New judicial interpretation of marriage law (no new marriage law). It is stipulated that after divorce, if one of the husband and wife refuses to accept the division of property due to the threat or fraud of the other party during the divorce period agreed within one year, they can bring a lawsuit to the court instead of appealing.
The new interpretation of the Marriage Law stipulates that the following property acquired by husband and wife during the marriage relationship shall be owned by the husband and wife:
(1) Wages and bonuses;
(2) Income from production and operation;
(3) Income from intellectual property rights;
(4) Inheritance or gift of property;
(5) Other property that should be owned by husband and wife;
In any of the following circumstances, it shall be the property of one of the spouses:
(1) one party's premarital property;
(2) Medical expenses, living allowance for the disabled, etc. Obtained by one party due to physical injury;
(3) Property determined to belong only to the husband or wife in the will or gift contract;
(4) Daily necessities used exclusively by one party;
(five) other property that should be owned by one party.
Husband and wife may agree that the property acquired during the marriage relationship and the property before marriage belong to themselves, all or part of them, and part of them. Because this agreement is oral, uncertain and prone to disputes, the legal provisions must be in writing.
The Supreme People's Court's "Several Specific Opinions on Handling Property Division in People's Courts' Trial of Divorce Cases" holds that personal property, marital property and family property should be distinguished in the trial, and the principles of equality between men and women, protection of the legitimate rights and interests of women and children, taking care of the innocent party, respect for the wishes of the parties and reasonable settlement of production and life convenience should be adhered to. Twenty-two specific opinions were put forward, among which the sixth one conflicts with the current marriage law.
Specifically including:
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 services and property purchased 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);
(three) 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. During the marriage relationship, the demobilization fee and employment fee earned by demobilized soldiers, who have been married for more than 10 years, shall be divided according to the marital property. The medical subsidies and production subsidies brought back by demobilized soldiers from the army should be owned by themselves.
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, one party's property is 5, the other party's property is 3, the difference should be 2, one party with property 5 should give it to the other party 2, the party with less property should become 5, and the party with more property should become 3, which is unfair. This is a mistake made by legislators, but it is reasonable and illegal. No matter how clever a person is, no matter how long he thinks, there will be times when he is lost.
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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. Property owned by one party before marriage and jointly used, operated and managed by both parties after marriage, houses and other valuable means of production can be regarded as joint property of husband and wife after 8 years and 4 years of valuable means of subsistence. (the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China) It is stipulated 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. Personal effects,
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. Within 8 years after marriage, both parties have repaired, renovated, demolished and built the house owned by one party before marriage. If the property right is not changed at the time of divorce, the house still belongs to the property owner, and the share of 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. (According to the Supreme People's Court's explanation, the time limit should not be limited to 8 years).
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" as 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 jointly owned at the time of 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.
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15. The intellectual property that one party did not get economic benefits at the time of divorce belongs to the other party. When dividing the property of husband and wife, appropriate care can be given to the other party according to the specific circumstances.
16. Personal property before marriage is naturally damaged, consumed and lost in married life.
At the time of divorce, one party claims compensation with the joint property of husband and wife, which is not 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 house and other property borrowed by one party before marriage have been converted into the joint property of the husband and wife, the debts incurred in purchasing the house by borrowing money shall be regarded as the joint debts of the husband and wife.
19. At the time of divorce, if the marriage time is not long, or the other party's life is difficult because of asking for property, it 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.
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. Where one party illegally hides or transfers the property of the husband and wife and refuses to hand it over,
Or illegally sold or destroyed, when dividing the property, the party who hides, transfers, sells or destroys the property will be given less 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 Civil Procedure Law of People's Republic of China (PRC).