People diagnosed with COVID-19 register their marriages with others
Will it render the marriage null and void?
Can one of the children be affected by the epidemic?
Decreased revenue as a justification
Refusal to pay parental support?
……
In this march of fighting the epidemic together, the epidemic is quietly a public health emergency, and it is inevitable that as a legal fact, it will cause changes in the relationship between rights and obligations and bring new problems and challenges to the judiciary.
Recently, the Panlong District People's Court of Kunming City, from the perspective of the trial of marriage and family cases, sorted out the hot issues of marriage and family law, prepared a special topic of "husband and wife relationship, parental support, child support, and child education", and answered ten legal issues that are prone to appear, in the hope that the substantive rights and litigation rights of the parties can be safeguarded in a timely manner.
Special topic on conjugal relations
1. Couples suffering from COVID-19 marriages will not be invalidated
According to the Civil Code of the People's Republic of China, where there is bigamy, it is forbidden to marry a family relationship; if one of the circumstances has not reached the legal age of marriage, the marriage is invalid.
The Civil Code abolishes the invalidity of a marriage that "a person who has a medically unmarried illness before marriage and has not been cured after marriage" and adopts three enumerative provisions, that is, only if the above three circumstances are met, it is an invalid marriage. Therefore, if one of the spouses is diagnosed with new crown pneumonia or the person who is diagnosed with new crown pneumonia registers marriage with others, it does not lead to the invalidity of the marriage.
2. Husband and wife have the obligation to support each other
The Civil Code does not stipulate that when one party is seriously ill, the other party may not sue for divorce, but it should be noted that according to the Civil Code of the People's Republic of China, "Husband and wife have the obligation to support each other, and when one party fails to perform the maintenance obligation, the party who needs to support has the right to require the other party to pay alimony." "If the purpose of the party suing for divorce is to evade the statutory maintenance obligation, the people's court will, according to the actual circumstances of the case, consider the living support obligation between the husband and wife, and reject the litigation claim of the party suing for divorce.
In addition, it should be noted that, according to the Civil Code of the People's Republic of China, in the event of a divorce in which one party has difficulties in living due to illness, the other party shall give appropriate assistance to the sick party with its property when dividing the property.
3. Encountering COVID-19 during separation is a continuation of separation
According to the Civil Code of the People's Republic of China, if there is a situation of "separated for two years due to emotional discord" and mediation is ineffective, it can be found that the relationship between the husband and wife has indeed broken down, and divorce shall be granted.
There are two kinds of "separation", the first is the separation of husband and wife in geographical space due to social reasons, which cannot be used as the basis for the breakdown of feelings; the second is due to bad feelings, artificially causing separation, such a situation if the separation of two years is ineffective, it should be regarded as a rupture of feelings.
If the husband and wife are separated for less than two years due to emotional discord, if they are forcibly isolated during the separation period in the event of the new crown pneumonia epidemic, it is a continuation of the separation state and can be counted as the period of separation. However, if the separation is less than two years and then returns home to live together and is forcibly isolated due to the epidemic, it is not a continuation of the separation state, and at this time it cannot be regarded as a separation due to emotional discord.
Topic on parental support
4. If there are genuine difficulties in paying alimony, it may be appropriately reduced or suspended for the time being
According to the Civil Code of the People's Republic of China, children have the obligation to support their parents; if an adult child does not fulfill the maintenance obligation, parents who lack the ability to work or have difficulties in life have the right to demand alimony from their adult children. It is the legal duty of a child to pay alimony to a parent who is unable to work or who is in difficulty in life. The reduction of children's income affected by the epidemic does not affect the obligation to support their parents, but if it is really difficult to pay alimony, they can negotiate with their parents to temporarily reduce or suspend the payment.
5. Parental infection refusal to care is suspected of constituting abandonment
According to the Civil Code of the People's Republic of China, adult children have the obligation to support, support and protect their parents. Article 14 of the Law of the People's Republic of China on the Protection of the Rights and Interests of the Elderly stipulates: "The breadwinner shall perform the obligations of providing for the elderly economically, taking care of them in their daily lives and providing for their spiritual comfort, and take care of the special needs of the elderly." Article 15 stipulates: "The breadwinner shall enable the sick elderly to receive timely treatment and care; For the elderly who are unable to take care of themselves, the breadwinner shall bear the responsibility for care; where they cannot take care of them personally, they may entrust others or old-age institutions to take care of them in accordance with the wishes of the elderly. ”
After the parents were treated and discharged from the hospital for epidemic infection, their children refused to perform their legal obligations of personal care or other means to support their parents on the grounds that they were afraid of being infected, violating relevant regulations and suspected of constituting abandonment.
Child Support Topics
6. One spouse suffering from COVID-19 is not a determinant of child support
According to the Civil Code of the People's Republic of China, "the determination of the child-rearing relationship shall be based on the principle of being conducive to the growth and life of the child, combined with the child's growth experience, living environment, and comprehensive factors such as the economic income, nature of work, and companionship of both husband and wife." "Because the epidemic is not the main factor affecting the growth and life of children, infection with new crown pneumonia does not mean that the ability to raise children is inevitably lost, so one of the spouses with new crown pneumonia can only be used as one of the comprehensive considerations for child support, and should not be used as a decisive factor in the ownership of child support." Therefore, in accordance with the above-mentioned legal provisions, the living conditions of both parents should be comprehensively considered, and from the perspective of benefiting the physical and mental health of the children and protecting the legitimate rights and interests of the children.
7. It is not appropriate for the parent to change the relationship of support if infected with the new crown
According to the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the Civil Code of the People's Republic of China: "In any of the following circumstances, if one of the parents requests a change in the child-rearing relationship, the people's court shall support it: if the party living with the child is unable to continue to raise the child due to serious illness or disability; Willing to live with the other party, who has the ability to support; there are other legitimate reasons for the change. ”
The above provisions clearly stipulate that if the party living with the child is unable to continue to support the child due to serious illness or disability, he shall be supported to change the child support relationship. Covid-19 is not incurable at present, and contracting COVID-19 does not necessarily lead to the inability to continue to support children. Therefore, it is not appropriate to directly identify the infection of the child with covid-19 as a statutory situation for changing the child support relationship, and whether the change should still be considered in combination with various factors.
8. Infection with the virus during the epidemic may suspend the right of visitation
According to the Civil Code of the People's Republic of China, "Where a parent visits a child and is detrimental to the physical and mental health of the child, the people's court shall suspend the visit in accordance with law; "The exercise of the right of parental visitation should still be based on the principle of benefiting the physical and mental health of the child, in accordance with the current speed, route and scope of the virus, in the case of the infected party or close contact with the infected person, the exercise of the right of visitation is very likely to infect the child with the virus, which is not conducive to the physical and mental health of the child, so the right to visit should be suspended and the right to visit should be restored after the epidemic stabilizes or it is cured."
Special topics in children's education
9. Parents help their children at home to improve their ability to take care of themselves and live independently
Parents are the legal guardians of minor children. According to the Civil Code of the People's Republic of China, "The duty of a guardian is to carry out civil juristic acts on behalf of the ward and protect the ward's personal rights, property rights and other legitimate rights and interests." During the period of being at home due to the epidemic, parents should strengthen the obligation to educate and protect their children's safety, let them comply with the various regulations issued by the government for the epidemic, educate their children to protect themselves, and teach them to complete the school's online learning tasks.
According to the Law of the People's Republic of China on the Promotion of Family Education, "Parents or other guardians shall establish a sense of responsibility that the family is the first classroom and parents are the first teachers, bear the main responsibility for the implementation of family education for minors, and educate minors to develop good thoughts, conduct, and habits with correct thoughts, methods, and behaviors." ”
During the epidemic period, minors' parents or other guardians shall combine the characteristics of minors' physical and mental development to educate minors to establish the concept of safeguarding national unity, forge a solid sense of the Chinese national community, and cultivate feelings of family and country; cultivate their good social morality, family virtues, personal morality awareness, and awareness of the rule of law; enhance their spirit of scientific exploration, awareness of innovation, and ability; guide them to develop good living habits and behavioral habits, promote their healthy physical and mental development; and help them master safety knowledge and skills. Enhance their awareness and ability to protect themselves; help improve their ability to take care of themselves and live independently, and develop excellent character and good habits of loving labor.
10. Children's education should not be neglected due to epidemic control
"The family is the first classroom, parents are the first teachers", family education should take flexible and diverse measures in light of the actual situation of the epidemic, and children's education cannot be ignored due to epidemic control. According to the Law of the People's Republic of China on the Promotion of Family Education, where in the course of handling a case, the people's court discovers that a minor has serious negative conduct or committed a criminal act, or that the minor's parents or other guardians have incorrectly carried out family education and infringed upon the lawful rights and interests of minors, they may be reprimanded on the basis of the circumstances and may order them to accept family education guidance.
Source: Spring City Evening News