On April 7, the "Interpretation of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China (II) (Draft for Comments)" (hereinafter referred to as the "Draft for Comments") was released to the public for public comment, which attracted widespread attention from all walks of life. The all-media reporter of China Women's Daily interviewed Jiang Yue, vice president of the Marriage and Family Law Research Association of the China Law Society and professor of Xiamen University, and Zhang Jing, director of the marriage and inheritance department of Beijing Lianggao Law Firm, to interpret the relevant content in the draft for comments.
Contribute to equal protection of the spouse in a cohabitation relationship who has made a greater contribution to living together
The Consultation Paper adds the right to claim compensation for housework when the cohabitation relationship is terminated, and stipulates that the people's court may determine the amount of compensation based on facts such as the length of cohabitation, the amount of energy invested in bearing the corresponding obligations and the impact on both parties, the circumstances of the cohabitation and the separation of property, the economic status of both parties, the affordability of the payer, and the level of local income.
Jiang Yue believes that there is a phenomenon of cohabitation between single men and women. In the past, the provisions on property relations during cohabitation were not clear. The Consultation Paper basically adopts the property rules between strangers for cohabitation relationships, and does not confer legal co-ownership of property for cohabitants, which may be to avoid legalizing cohabitation and is related to the fact that marriage and family are protected by the state under the Civil Code. The Consultation Paper adds the right to claim compensation for housework when the cohabitation relationship is terminated, drawing on the legal theory and legislative intent of divorce housework compensation, which is necessary and meaningful, and is conducive to the equal protection of the party in the cohabitation relationship who has made greater contributions to the common life, especially the vulnerable party.
It was determined that the tipping was invalid and provided a channel for the other party to remedy their rights
The Draft for Comments provides that where one of the husband and wife 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 court shall support it in accordance with law.
Where one of the husband and wife, without the consent of the other party, clearly exceeds the general household consumption level, seriously harming the interests of the husband and wife's joint property, 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 during the division of the joint property of the husband and wife in a divorce, the people's court shall support it in accordance with law.
Zhang Jing told reporters that the issue of live broadcast tipping is controversial in practice, and most of them are men tipping the opposite sex. In the case of joint property, one of the spouses does not have the power to dispose of it separately. "Live broadcast content containing obscene, pornographic and other vulgar information to lure users to tip" is not only a consumer behavior, but also a violation of the duty of loyalty of husband and wife, damaging the relationship between husband and wife. The Consultation Paper finds that tipping is invalid and provides a channel for the other party to remedy its rights.
It provides a feasible way to solve the problem of snatching and hiding minor children
The Draft for Comments provides that 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 take measures to order the perpetrator to stop the relevant conduct, the people's court shall support it in accordance with law.
Since 2020, Zhang Jing and her team have been concerned about the snatching and hiding of minor children. She told reporters that this problem is more prominent in practice, and in the past, it was believed that the solution to such problems was more inclined to act preservation, and it was difficult to apply for a personal safety protection order, and it was even rarer to apply a personality rights injunction. The provisions of the Consultation Paper expand the scope of application of personal safety protection orders and provide a feasible way to solve the problem of snatching and hiding minor children.
The Draft for Comments provides that where one parent or his close relatives snatch or conceal a minor child, and the other party requests that the perpetrator bear civil liability such as stopping the infringement, removing obstructions, and compensating for losses on the grounds that the rights arising from the performance of guardianship duties have been infringed, the people's court shall support it in accordance with law.
Zhang Jing believes that the above-mentioned provisions solve the problem of the cause of action for snatching and hiding minor children in judicial practice. In the past, it was often difficult to file a lawsuit in such a situation. The provisions of the Consultation Paper activate the existing legal provisions.
Jiang Yue told reporters that the provisions of the draft for comments on snatching and hiding minor children indicate that the Supreme People's Court has "taken action" and adopted the method of active intervention, and does not allow children to be used as bargaining chips to resolve marital disputes, which will help reduce the harm of serious family conflicts to minor children, protect the legitimate rights and interests of minors, and achieve social fairness and justice.
Negative evaluations of perpetrators of domestic violence make them pay a greater price
According to the provisions of the Draft for Comments, in divorce proceedings, where both parents request direct support 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 other party's direct support in accordance with the principle of the best interests of the minor child: (1) committing domestic violence or abusing or abandoning a family member, (2) having bad habits such as gambling or drug abuse, and (3) other circumstances that seriously harm the rights and interests of the minor child.
Zhang Jing told reporters that "committing domestic violence or abusing or abandoning family members" is also a legal circumstance for granting divorce under the marriage and family section of the Civil Code. In practice, there are also cases where perpetrators of domestic violence are granted custody of their children. The provisions of the draft make a negative assessment of the perpetrators of domestic violence, making them pay a greater price, and help create a social atmosphere against domestic violence.
Provide relief for the parent who is directly raising the child
The Draft for Comments provides that if the divorce agreement has clearly stipulated in 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 promise, if the children are already adults and able to live independently, and the party directly raising the children sues the other party to pay the outstanding child support, the people's court shall support it in accordance with law.
Jiang Yue has called for the establishment of a system of recovery for child support. She told reporters that child support should be borne jointly by the parents. In the past, if one party raised the child alone, the court usually did not support the claim for the alimony owed by the other party because there was no clear provision. The provisions of the Consultation Paper provide a remedy channel for the party directly raising the child, thereby plugging the loophole for the party who evades the responsibility of raising the child to fulfill the obligation to pay the child support.
In the future, it is expected that the amount of compensation for housework will be increased
The Draft for Comments stipulates that at the time of divorce, if 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 based on 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 level of local income.
Zhang Jing believes that this provision is a further refinement of the provisions of the Civil Code on compensation for housework, which provides more reference dimensions for the judicial decisions of the people's courts, and can form a calculation formula accordingly. At present, the compensation for housework in judicial adjudication is usually about 50,000 yuan. According to the provisions of the Consultation Paper, it is expected that the amount of compensation for housework will be increased in the future.
Source/China Women's Daily
Author/China Women's Daily all-media reporter Wang Chunxia
Editor/Zhao Rui
Review/Mingfang
Executive Producer/Qiao Hong
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