【Furong Lawyer's Statement】Marriage and Love Property Issues (4) - New Changes in Cohabitation and Property Separation

On April 7, 2024, the Supreme People's Court issued the "Interpretation of the Supreme People's Court on the Use <中华人民共和国民法典>of Marriage and Family (II) (Draft for Comments)" to solicit opinions from the public, which is also a legislative change in response to the increasing number of marriage and family issues in the post-Civil Code era. In the future, this series of articles will also share some new interpretations and understandings on property issues in the upcoming judicial interpretations.

Legislative changes in cohabitation

1. Cohabitation provisions of the current norms

The first point in the draft for comments is that in the current Civil Code and judicial interpretations, Article 1054 of the Civil Code states: "An invalid or annulled marriage shall not be legally binding from the beginning, and the parties shall not have the rights and obligations of husband and wife." The property acquired during the period of cohabitation shall be disposed of by agreement between the parties; if the agreement is not reached, the people's court shall make a judgment on the basis of the principle of taking care of the innocent party. The disposition of property in an invalid marriage resulting from bigamy must not infringe upon the property rights and interests of the parties to a lawful marriage. ”

and Article 3 of the Interpretation (1) of the Marriage and Family Section of the Civil Code: "Where a party initiates a lawsuit and only requests the dissolution of the cohabitation relationship, the people's court shall not accept it; Where parties initiate litigation due to disputes over the division of property or child support during the period of cohabitation, the people's courts shall accept it. ”

It can be seen that the existing regulations do not characterize cohabitation on the one hand, and on the other hand, do not provide detailed guidelines for the disposal of property, which also leads the courts to rely too much on discretion in the handling of such cases.

2. New changes in cohabitation and property separation

Article 3 of the new draft reads: In a case of property dispute over a cohabitation relationship in which neither party has a spouse, if there is no agreement between the two 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:

(1) The wages, bonuses, remuneration for labor services, and intellectual property rights earned by each party during the period of cohabitation, as well as the property inherited or donated by each party, as well as the income from the production, operation, or investment of one party alone, are to each of them;

(2) The property purchased by the two parties with joint capital contributions, or the income from joint production, operation, investment, and other assets that have been mixed and cannot be distinguished, shall be divided according to the specific circumstances of the property, and comprehensively considering the proportions of their respective contributions, the size of their contributions, and other facts, in accordance with the principle of taking care of the rights and interests of the children, the woman, and the innocent party.

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.

From the perspective of the provisions as a whole, this judicial interpretation provides for the division method according to the source of property in detail, which is a breakthrough compared with the existing provisions. Individual ownership of personal property and income is maintained, and the division of property jointly contributed by both parties is carried out in accordance with the provisions on the division of common property, and the principle of division similar to that of "strangers" is maintained as a whole.

The focus of the article is on the second half, which requires the division according to the principle of taking care of the rights and interests of the children, the woman and the innocent party, and finally stipulates the right to compensation for housework similar to that in family relations, that is, Article 1088 of the Civil Code, "If one of the spouses bears more obligations due to raising children, taking care of the elderly, assisting the other party in work, etc., he or she has the right to request compensation from the other party at the time of divorce, and the other party shall give compensation." "The purpose of the housework compensation system is to affirm the value of housework in the family, to ensure the legitimate rights and interests of the weaker party in the marriage relationship, and to ensure the equality and fairness of men and women in substance. Under the new Consultation Paper, in order to balance the housework of one party in a cohabitation relationship, the application of the housework compensation system to cohabitation and property separation is the biggest change under the cohabitation and property separation provisions, even if the cohabitation relationship has not yet been defined by law.

Part of the status quo of cohabitation

At the expert debate meeting on the draft for comments at the end of 2023, the following reply was made to the issue of cohabitation and property separation: "At present, there are many cases of cohabitation, and there are many disputes. The basic principle of cohabitation should be that each person's income belongs to each other, but on the basis of the closeness of living together, there can be no denial of joint property if there is a commingling of property. At the same time, although cohabitation is different from the legal protection of marriage, it must also be handled in accordance with the principle of taking care of the child and the woman in the case of dissolution. If one of the parties is seriously guilty of domestic violence, special consideration should also be given. ”

In this reply alone, it can be seen that the intention is to regulate cohabitation through civil law norms, and to prevent the lack of legal guidance in cases of cohabitation and property separation. For the commingling of property in the process of cohabitation, the division is based on the proportion of capital contribution adduced by both parties, which is also in line with the property division relationship under the general civil relationship.

In recent years, in the face of an increasing number of cohabitation disputes, a large number of cases have shown that judges in judicial practice will make judgments based on the cohabitation status of both parties, such as distinguishing the personal property of both parties in a short-term cohabitation relationship, and rarely supporting the property as a joint ownership or compensation claim of both parties; Even if the judge divides the property that has been mixed up in the cohabitation, it is basically based on the principle of fairness, for example, the part of the bride price that has been used up does not need to be returned, or the party who acquires the property needs to pay a small part of the compensation to the other party.

The legislative purpose of "compensation for domestic work".

In the face of the increase in the phenomenon of cohabitation between single men and women, judicial practice needs to avoid the development of cohabitation relationship into marriage relationship, resulting in cohabitation relationship becoming another de facto marriage, because the cohabitation relationship itself is not stable relative to the marital relationship, and even the reason why most parties choose to cohabit is to pursue the state between instability and stability under the cohabitation relationship, so as to gain more legal freedom and choice.

Under the Consultation Paper, since there are detailed provisions on how to divide the property of the parties during the period of cohabitation, avoiding the current excessive discretion, and the rules for dealing with "strangers" also seem to be in line with the situation pursued by the parties who actively choose the cohabitation relationship, then how to pass the regulations to leave room for judges to focus on the specific circumstances of the case, while avoiding the legalization of the cohabitation relationship, prevent the provisions on cohabitation and property separation from being regarded as a way to avoid legal marriage, and guide the society to treat marriage and family relations correctly, so that the last paragraph appeared" Compensation system for domestic work".

Since it is based on the housework compensation system under marriage and family, what is the amount of compensation for divorce and housework? In recent judicial practice, the amount of compensation in more typical cases ranges from 50,000 yuan to 120,000 yuan. In the adjudication, the judge considers whether there is a situation in the case of raising children and handling housework full-time, and on the other hand, taking into account the per capita income and education and medical level of the place where the parties are located, as well as the time of marriage of the parties, and cannot be calculated according to the market price of housework. For example, in a divorce and housework compensation case in Fangshan, Beijing, the compensation amount of 50,000 yuan was measured by the average monthly income of 7 to 8,000 yuan.

If the compensation provisions for cohabitation refer to the practice of divorce and housework compensation, then it is likely to be applicable to the situation where the parties have been living together for a long time, have given birth to children and formed a relatively fixed family life, and if the compensation system is not for a short-term cohabitation relationship, the compensation system can be abused to demand the other party to pay a "break-up fee". Of course, even after the implementation of this system, judges still need to exercise discretion, and on the good side, it gives the party who has paid more for the "family" the right to claim to protect its own rights and interests, and guides more parties to actively claim the request.

Source: Fingertip News

Author: Hunan Furong Law Firm, Yiyan Team, Family Lawyer Department, Lu Tong

Editor: Qiu Qi