The reporter learned from the Supreme People's Court on the 7th that in order to correctly implement the Civil Code, protect the legitimate rights and interests of women, minors, the elderly, and the disabled in accordance with the law, and maintain the harmony and stability of marriage and family, the Supreme People's Court issued a judicial interpretation of the marriage and family section of the Civil Code (draft for solicitation of comments), which is now open to the public for comments.
The main points are as follows↓
In principle, bigamy does not apply to the correction of effect
In a case where the defendant claims that the legal marriage has already divorced or the spouse has died at the time of filing the lawsuit on the grounds that the parties to the lawful marriage have already divorced or the spouse has died, the people's court will not support the defense, unless the other party has reason to believe that the lawful marriage of the bigamist party has been dissolved or that there is no marriage.
Handling of parties claiming "sham divorce".
Where, after a husband and wife register their divorce, one party requests confirmation that the divorce is invalid on the grounds that both parties have expressed false intentions, the people's court will not support it. Where one party has evidence to prove that both parties' intentions are false, and requests confirmation that the relevant property and debt treatment clauses in the divorce agreement are invalid, and advocates a new division of the joint property of the husband and wife, the people's court shall support it in accordance with law.
Where the creditor of one of the spouses has evidence to prove that the provisions on the disposition of property and debts in the divorce agreement have the circumstances provided for in articles 538 and 539 of the Civil Code, and requests that the relevant provisions be revoked, the people's court shall support it in accordance with law.
Settlement of disputes over cohabitation and property separation
In a case of a dispute over property in a cohabitation relationship in which neither party has a spouse, where there is no agreement between the parties on the property acquired during the period of cohabitation and the negotiation fails, the people's court shall handle it according to the following circumstances:
•The wages, bonuses, remuneration for labor services, intellectual property income, property inherited or donated by each party, and the income from production, operation and investment of one party during the period of cohabitation shall be owned by each party;
•The property purchased by both parties with joint capital or the income from joint production, operation and investment, as well as other property that has been mixed and cannot be distinguished, shall be divided according to the specific circumstances of the property, and in accordance with the principle of taking care of the rights and interests of the children, the woman and the innocent party, taking into account the specific circumstances of the property, and taking into account the fact that each party has contributed capital and the size of the contribution.
Where, during the period of cohabitation, one party requests compensation from the other party due to a large burden of obligations such as raising children, taking care of the elderly, or assisting the other party in work, and the two parties have no agreement on this and the negotiation fails, the people's court may determine the amount of compensation on the basis of facts such as the time spent living in the cohabitation, the amount of energy invested in bearing the corresponding obligations, the impact on both parties, the circumstances of the cohabitation, the economic status of both parties, the affordability of the paying party, and the level of local income.
Disposal of houses based on marriage gifts
•Before marriage or during the existence of the marital relationship, if one party changes and registers all the houses in the name of the other party or both parties, and in the divorce proceedings, the party requests the other party to return it, the people's court shall, at the request of the parties, combined with the purpose of donating the real estate, comprehensively consider the duration of the marital relationship, the fault of the divorce, the economic situation of both parties, and other facts, and make a judgment that the house is owned by one party, and with reference to the market price of the house, the party that obtained the house shall give appropriate compensation to the other party, unless the two parties have specifically agreed.
•Under the circumstances provided for in the preceding paragraph, if the donor has evidence to prove that the donee has committed fraud, coercion, or the circumstances provided for in Article 663 of the Civil Code, and requests to revoke the agreement, the people's court shall support it in accordance with law.
Minors and one of the spouses
Handling of live streaming tipping payments
•Where minors under the age of 8 carry out tipping through online livestreaming platforms, and their legally-designated representative claims that the civil juristic act is invalid and requests the return of the tipping money, the people's courts shall support it in accordance with law.
• Where minors between the ages of 8 and 16, or those 16 years of age or older, who are unable to rely on their own labor income as their primary source of livelihood, carry out tipping conduct through an online livestreaming platform that is inappropriate for their age, intelligence, or mental health, without the consent of their legally-designated representative, and the legally-designated representative does not recognize it and claims that the civil juristic act is invalid, and requests that the livestreaming platform return the money already given, the people's courts shall support it in accordance with law.
• Where one of the spouses carries out tipping through an online livestreaming platform, and there is evidence showing that the livestreaming content contains vulgar information such as obscenity or pornography to lure users to tip, and the other party claims that the civil juristic act is invalid and requests that the online livestreaming platform return the money already given, the people's courts shall support it in accordance with law.
• Where one of the husband and wife gives a reward without the consent of the other party, clearly exceeding the general consumption level of the family, seriously harming the interests of the joint property of the husband and wife, and the other party requests that the joint property be divided during the existence of the marital relationship on the grounds that the other party has squandered the joint property of the husband and wife, or where the party who gave the reward is given a small or no share when the joint property of the husband and wife is divided in a divorce, the people's court shall support it in accordance with law.
Parents after the marriage of their children
Determination of the contribution to the purchase of the house
If, during the existence of the marital relationship, one of the parents contributes full capital to purchase a house for the husband and wife, and there is no agreement or the agreement is unclear, when the joint property of the husband and wife is divided in divorce, the people's court may make a judgment that the house belongs to one of the children of the investor, and comprehensively consider the facts such as the common life and pregnancy, the fault of the divorce, and the value of the house, and the party who obtained the house shall give appropriate compensation to the other party.
If, during the existence of the marital relationship, both parents contribute capital or one parent partially contributes capital to purchase a house for the husband and wife, and there is no agreement or the agreement is unclear, when the joint property of the husband and wife is divided in divorce, both parties claim the ownership of the house and one party does not agree to obtain it through bidding, the people's court may make a judgment that the house is owned by one party on the basis of facts such as the source and proportion of the capital contribution, the common life and pregnancy, the fault of the divorce, and the registration of the property rights of the house, and the party who obtained the house shall compensate the other party at a discount.
One of the spouses renounces the effect of inheritance
Where one of the husband and wife claims that the other party's renunciation of inheritance is invalid on the grounds that the other party's inheritable property is the joint property of the husband and wife, and that the renunciation of inheritance harms the interests of the joint property of the husband and wife, the people's court will not support it, except where there is evidence showing that the renunciation of inheritance caused the waiver of the party to be unable to perform its legally-prescribed obligations.
Personal safety protection orders or injunctions on personality rights
Circumstances of snatching or concealing minor children may be applied
Where one parent or their close relatives snatch or conceal a minor child, and the other party applies to the people's court for a personal safety protection order, or applies with reference to article 997 of the Civil Code to employ measures to order the perpetrator to stop the relevant conduct, the people's court shall support it in accordance with law.
Civil liability for snatching and concealing minor children
and defences
•Where one of the parents or their close relatives snatches or hides a minor child, and the other party requests that the perpetrator bear civil liability such as stopping the infringement, removing obstructions, or compensating for losses on the grounds that the rights arising from the performance of guardianship duties have been infringed, the people's courts shall support it in accordance with law.
•Where the party who snatches or conceals a child claims that there is a lawful reason for snatching or hiding a minor child on the grounds that the other party has circumstances that seriously infringe on the minor child's physical or psychological health, such as gambling, drug abuse, or domestic violence, the people's court shall inform the party that it may be resolved through means such as applying for revocation of guardianship, suspension of visitation, or modification of custody relationship.
In the case of direct maintenance by the other party, priority is given
In divorce proceedings, where both parents request direct custody of a minor child who has reached the age of two, and one party has any of the following circumstances, the people's court shall give priority to the direct custody of the other party in accordance with the principle of the best interests of the minor child:
• Committing domestic violence or abusing or abandoning a family member;
•Have gambling, drug abuse and other vices;
• Other circumstances that seriously harm the rights and interests of minor children.
Effect of the agreement not to bear the maintenance payment
Where it is stipulated in the divorce agreement that one party will directly raise the minor child and the other party will not bear child support, and after the divorce, the change in the economic status of the party directly raising the child leads to a significant decrease in the original standard of living or a significant increase in the child's necessary and reasonable expenses such as for the child's living, education, and medical care, and the minor child sues for the other party to pay child support, the people's court shall support it in accordance with law.
Handling of unpaid child support when the child reaches adulthood
•Where an adult child who is able to live independently requests that the parent pay him or her child support during the period when he or she is a minor or unable to live independently, the people's court will not support it.
•If the divorce agreement has clearly stipulated the maintenance of minor children or adult children who are unable to live independently, or the party who does not directly raise the children promises to pay child support through other means, and after the divorce, the party who does not directly raise the children fails to perform the payment obligations in accordance with the agreement or commitment, if the children are not yet minors or are still unable to live independently, and the children sue for payment of the outstanding child support, the people's court shall support it in accordance with law; 。
The divorce agreement stipulates that the property will be given to the children
•If the divorce agreement stipulates that specific property will be given to the children, and after the divorce, one party requests to revoke the agreement before the transfer of property rights, the people's court will not support it, unless the other party agrees.
•Where one party fails to perform the obligations agreed upon in the divorce agreement in the preceding paragraph, and the other party requests that it bear civil liability such as continuing to perform or compensating for losses due to inability to perform, the people's court shall support it in accordance with law.
•If the divorce agreement stipulates that specific property will be given to the children, and after the divorce, if one party has evidence to prove that there was fraud or coercion when signing the divorce agreement, and requests to revoke the relevant provisions of the divorce agreement, the people's court shall support it in accordance with law.
Determination and handling of financial compensation for divorce
At the time of divorce, where one of the spouses who has more obligations such as raising children, taking care of the elderly, or assisting the other party in work, requests compensation from the other party, the people's court shall determine the amount of compensation on the basis of facts such as the duration of the marital relationship, the energy invested in bearing the corresponding obligations, the impact on both parties, the degree of contribution to the family, the economic status of both parties at the time of divorce, the ability of the paying party to afford, and the local income level.
Handling of financial help for divorce
At the time of divorce, where one of the spouses is still unable to maintain the basic standard of living in the local area by relying on personal property and the property obtained at the time of divorce, and requests appropriate assistance from the other party who can afford it, the people's court shall support it in accordance with law.
Where one party does not have a house to live in due to financial hardship, the people's court may, at the request of the parties, make a judgment that the other party who has the ability to afford it to assist in the following ways:
• The right to use the house for a certain period of time without compensation;
• Rent of the premises in an appropriate amount;
• Establishment of residency for a certain period of time by judgment;
• Other practical ways.
Source: News Network
Shaanxi Net Hancheng Station (Editor Wang Meina)