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The Six Main Points Of The Marriage Law: The Separation Of Marital Property And The Protection Of The Weak

2011/9/20 10:38:00 42

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Six Main Points Of Marriage Law: Separation Of Marital Property And Protection Of The Weak

According to the data provided by the Supreme People's court, from 2008 to 2010, there were about 1 million 290 thousand, 1 million 340 thousand and 1 million 370 thousand cases of marriage and family disputes in the first instance of the national courts, which showed an upward trend year by year.

The Supreme People's court's "judicial interpretation of marriage law (three)" came into effect on August 13th.

Premarital loan

The issue of how to split up when buying a house and parents' contribution to buy a house, how to divide the divorce, whether the paternity test is a question, whether the third are protected or not, whether abortion has infringed reproductive rights or not, has been explained.

Pre marriage loans to buy their own homes

In modern society, it is very common for both parties to make loans before buying a house and after marriage.

In particular, according to China's traditional marriage habits, houses are generally provided by men, and houses are generally registered in the name of men.

Who should housing belong to in divorce?

Will there be "husband changed landlord to let men sing, women are mad?"

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The tenth rule is that the husband and wife sign a real estate sales contract before marriage, pay the down payment with personal property, and pay for it.

bank loans

If the real estate is registered under the name of the first payment, the real estate will be disposed of by the two sides when the divorce is made.

If no agreement can be reached, the court may decide to return to the property right registration, and the loan that has not been returned is the personal debt of the party who has registered the property right.

The two parties should pay the amount of the joint repayment of loans and the corresponding value added part of the property.

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Wang Fang, deputy director of the Beijing Law Association's marriage and family law, affirmed the tenth rule: "in fact, when people are disputed about who the house belongs to, they ignore tenth of the second items, that is, the part of the joint payment of the common property after marriage is compensated by the owner of the housing property. The compensation for the spouse must be compensated, and the interests of the real estate appreciation should also be considered. This is the biggest bright spot. It proves that the wife and husband can be the landlord as well." Wang Fang "

This is fair for women who do not buy houses but also help their spouse repay their loans for years.

"Gnawing old property" belongs to individuals.

At present, most of the young married couples are the only children born after 80 and after 90.

Housing gift

Quite common.

So, after marriage, what is the real estate purchased by parents for their children?

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The seventh provision provides that after the marriage is made by a parent's contribution to the purchase of real estate for the children, the property right registered under the name of the investor's child can be regarded as a gift to only one of his children, and should be identified as the personal property of the husband and wife.

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Yu Lijiang, vice president of the people's Court of Beijing Chaoyang District people's court, said that the previous judicial interpretation (two) stipulates that parents' contribution before their children's marriage is a gift to one side, while their parents' contribution after their marriage is a gift to both sides, which is very difficult to play in real life.

"Because of the idea that parents give their children money to buy houses, few people sign agreements or notaries.

The provisions of judicial interpretation (three) are more reasonable and more consistent with national conditions.

Separation of property in marriage to protect the weak

Do couples not divorce, can common property be divided?

The new judicial interpretation tells us that the law will protect the weak side.

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The fourth rule is that, when the marital relationship is in existence, the husband and wife request to divide the common property, the court does not support it, except for the following major reasons and does not damage the interests of creditors: (1) one party has hidden, pferred, sold, destroyed, squandered the couple's common property or forged the joint debt of husband and wife and so on, seriously harming the interests of the couple's common property; (two) a person who has a legal duty to support a person suffering from serious diseases needs treatment, and the other party does not agree to pay the related medical expenses.

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Wang Fang lawyers believe that the fourth provision is a major breakthrough in the issue of marital property.

It establishes the system of separating property in marriage, and it will protect the weak side of the couple.

In compliance with certain conditions, the disadvantaged party does not have to pay for the breach of marriage at the cost of the marriage, so the direct prosecution of the marriage requires that the property be divided, so as to protect the property from losses.

Wang Fang said that the division system of marital property has been clearly stipulated in foreign countries, and there is always a vacancy in this system.

Now, through judicial interpretation, we can immediately start relief for vulnerable groups and achieve fairness and justice. On the other hand, we can accumulate valuable experience for perfecting marital property system in the future.

Clause 3 was deleted

The "third party" clause that caused widespread controversy in the judicial interpretation (three) draft was deleted.

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The "third party" clause in the draft of judicial interpretation (three) is deleted, that is, "the spouse of a spouse cohabiting with another, in order to cancel the property compensation for the relationship of cohabitation, the one party requires payment of the compensation or the repayment after the payment of compensation, the court shall not support it; but the court shall accept and deal with it in accordance with the specific circumstances on the grounds of the violation of the common property rights of the husband and wife."

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Vice President Yu Lijiang held that the judicial practice of such cases is not rich enough, and the courts in various places did not form a unified understanding of the "third party" issue. They should make further provisions on the basis of extensive soliciting opinions.

Ma Yinan, vice president of the Chinese law society's marriage and Family Law Research Association and professor of Law School of Peking University, said that in the current judicial practice, the question of "third party intervention" is too controversial. In any case, one party will always be dissatisfied. "Because such cases involve the three party balance of" third parties' interests, the interests of husbands and their wives, and the boundaries between morality and law, which are more complex and difficult to handle. "

But Ma Yi Nan also believes that the court will not support the "third party" in judicial practice.

"When the third party comes to court to pay compensation, the court generally will not support it.

Such a moral advocacy does not require judicial interpretation to emphasize again.

The wife has no choice but to have children.

In the future, the wife will have the final say in order to prevent the female from becoming a reproductive tool.

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The ninth provision stipulates that the husband shall not support his wife's claim for compensation for the violation of the right to reproduce on the ground of his pregnancy.

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Vice President Yu Lijiang said that the new judicial interpretation actually confirmed that "termination of pregnancy" is the right of the wife.

"But at the same time, it also provides a relief clause for the man, that is, the man has a desire to give birth, but when the woman does not agree, there is a major difference, and the court may request a divorce.

There is no clear point in the previous marriage law.

Professor Ma Yinan believes that most countries do not require the abortion of the woman to obtain the consent of the man, and the right to control their body is higher than the right to know and the right of identity between the husband and wife.

If women can not control their bodies and have no right to refuse to give birth, they will probably become a tool of fertility.

Refusing to be a paternity test will lose the lawsuit

In recent years, paternity testing is becoming more and more popular. Children's family identification often involves a family's stability.

If a party refuses to do paternity testing without reason, then the law will support the other party's demands.

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The second rule is that the husband and wife must sue the court to confirm that the parent child relationship does not exist, and have provided the necessary evidence to prove that the other party does not have the opposite evidence and refuse to be paternity testing. The court can presumption of the claim that the parent child relationship does not exist.

If one party sues a request to confirm the parent-child relationship and provides the necessary evidence to prove it, and the other party does not have the opposite evidence and refuses to conduct paternity testing, the court may presumption of the claim that the parent child relationship is established.

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Vice President Yu Lijiang and Professor Ma Yin Nan believe that paternity testing is very mature and has high accuracy.

In fact, the previous judicial practice has done this. Some guiding cases of the Supreme People's court have been carrying out this spirit, but there has been no explicit provision.

Judicial interpretation (three) set the judicial practice in writing.