The issue of visitation rights
Article 38 of the "Marriage Law" stipulates: "After divorce, the party who does not directly support the children has the right to visit the children, and the other party has the obligation to help. The method and time for exercising the right to visit shall be agreed upon by the parties; if an agreement cannot be reached, the People's Court shall make a decision. If the parents' visit to their children is detrimental to the physical and mental health of the children, the People's Court shall suspend the right to visit in accordance with the law."
We Visitation rights can be grasped from the following aspects.
First, the right to visit does not arise from the direct consent of the parents, nor does it require confirmation by a court decision.
2. When determining the time and method of visitation, the Marriage Law stipulates two methods: parental agreement and court judgment, and establishes the principle of priority for the agreement. If the parents cannot reach an agreement through negotiation, or the caregiver directly refuses to negotiate, the person with the right to visit can file a lawsuit against the caregiver and require him to determine the time and method of visitation in accordance with the law.
Third, the suspension of visitation rights.
Suspension of visitation rights refers to the legal system in which the court decides that the visitation rights holder shall suspend the exercise of visitation rights within a certain period of time when the visitation rights holder meets the legal reasons for the suspension of visitation rights. Paragraph 3 of Article 38 of the "Marriage Law" stipulates: "If parents' visit to their children is not conducive to the physical and mental health of the children, the People's Court shall suspend the visitation rights in accordance with the law. After the reasons for the suspension disappear, the visitation rights shall be restored." One party fails to pay child support or fails to pay child support. The fact that child support is paid on time is not a condition for suspending visitation rights and cannot be used as a legal basis for suspending visitation rights. The fact that a parent is imprisoned for a crime is not an inevitable reason for stopping visitation, and the rights and obligations between the imprisoned parent and his or her children will not be extinguished by their imprisonment, unless the parent is imprisoned for a crime against their child. Therefore, the Marriage Law stipulates that the subject of suspending visitation rights can only be the People's Court, and no other individual, organization or agency may suspend the visitation rights of the person with visitation rights.
At the same time, the law also protects visitation rights from infringement. 1. The fault of one party to the divorce does not affect visitation rights. Second, visitation rights are independent of other parental rights, such as custody and custody.
Fourth, the exercise of visitation rights.
Article 48 of the "Marriage Law" stipulates: "If you refuse to implement judgments or rulings on alimony, child support, property division, inheritance, visitation of children, etc., they shall be enforced by the People's Court in accordance with the law. Relevant individuals "And the unit should be responsible for assisting in the implementation." Through this provision, the law gives the power of enforcement of visitation rights. When executing such cases, the court should focus on persuasion, education and ideological work, but it can also take appropriate coercive measures against those who often obstruct, make things difficult or even hide their children without reason or refuse the other party's exercise of visitation rights. Those who refuse to cooperate may also be subject to fines, detention and other penalties.
Marital fault compensation in divorce
Article 46 of the "Marriage Law" stipulates that if one of the following circumstances leads to divorce, the non-fault party has the right to request damages:
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(1) Bigamy;
(2) Having a spouse living with others;
(3) Carrying out domestic violence;
(4) Abusing or abandoning family members.
The "damage compensation" stipulated in Article 46 of the "Marriage Law" includes material damage compensation and mental damage compensation. Where compensation for mental damage is involved, the relevant provisions of the "Interpretations of the Supreme People's Court on Certain Issues Concerning Determination of Liability for Compensation for Mental Damage in Civil Torts" shall apply.
Invalid marriage system
Article 10 of the "Marriage Law" stipulates that a marriage is invalid if one of the following circumstances occurs:
(1) Bigamy;
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(2) Having a kinship relationship that prohibits marriage;
(3) Suffering from a disease that is medically considered inappropriate for marriage before marriage and not cured after marriage;
(4) Those who are under the legal age for marriage.
When the People's Court accepts different cases of annulment and divorce of the same marriage relationship, it shall first hear the invalid marriage case, and the divorce case shall be heard after the application for annulment of the judgment. Within one year after the death of one party to an invalid marriage, the people's court shall accept the application of the surviving party or interested party to declare the marriage invalid.
Revocable Marriage System
Article 11 of the "Marriage Law" stipulates that if a marriage is coerced, the coerced party may request the marriage registration authority or the people's court to annul the marriage. If the coerced party requests the dissolution of a marriage, the request must be made within one year from the date of registration of the marriage. If the party whose personal freedom has been illegally restricted requests the dissolution of the marriage, the request should be made within one year from the date of restoration of personal freedom.
Article 12 of the "Marriage Law" stipulates that property acquired during cohabitation shall be dealt with by agreement between the parties; if the agreement cannot be reached, the People's Court shall make a judgment based on the principle of taking care of the non-fault party. The property disposal of an invalid marriage caused by bigamy shall not infringe upon the property rights of the parties to the legal marriage. The relevant provisions of this law shall apply to the children born to the parties concerned.
In a marriage that is declared invalid or annulled, the property acquired by the parties during the period of cohabitation shall be regarded as * * * and * * *. Unless there is evidence that it is owned by one party.
Education for children of divorced families
The Marriage Law stipulates that the relationship between parents and children will not be eliminated due to the divorce of the parents. After a divorce, a child remains the child of both parents, whether raised by the father or the mother. After divorce, parents still have the right and obligation to raise and educate their children. Stepparents and adoptive parents shall perform their parental crime prevention responsibilities for the minor stepchildren and adopted children raised and educated by them.
Protecting the rights and interests of the elderly
In order to solve the above problems, it is necessary to study how to strengthen the obligations and responsibilities of children to support the elderly, not to abuse the elderly, and to respect and protect the freedom of marriage of the elderly; it is necessary to strengthen Relevant state agencies perform their duties in accordance with the law to prevent and punish illegal and criminal acts such as abuse of the elderly, abandonment of the elderly, interference with the freedom of marriage of the elderly, etc.; the role of relevant organizations such as women's federations, neighborhood committees, village committees, etc. must be fully utilized to better safeguard the legal rights of the elderly. rights and interests.
Can I request a return of the bride price?
Betrothal gifts, also known as betrothal gifts and lottery tickets in some places, have been a marriage custom in China for thousands of years. At present, in the vast rural areas of our country, the phenomenon of paying bride price for marriage is still relatively common. In many places, many families who are not well off have gone into debt to pay the bride price, causing an extremely heavy financial burden. Because of this, when many rural couples divorce, there is great controversy over whether the bride price should be returned.
Article 10 of the Interpretation (2) of the New Marriage Law adopts the majority view. According to my country's current national conditions, if a bride price is paid according to customs, there are three situations in which the bride price can be requested to be returned: first, the parties have not completed the marriage registration procedures; second, the parties have completed the marriage registration procedures, but have not lived together; third, the pre-marital payment resulted in a payment of Difficulties. The second and third items stipulated in the "Interpretation" are conditioned on the divorce of both parties.
Handling of cases of dissolution of cohabitation relationship
According to the provisions of Article 1 of the Interpretation of the New Marriage Law: 1. The People's Court will not accept cases of dissolution of cohabitation relationship, but the cohabitation relationship requested by the parties falls into the category of " Except for spouses living together with others. Disputes involving property division and child support shall be heard by the People's Court in accordance with the law. This is mainly due to the fact that the Marriage Law prohibits spouses from living together with others. If a party concerned requests the People's Court to terminate such a cohabitation relationship, the People's Court shall accept the application and terminate it in accordance with the law. 2. For a cohabitation relationship in which neither man nor woman has a spouse, since this relationship is not a social relationship stipulated and protected by law, if the parties only file a lawsuit to terminate the cohabitation relationship, the People's Court will not accept the case. However, if a party files a lawsuit regarding property division and child support issues during cohabitation, it is a civil legal relationship regulated by law, and the people's court should accept the lawsuit and equally protect the legitimate rights and interests of the children and the parties.
Property division after divorce by agreement
If the man and woman regret the issue of property division within one year after the divorce by agreement and request to change or terminate the property division agreement, the people's court shall accept it.
After trial, the People’s Court found that there was no fraud or coercion in entering into the property division agreement, and dismissed the parties’ claims in accordance with the law. If a party files a lawsuit due to the other party's violation of the agreement during the performance of the agreement, the People's Court shall also accept the case in accordance with the law. K
●Author’s business card
Lawyer Guo Kai is currently the deputy director of Shaanxi Qicheng Law Firm. Graduated from Shanxi University and is good at various types of civil and economic litigation; he has handled a large number of non-litigation legal affairs such as drafting, review, modification and negotiation of commercial contracts, and has accumulated rich practical experience in the process of work; he has worked at Shanxi University of Finance and Economics, He serves as a part-time teacher in universities such as Taiyuan Radio and Television University and has published many papers in provincial publications; currently, we are committed to real estate research, corporate restructuring, asset restructuring, corporate mergers and acquisitions, and financing legal services.