The Supreme People's Court's Interpretation (2) on the Application of the PRC Civil Code’s Marriage and Family Section (Draft for solicitation of Comments)

by China Law Translate | 2024/04/11 10:25 AM

This Interpretation is drafted on the basis of the P.R.C. Civil Code, The Civil Procedure Law of the PRC, and other relevant laws and in consideration of trial practice, in order to correctly hear cases of marital and family disputes.

Article 1: [In principle Corrective Validity does not apply to Bigamy]

In cases where a finding that a marriage is invalid due to bigamy is requested, and the defendant argues that the second marriage is valid because at the time the litigation was raised, they had already divorced or their spouse had died, the people’s courts are not to support the defense, except for where the other party had reason to believe that the legal marriage of the bigamist party has already been ended or did not exist.

Article 2: [Handling parties’ claims of ‘fake divorce’]

Where, after a husband and wife register a divorce, one party requests a finding that the divorce is invalid on the grounds that both parties made false representations, the people's courts are not to support it. Where one party has evidence showing that both parties made false representations and requests a finding that provisions in the divorce agreement regarding the handling of property and debts are invalid, and argues for a new division of the joint marital property, the people's court should support it in accordance with law

Where a creditor of either the husband or wife has evidence showing the circumstances provided for in Civil Code articles 538 and 539 exist in the divorce agreement’s provisions on the handling of assets and debts, and requests that the relevant provisions be revoked, the people's court should support it in accordance with law.

Article 3: [Handling Disputes Over Division of Assets in Cohabitation]

In cases of division of property among cohabitants where neither party has a spouse and the parties did not make an agreement providing for property acquired during the cohabitation period and the cannot reach an agreement through discussion, the people's court is to address it in accordance with the following situations:

(1) Each party shall take possession of the wages, bonuses, compensation for labor, and income from intellectual property rights earned by them during the cohabitation period and the property inherited or donated to them, as well as the income from their independent production, business, or investments;

(2) Property purchased together by both parties or the income from joint production, business, or investments, as well as other mixed assets that cannot be separated are to be divided based on the specific circumstances of the property and a comprehensive consideration of facts such as the proportion of each party’s contribution and the size of their contribution, and in accordance with the principle of caring for the rights and interests of children, women, and the parties without fault.

Where, during the cohabitation period, one party bore more obligations such as raising children, caring for the elderly, or assisting the other party work, and requests compensation from the other party, and the parties did not have an agreement providing for this and cannot reach an agreement through discussion, the people's court may determine the amount of compensation based on facts such as the length of the cohabitation, the energy devoted to the obligations borne and its impact on both parties, the division of cohabitation property, the parties’ economic situations, the ability of the party to pay, and local income levels.

Article 4: [Handling of Houses Gifted for Marriage]

Where one party changed the registration of a house they owned to be under the other party’s name or under both parties’ names either prior to marriage or while the marital relationship was ongoing, and that party requests that the other party return it during divorce proceedings, then based on the party’s request and the purpose of gifting the house, and a comprehensive consideration of facts such as the period for which the marital relationship continued, fault in the divorce, and the parties’ economic situations, the people’s court shall make a judgment for the house to be taken by one party and for the other party to receive appropriate compensation in consideration of the house’s market value; unless the parties have made a special agreement.

In the situations provided for in the preceding paragraph, where the party that made the gift has evidence showing that the party receiving the gift has circumstances such as fraud, coercion, or those provided for in article 663 of the Civil Code, and requests that the agreement be revoked, the people's court should support it in accordance with law.

Article 5: [Handling Livestream Tips by Minors and One of the Spouses]

Where minors under the age of 8 tip through online livestreaming platforms and their legal representative argues that this civil juristic act is invalid and requests that the tips be returned, the people’s courts should support it in accordance with law.

Where minors aged 8-15, or minors 16 years old or greater whose own income is unable to be their primary livelihood, give tips through online livestreaming platforms that are not appropriate for their age, intelligence, or mental health without their legal representative’s consent, and the legal representative does not subsequently endorse them and argues that the civil juristic acts were invalid and requests that the online livestream platform return to tips, the people’s court should support it.

Where a husband or wife tips through online livestreaming platforms and there is evidence showing that the content of the livestream contained pornography, sex, or other vulgar information to entice users to give tips, and the other party argues that this civil juristic act is invalid and requests that the online livestream platform return the tips, the people's court should support it in accordance with law.

Where the husband or wife clearly tipped outside the normal spending level of the family, seriously harming the husband and wife’s rights and interests in joint property, and the other party requests that joint assets be divided while the marital relationship is ongoing on the grounds that the other party is squandering joint property, or requests that the tipping party be given less or nothing when the couple’s joint property is divided at divorce, the people's court should support it.

Article 6: [Gifts in Violation of Public Order and Good Custom]

Where a husband or wife gift joint martial property or sells it at a clearly unreasonable price as a result of circumstances contrary to public order and good custom such as bigamy or cohabitating with someone else, and the other party argues that the contract is invalid and requests the return, the people’s court should support it in accordance with law.

Article 7: [Determinations on houses purchased by parents for the children at marriage]

During the period of marital relations, where one party’s parents put forward the full amount to purchase a house for the husband and wife, and there is no agreement or the agreement is unclear, the people’s court may make a judgment that the house is to be owned by the child of the party that paid for the house when the joint marital property is divided at divorce, and comprehensively consider facts such as the circumstances of their shared life, pregnancy and children, fault in the divorce, and the value of the family home, in having the party receiving the house give appropriate compensation to the other party.

During the period of marital relations, where both parties’ parents contribute or one party’s parents give a part of the cost to purchase a house for the husband and wife, and there is no agreement or the agreement is unclear, and the parties both argue for ownership and one side does not agree to bidding against each other, the people’s court may make a judgment for ownership by one party on the basis of facts such as the source and proportion of payments, the marital and childbearing situation, fault in the divorce, and real estate registration, and the party obtaining the house is to give the other party pro-rated compensation.

Article 8: [Validity of one spouse’s transfer of limited liability company shares in their own name]

Where one spouse transfers shares in a limited liability company that are registered in their own name, and the other party requests a finding that the contract for the transfer is invalid on the grounds that it encroached on joint maritial property without their consent, the people’s court is not to support it, unless there is evidence showing that the transferring party and recipient maliciously colluded to harm the other party’s lawful rights and interests.

Article 9: [The shareholding ratio registered with a business is not a spousal agreement]

Where spouses invest in a limited liability company with joint marital property and are both registered as shareholders, and the parties do not have an agreement on the ownership of those joint assets or the agreement is unclear, and when divorcing, one party requests that a division be made in accordance with the shareholding ratio registered with the enterprise, the people's court is not to support it and is to handle it in accordance with Civil Code article 1087.

Article 10: [Validity of a spouse’s waiver of inheritence]

Where one spouse argues that the other’s forfeiture of inheritance is invalid on the grounds that the inheritance would be joint marital property and the forfeiture harmed their rights and interests in the joint property, the people’s court is not to support it, except where there is evidence showing that the forfeiture caused the forfeiting party to be unable to perform legally-prescribed obligations.

Article 11: [Personal safety protection orders or personality rights injunctions can be applied to situations of snatching or hiding minor children]

Where one parent or their close relative snatches or hides a minor child and the other party applies to the people’s court from a personal safety protection order or applies for an order the perpetrator to stop the relevant conduct under Civil Code article 997, the people's court should support it in accordance with law.

Article 12: [Addressing Civil Liability for Snatching or Hiding Minor Children and Defenses]

Where one parent or their close relative snatches or hides a minor child, and the other party requests that the perpetrator bear civil liability for stopping the harm, eliminating obstructions, and compensating losses on the bais that their rights to perform guardianship duties have been encroached upon, the people's court should support it in accordance with law.

Where the party that snatched or hid the child argues that they had a reasonable reason for doing so in that the other parent had situations that were seriously harmful to the minor’s physical and mental health such as gambling, drug use, or domestic violence, the people’s court shall inform them that they may resolve the situation through channels such as applying for revocation of guardianship rights, suspending visitation, or modifying care relationships.

Article 13: [Circumstances for prioritizing direct custody by the other party]

During divorce proceedings, where both the father and mother request direct custody of a minor child that is already 2 years old, and one party has any of the following situations, the people's court shall prioritize consideration of direct custody by the other parent in accordance with the principle of the best interests of the child.

(1) Perpetrating domestic violence, or abusing or abandoning family members;

(2) Having bad habits such as gambling or drug use;

(3) Other situations that seriously harm to the physical or mental health of minor children.

第十四条【处分未成年子女名下房产的效力】

After parents acting as legal representatives dispose of real estate purchased with joint marital property and registered in the name of a minor child then argue to the other party to the contract that the contract is invalid because the disposition harmed the interests of the minor child, the people’s court is not to support it.

Article 15: [The validity of agreements to not bear child support]

Where a divorce agreement provides that one party will directly raise the minor child and the other party will not bear responsibility for support, and after the divorce the party directly raising the child has a change in their financial situation notably lowering their standard of living, or where the reasonable costs of necessities for the child such as living expenses, education, or medical care notably increase, and the minor child sues to demand that the other party pay support, the people’s court should support it.

Article 16: [Handling Unpaid Support After Children Reach Adulthood]

Where adult children that can live independently request that their father or mother give them support for when they were a minor or when they were unable to live independently, the people’s court is not to support it.

Where the divorce agreement has clear agreements on support for the minor children or adult children who cannot live independently, or the party that is not directly raising the children has promised to pay support through other channels, and after divorce, the party not directly raising the children does not follow the agreements or promises to fulfill the support obligations, then if the child has not yet reached majority or still cannot live independently, and the party directly raising the children sues to request that the other party pay support, the people’s court should support it in accordance with law.

Article 17: [Childcare determinations]

To determine the facts for stepchildren receiving support and education from their stepparents under Civil Code article 1072, the people’s court shall comprehensively consider factors such as the length of time they have lived together, whether the stepparents bear support costs, whether they actually care for and raise the children in their lives.

Article 18 [Divorce agreement provisions on giving property to children]

Where divorce agreements provide that specified property be given to children, and after the divorce, one party requests that the provision be revoked before the transfer of assets, the people’s court is not to support it unless the other party consents.

Where one party does not perform the preceding paragraph’s obligations from the divorce agreement, and the other party requests that they bear civil liability to continue performance or give compensation because they are unable to perform, the people's court should support it in accordance with law.

Where divorce agreements provide that specified property be given to the children, and after the divorce one party has evidence showing that there were circumstances such as fraud or coercion when the divorce agreement was signed, and requests the relevant provisions of the divorce agreement be revoked, the people’s court should support it in accordance with law.

Article 19: [The determination and handling of economic compensation for divorce]

When divorcing, the party that bears more obligations such as raising children, caring for the elderly, or assisting the other party work, requests compensation from the other party, the people's court shall determine the amount of compensation based on facts such as the length of the marital relationship, the energy devoted to the obligations, and their impact on both parties, the degree of contribution to the family, the parties’ economic situations at the time of divorce, the ability of the party to pay, and local income levels.

Article 20 [Addressing Economic Assistance in Divorce]

When divorcing, where one party is still unable to maintain the local basic standard of living by relying on their personal assets and the property allocated to them in the divorce, and requests that the other party give appropriate assistance that it can bear, the people's court should support it in accordance with law.

Where one party does not have a home to live in due to financial difficulties, the people's court may make a ruling that the other party give assistance that it can bear by employing the following measures:

(1) The right to use the house for free for a period of time;

(2) An appropriate amount of rent;

(3) establishing residency rights for a period of time through a judgment;

(4) Other realistic means.

Article 36: [Supplementary Provisions]

This Interpretation is to take effect on X/X/2024.

This interpretation applies to civil cases brought on by law and facts from after the implementation of the Civil Code, or that did have not completed trial by the time this interpretation takes effect; this interpretation does not apply where the final judgment has been made before its implementation, and a party applies for retrial or a decision to retrial is made in accordance with trial supervision procedures.

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