Civil Code (Marriage and Family)
A series of courses in the general education classroom
On January 1, 2021, the Civil Code of the People's Republic of China came into effect. On the premise of adhering to the system of freedom of marriage, monogamy, and equality between men and women, and in light of the needs of social development, the Marriage Law and other laws have been revised and improved in response to the needs of the new situation and new problems in the field of marriage and family, responding to the needs of the times and the expectations of the people, and providing a strong legal guarantee for shaping healthy and harmonious marriage and family relations.
In order to deepen the rule of law publicity of "Building the Rule of Law in Hainan, Women in Action", guide the majority of women and families to respect the law, learn the law, know the law, use the law, and abide by the law, effectively improve the awareness and ability to protect their own rights and interests in accordance with the law, and promote family harmony and social stability, the Hainan Provincial Women's Federation has launched a series of law popularization classes on the "Civil Code" of Sister Ye's Statement, focusing on common marriage and family legal issues, analyzing and interpreting the law through typical cases, and explaining the law and reasoning, so that everyone can learn and understand the "Civil Code" (marriage and family edition) and other relevant laws and regulations.
In this issue of [Sister Coconut's Statement] Civil Code (Marriage and Family Edition) Law Popularization Classroom (1): Sister Coconut will learn about the ten highlights of the marriage and family section of the Civil Code with you.
The first Civil Code of the mainland was deliberated and adopted on May 28, 2020, and came into force on January 1, 2021. At the same time as the implementation of the Civil Code, the original "Marriage Law", "Contract Law", "Guarantee Law", "Property Law" and "Inheritance Law" will all be repealed, and all laws will be subject to the "Civil Code".
The newly compiled Civil Code consists of 7 parts, including General Provisions, Property Rights, Contracts, Personality Rights, Marriage and Family, Inheritance, Tort Liability, and Supplementary Provisions, with a total of 1,260 articles.
The Marriage and Family Section of the Civil Code, based on the current Marriage Law and Adoption Law, has revised and improved some provisions and added new provisions. The provisions on marriage, divorce, and family relations are an important part of the section on marriage and family, and there are eight major highlights.
Highlight 1: New provisions defining relatives, close relatives and family members
Article 1045 of the Civil Code: "Relatives include spouses, blood relatives and relatives by law. Spouses, parents, children, siblings, grandparents, grandchildren, and grandchildren are close relatives. Spouses, parents, children and other close relatives living together are family members. ”
This legal provision embodies the intrinsic requirements of the Marriage and Family Section, and it regulates which members of society can have legal, marital and family rights and obligations in our social life.
1
Spouse: A legal husband and wife who have a personal or property relationship with each other.
2
Blood relatives: Relatives who are related to each other by blood. This includes both direct and collateral blood relatives.
3
In-laws: A network system of kinship that extends with marriage as the core.
Only those who have the status of legal relatives can have the rights and obligations in the marriage and family section, and the family is the basic unit of society. From the perspective of the fine tradition of the Chinese nation, looking at home is not just a husband and wife and a family of three, but "everyone".
Highlight 2: Divorce damages have been added with a catch-all clause
★ Article 46 of the Marriage Law In any of the following circumstances, the innocent party has the right to claim damages if the divorce is caused: (1) bigamy; (2) A person who has a spouse cohabits with another person; (3) Committing domestic violence; (4) Abusing or abandoning family members.
★ Article 1091 of the Civil Code In any of the following circumstances, where a divorce is caused, the innocent party has the right to claim damages: (1) bigamy; (2) A person who has a spouse cohabits with another person; (3) Committing domestic violence; (4) Abuse or abandonment of family members; (5) There are other major faults.
★ Article 1054, Paragraph 2 of the Civil Code Where a marriage is invalid or annulled, the innocent party has the right to claim damages.
The right to claim damages for the innocent party under the Marriage Law is limited to the four situations listed in the Marriage Law: bigamy, cohabitation, domestic violence, and abuse and abandonment.
The Marriage and Family Section of the Civil Code adds a "catch-all" clause to the compensation for divorce damages, and adds the circumstance of "other major faults". In other words, for acts that are not clearly enumerated such as marital infidelity, the innocent party will have the right to claim compensation in the event of divorce, which fully protects the rights of the innocent spouse and provides a legal basis for judicial decisions.
Highlight 3: Innovative provisions on divorce by mutual agreement
Article 1076 of the Civil Code: "Where a husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration in person at the marriage registration authority. The divorce agreement shall clearly state the parties' expression of intent to divorce voluntarily and the consensus on matters such as child support, property, and debt handling. ”
[Interpretation] As a husband and wife, in the case of the existence of a personal relationship, if the relationship between the husband and wife has indeed broken down, the legal requirements for the disclosure of acts and the protection of rights must be followed: (1) substantive elements (voluntary divorce); (2) the elements of conduct (legal norms of conduct), that is, the parties sign a written agreement; (3) Divorce registration shall be handled in accordance with the law (the marriage registration authority shall conduct a legality review). The divorce requirement has three necessary contents, which reflect the strict constraints of the law on the parties' right to divorce voluntarily, that is, to prohibit the abuse of rights.
Highlight 4: The divorce is too impulsive and can be withdrawn within 30 days
Article 1077 of the Civil Code: Within 30 days from the date of receipt of the application for divorce registration by the marriage registration authority, if either party is unwilling to divorce, he or she may withdraw the application for divorce registration from the marriage registration authority. Within 30 days after the expiration of the period provided for in the preceding paragraph, both parties shall apply in person to the marriage registration authority for the issuance of a divorce certificate; If the application is not made, it shall be deemed that the application for divorce registration has been withdrawn.
★ There is a cooling-off period for divorce by mutual agreement, and both men and women must go to the Civil Affairs Bureau twice in person to complete the process.
Article 1077 of the Civil Code and the Civil Code: "Within 30 days from the date of receipt of the application for divorce registration by the marriage registration authority, if either party is unwilling to divorce, he or she may withdraw the application for divorce registration from the marriage registration authority.
Within 30 days after the expiration of the period provided for in the preceding paragraph, both parties shall apply in person to the marriage registration authority for the issuance of a divorce certificate; If the application is not made, it shall be deemed that the application for divorce registration has been withdrawn. ”
After the expiration of the cooling-off period, if neither man nor woman withdraws the application for divorce registration, they need to go to the marriage registration office again within 30 days to apply for the issuance of a divorce certificate.
The Civil Code sets a 30-day cooling-off period for those who divorce by mutual agreement, and within 30 days, as long as one of the parties does not agree to the divorce, the marriage cannot be divorced. The legislative purpose of the cooling-off period for divorce is to achieve human rights equality, personal freedom and personal dignity of the parties to a marriage. The 30-day divorce cooling-off period system can effectively avoid impulsive and rash divorce between husband and wife, which is conducive to guiding the parties to treat marriage rationally and exercise their rights prudently, and at the same time plays an important buffer role in protecting family relations and maintaining family stability.
Highlight 5: If the first lawsuit for divorce fails, and the divorce is sued again after one year of separation, the court shall grant the divorce.
★ Article 32 of the Marriage Law provides that if a man or a woman requests a divorce, the relevant departments may mediate or directly file a divorce lawsuit with the people's court.
★ Article 1079 of the Civil Code: Where the parties have been separated for one year due to emotional discord after a people's court has ruled that divorce is not permitted, and one party initiates divorce proceedings again, the divorce shall be granted.
According to the Marriage Law, in the judicial practice of divorce proceedings, if one party requests a divorce and the other party firmly disagrees with the divorce, it is possible that the marriage relationship cannot be dissolved after two or three lawsuits.
In response to the phenomenon of "long-term mediation without judgment" in divorce proceedings. The Civil Code stipulates that: "After the people's court has ruled that divorce is not allowed, if the parties have been separated for one year and one party files a divorce lawsuit again, the divorce shall be granted".
Highlight 6: Illness was removed as a cause for nullity of marriage
Article 1053 of the Civil Code: If one party suffers from a serious illness, he or she shall truthfully inform the other party before the marriage is registered; If the other party does not tell the truth, the other party may request the people's court to annul the marriage. A request for annulment of marriage shall be made within one year from the date on which the reasons for revocation are known or should have been known.
The Civil Code no longer prohibits marriage by "suffering from a disease that is medically deemed unfit for marriage", which is a manifestation of respect for the autonomy of marriage. However, honesty between husband and wife is very important, and if one party conceals a serious illness, the other party can apply to the people's court for annulment of the marriage and has the right to claim damages. The definition of "critical illness" needs to be further explained.
Highlight 7: The joint debt of husband and wife is more clear
★ Article 1064 of the Civil Code stipulates that: "Debts incurred by both husband and wife as jointly signed by the husband and wife or by one of the husband and wife as a result of the subsequent recognition of the common intention, as well as debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship for the daily needs of the family, are joint debts of the husband and wife." Debts incurred by one of the spouses in his or her own name during the existence of the marital relationship in excess of the daily needs of the family are not joint debts of the husband and wife; However, the creditor can prove that the debt was used for the husband and wife's common life, joint production and business, or based on the common intention of the husband and wife. ”
The Civil Code clarifies the principle of joint debt co-signing, that is, the joint debts of husband and wife can only be considered joint debts of husband and wife if they are jointly signed by both husband and wife or recognized by one of the husband and wife afterwards and in other forms of common intent. Article 24 of the previous Interpretations of Several Issues in the Marriage Law of the People's Republic of China (II) stipulates that "if a creditor claims rights in respect of a debt incurred by one of the spouses in his or her own name during the existence of the marital relationship, it shall be treated as a joint debt of the husband and wife", so that one party is "indebted" without knowing it. On January 18, 2018, the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife stipulates that only when both husband and wife jointly sign a loan contract can it be recognized as a joint debt of husband and wife.
The Civil Code clarifies the provision of "joint debt co-signing", which is intended to guide creditors to avoid unnecessary disputes after the formation of debts, especially large debts, and to strengthen risk prevention in advance, and to require husband and wife to sign together as much as possible.
On the one hand, this institutional arrangement is conducive to protecting the right to know and consent of the other spouse, and can prevent the occurrence of debts from the source of debt formation. On the other hand, it can also effectively prevent creditors from suffering unnecessary losses due to their inability to provide evidence to prove that the debt is a joint debt of the husband and wife, which is of positive significance for ensuring the security of the transaction and the legitimate rights and interests of one of the husband and wife.
Highlight 8: There is no longer any dispute over the custody of children under the age of two in divorce cases
★ Article 36 of the Marriage Law After divorce, the child who is breastfeeding shall be raised with the nursing mother as a principle. If the two parties cannot reach an agreement due to a dispute over the custody of a child after breastfeeding, the people's court shall make a judgment based on the rights and interests of the child and the specific circumstances of both parties.
★ Article 1084 of the Civil Code After divorce, children under the age of two shall be directly raised by their mothers. Where the parents fail to reach an agreement on the issue of custody for a child who has reached the age of two, the people's court is to make a judgment based on the specific circumstances of both parties and in accordance with the principle of the best interests of the minor child. Where children have reached the age of 8, their true wishes shall be respected.
★ The Civil Code amends the Marriage Law to "the principle that a child under the age of two years shall be raised directly by the mother", clearly defining the age limit of "breastfeeding" to enhance operability.
In addition, for children who have reached the age of eight, the child's true wishes should be asked and respected.
Highlight 9: The spouse who has contributed more to the family affairs can be compensated in the event of a divorce
The Marriage Law stipulates that only under the separate property system of husband and wife, that is, the husband and wife agree in writing that the property acquired during the marriage relationship shall belong to each other, if one party has paid more obligations for raising children, taking care of the elderly, assisting the other party in work, etc., he or she has the right to claim compensation from the other party at the time of divorce.
The Civil Code removes the above-mentioned restrictions on the separate property regime of husband and wife, and expands the scope of application of divorce compensation.
Highlight 10: Guide the construction of family civilization
★ Article 4 of the Marriage Law Husband and wife shall be faithful to each other and respect each other; Family members shall respect the old and love the young, help each other, and maintain equal, harmonious, and civilized marriage and family relations.
★ Article 1043 of the Civil Code: Families shall establish a good family style, promote family virtues, and attach importance to the establishment of family civilization. Husbands and wives should be faithful to each other and respect each other; Family members shall respect the old and love the young, help each other, and maintain equal, harmonious, and civilized marriage and family relations.
Compared with the Marriage Law, this provision of the Civil Code reflects the legislator's guidance and norms for family ethics and morality, which is conducive to encouraging people to cultivate a good family style and improve the overall social atmosphere.
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Source: Hainan Provincial Women's Federation Rights and Interests Department Summary Editing Text: Fang Lili Review: Wang Chudie