women do live together but have not registered for marriage, the people's court may, according to the time of living together, the amount of bride price and the local rural conditions.
2. Article 4 of the Shanghai Higher People's Court's Answers to Several Questions about Judicial Interpretation of the Supreme People's Court Marriage Law (II) stipulates that after the bride price is paid, both men and women only form a cohabitation relationship. Therefore, if the parents or relatives who pay the bride price ask the other party to return the bride price according to the first paragraph of Article 10 of the judicial interpretation, can they support it?
A: According to the first paragraph of Article 10 of the judicial interpretation (2), if both men and women are not registered for marriage, they should return the bride price. In practice, men and women may form a cohabitation relationship just because they don't understand the legal provisions. However, after the court explains the corresponding legal provisions, both men and women may be willing to re-register because of their feelings. If the people's court simply decides that it is unfair to return the bride price, it will easily lead to contradictions. Therefore, when the people's court hears the case of bride price return in the above circumstances, it should explain the legal provisions to both men and women who live together when necessary, and can decide to return without re-registering for marriage.
3. Article 4 of the Answer of Zhejiang Higher People's Court on Several Issues Concerning the Trial of Marriage and Family Cases (20 16) stipulates: "4. If the two parties are not registered to get married, but have lived together, what should the parties ask for the return of the bride price? A: Article 10 (1) of Judicial Interpretation of Marriage Law (II) stipulates that "both parties have not gone through the marriage registration formalities", which is not aimed at the situation that both parties have lived together. Although the two parties have not gone through the marriage registration formalities, they have indeed lived together, and if the parties request to return the bride price, the court may decide whether to return the bride price according to the living time, birth situation, reasons for non-registration, the amount of the bride price, the use of the bride price, the return of the bride price and local customs and habits. If you need to return, you can determine the amount of return according to the above factors. "
4. Guiding Opinions of the Intermediate People's Court of Zhoukou City, Henan Province on the Trial of Bridal Price Disputes (Trial) Article 7 If a man and a woman live together for more than one year and less than two years without going through the marriage registration formalities, the amount returned shall not exceed 30% of the total bride price; * * * If they have lived together for less than one year and three months, the returned amount shall not exceed 50% of the total bride price; * * * If they have lived together for less than three months, the returned amount shall not exceed 70% of the total bride price;
If the cohabitation relationship is dissolved due to the reason of the party paying the bride price, and the woman is pregnant or miscarried during the same life, it can be reduced by 5% to 20% on the basis of the preceding paragraph.
(3) Both men and women have gone through the marriage registration formalities and have not lived together.
Scope of return: The court may return part of the bride price at its discretion, and the specific amount shall be determined according to the amount of the bride price, the length of the marriage, whether there are justified reasons for not living together, the fault of both parties, local customs and habits and other factors.
Basis for return: According to the law, after marriage registration, the relationship between husband and wife is established, and the conditions for bride price gift have been met and come into effect, so the bride price should not be returned. However, in view of the fact that although the two parties registered to get married, they did not live together, that is, "there is a name of husband and wife, but there is no reality of husband and wife." The two sides did not form the same life as husband and wife, did not enjoy their due rights in the relationship between husband and wife, and did not assume corresponding obligations. According to the principle of fairness, a part of the bride price needs to be returned.
1 Item (2) of Article 10 of Interpretation II of Marriage Law stipulates: "If one of the parties requests to return the bride price paid according to the custom, the people's court shall support it if it is found that it belongs to the following circumstances: (2) Both parties have gone through the marriage registration procedures but have not lived together.
2. Guiding Opinions of the Intermediate People's Court of Huainan City, Anhui Province on Several Issues Concerning the Trial of Divorce Disputes Article 26 If one party requests to return the bride price paid according to the custom at the time of divorce, the clothes and jewelry in it are generally regarded as gifts, and the judgment will not be returned. The large amount of cash and property in the bride price shall be handled in accordance with the following provisions: (1) If both parties have gone through the marriage registration formalities but have not lived together, they shall be returned;
3. Several Opinions of Dingxi Intermediate People's Court on Returning the Bridal Gift in the Trial of Marriage and Family Cases (Trial) Article 7 Both parties have gone through the marriage registration formalities, but if the bride price is not paid together or the payer's life is difficult, they should adhere to the principle of taking care of the innocent party, returning it fairly and appropriately, and return the bride price as appropriate.
4. Several Opinions of Dingxi Intermediate People's Court on Returning the Bridal Gift in the Trial of Marriage and Family Cases (Trial) Article 8 If both parties have gone through the marriage registration formalities but have not lived together, the return shall not exceed 90% within one year, 80% within two years and 70% within three years; If the bride price payer files for divorce, the return shall not exceed 70% within one year, 60% within two years and 50% within three years.
(four) both men and women go through the formalities of marriage registration, and live together, and pay before marriage, which makes it difficult for the payer.
Note: Pre-marital payment leads to the difficulties of the payer's life: the situation that the payer cannot maintain the most basic local living standard by relying on personal property and divorce property because of bride price payment.
Scope of return: The court may return part of the bride price at its discretion. The author thinks that the specific amount of return of the bride price is generally based on maintaining the local basic living standard.
Return basis: In practice, one party pays the bride price according to the custom, which leads to a sharp decline in the living standard of himself and his family, and even the phenomenon of debt. At the time of divorce, one party may still be unable to get rid of the life dilemma caused by paying a high bride price, and may return part of the bride price.
1. Article 19 of the Notice of the Supreme People's Court on Several Specific Opinions of People's Courts in Handling Divorce Cases stipulates that if the marriage relationship does not last long, or if the other party's life is difficult because of asking for property, the property acquired by the marriage relationship can be returned as appropriate. If it is difficult to determine whether the property obtained is a request or a gift, it can be treated as a gift. ? 2. Guiding Opinions of the Intermediate People's Court of Huainan City, Anhui Province on Several Issues Concerning the Trial of Divorce Disputes Article 26 If one party requests to return the bride price paid according to the custom at the time of divorce, the clothes and jewelry in it are generally regarded as gifts, and the judgment will not be returned. The large amount of cash and property in the bride price shall be handled in accordance with the following provisions:
(2) If both parties have gone through the marriage registration formalities and lived together, they will not be returned in principle at the time of divorce. However, if the payment is made before marriage, the payer has a hard life and the two parties have lived together for less than six months, 80% of the payment amount will be returned; If both parties have lived together for six months but less than one year, 60% of the paid amount will be refunded; If both parties have lived together for more than 1 year but less than 2 years, 40% of the payment amount will be refunded; If both parties have lived together for more than two years, they will not be returned.
3. The book Interpretation of Several Issues Concerning the Application of Marriage Law (II) Understanding and Application of Marriage Law says that the payment of bride price in Article 10 of Interpretation of Marriage Law has caused difficulties in life.
Absolute living difficulties should be taken as the standard, not relative living difficulties. The so-called absolute difficulties are real difficulties, because it is impossible to maintain the most basic living standards in the local area by ourselves. The so-called relative difficulty is that compared with before the bride price is paid, the difference before and after the payment is quite wide, which is even more difficult than the original living conditions. The original intention of judicial interpretation is the provision in the latter sense, that is, absolute difficulty.