50 legal issues related to divorce

01

Does "living with others" constitute a legal divorce?

The husband and wife live with others, which refers to the spouse and the extramarital opposite sex. They do not continue to live and stable together in the name of the husband and wife.According to Article 1079 of the Civil Code, if one of the following situations, if the mediation is invalid, divorce shall be allowed: (1) a big marriage or living with others.If the mediation is invalid, divorce should be allowed.

02

What situations need to be returned in "Cai Li"?

According to Article 5 of the Judicial Interpretation of Marriage and Family, the party’s request to return the gifts paid in accordance with the customs. If it is found that it is the following situation, the people’s court shall support:

(1) The two parties do not go through the procedures for marriage registration; (2) the two parties go through the marriage registration procedures but do not live together; (3) pre -marital payment and make people pay difficulties.

The provisions of the second and third paragraphs of the preceding paragraph shall be based on the divorce of both parties.

03

What is "de facto marriage"?

According to Article 7 of the Judicial Interpretation of Marriage and Family, men and women who do not live together in the name of husband and wife shall be treated differently in accordance with Article 1049 of the Civil Code, and a lawsuit requires divorce.

(1) Before the implementation of the "Regulations on the Management of Marriage Registration and Management" on February 1, 1994, if both men and women have met the essential requirements of marriage, they are dealt with according to factual marriage.

04

Can the husband ask for a divorce without his husband’s consent?

According to Article 23 of the Judicial Interpretation of Marriage and Family, if the husband requested damage compensation on the grounds of suspending the infringement of his fertility on the grounds of his wife’s unauthorized pregnancy.If one party requests a divorce, the people’s court shall be processed in accordance with the provisions of Article 1079, paragraph 3, paragraph 3 of the Civil Code.

Note: Article 1079 of the Civil Code has one of the following circumstances. If the mediation is invalid, divorce shall be allowed:

(1) Drying or living with others; (2) implementing family violence or abuse, abandoning family members; (3) repeated teachings such as gambling and drug abuse; (4)The relationship between husband and wife is broken.

05

During the marriage relationship, which property belongs to the common property of the husband and wife?

According to Article 1062 of the Civil Code, the following property obtained by the husband and wife during the existence of the marriage relationship is the common property of the husband and wife, and the husband and wife are owned by the husband and wife:

(1) Wage, bonus, labor remuneration;

(2) The income of production, operation and investment;

(3) The income of intellectual property rights;

(4) Inherited or received property, but except for Article 1063 (3) of this Law;

(5) Other assets of the common property.

According to Article 25 of the Judicial Interpretation of Marriage and Family, during the duration of the marriage relationship, the following property belongs to the "other property that should be attributed to the common property" stipulated in Article 1062 of the Civil Code:

(1) The income obtained by the investment of one party with personal property;

(2) Housing subsidies and housing provident funds that both men and women actually obtain or should be obtained;

(3) Compensation fees for basic pensions and bankruptcy resettlement that are actually obtained or should be obtained by both men and women.

According to Article 27 of the Judicial Interpretation of Marriage and Family, a house that is purchased by one party before marriage and a common property after marriage shall be registered under one party, and it shall be identified as the common property of the husband and wife.

06

If one party sells common houses without authorization, can the other party claim compensation?

According to Article 27 of the Judicial Interpretation of Marriage and Family, one person shall support one of the losses of the other party in one unauthorized punishment of all houses and the other party. The people’s court shall support it.

07

Before the marriage, how did the parents be qualitative for their parents to purchase houses for both parties?

According to Article 29 of the Judicial Interpretation of Marriage and Family, before the parties pay for the purchase of houses for both parties before they get married, the capital contribution shall be determined to be a gift to their own children, but parents clearly stated that they will be given to both parties.

08

After the marriage, how can one parents be qualitative for both parties to purchase houses for housing?

According to Article 29 of the Judicial Interpretation of Marriage and Family, after the parties are married, the parents who purchase houses for both parties shall be dealt with in accordance with the agreement; if there is no agreement or the agreement is not clear, according to Article 106, paragraph 1, paragraph 4 of the Civil Code,Principles specified in the item.

09

Can they ask the court to ask the court to divide the common property?

According to Article 1066 of the Civil Code, if there is one of the following circumstances during the existence of the marriage relationship, the husband and wife can request a common property from the people’s court:

(1) One side has a behavior that seriously damages the common property of the husband and wife for the hidden, metastasis, sale, damage, and extravagance of husband and wife common debt;

(2) One party with a legal support obligation is needed to be treated with major illnesses, and the other party does not agree to pay relevant medical expenses.

10

Children have been in college. Is there any right to ask their parents to pay for the support?

According to Article 1067 of the Civil Code, adult children who are unable to live independently have the right to request parents to pay for the support fee.

According to Article 41 of the Judicial Interpretation of Marriage Law, adult children who still receive educational education in high school and below in the school, or have lost or partial labor ability, can be identified as "Civil Code" for non -subjective reasons.Article 1067 "adult children who cannot live independently".

Therefore, except for the child’s minor, for children who have been in college, if they are not adult children who cannot live independently, they have no right to ask their parents to pay for the support.

11

When divorce, what costs do you borne by the party who do not directly support the child include?

According to Article 42 of the Judicial Interpretation of Marriage and Family, Article 1067 of the Civil Code is called "support for support", including children’s living expenses, education, medical expenses and other expenses.

12

How to determine the payment of the maintenance fee?

According to Article 49 of the Judicial Interpretation of Marriage and Family, the amount of support for the support can be determined according to the actual needs of the children, the burden of the parents, and the actual living level of the local area.

If there is a fixed income, the maintenance fee can generally be paid at a percentage of 20 % to 30 % of the total monthly income.If the support for the support of two or more children can be appropriately increased, but generally not more than 50 % of the total monthly income.

If there is no fixed income, the amount of the support fee can be determined based on the total income of the year or the average income of the same industry.In special circumstances, the above ratio can be appropriately increased or reduced.

13

In what circumstances, it is not appropriate to be raised by a mother who is less than two years old?

According to Article 44 of the Judicial Interpretation of the Marriage and Family, a divorce case involves raising minor children shall be dealt with in accordance with the principles stipulated in Article 1084 of the Civil Code for two years of age.The mother has one of the following situations. If the father requests directly to raise it, the people’s court should support:

(1) Infectious diseases that are not cured for a long time or other severe diseases, children should not live with them;

(2) There is no obligation to support for raising, and the father asked his children to live with him; (3) For other reasons, children should not live with their mother.

14

For minor children who have reached the age of two, parents are required to be raised directly. What are the situations in one party, can they give priority to?

According to Article 46 of the Judicial Interpretation of Marriage and Family, parents who are two -year -old are required to be raised directly. If one has one of the following circumstances, priority considerations can be given:

(1) Sterilized surgery or loss of fertility for other reasons;

(2) The children live with their lives for a long time, and changing the living environment is significantly unfavorable to the healthy growth of the children;

(3) No other children, while the other party has other children;

(4) Living with their children is beneficial to the growth of their children, and the other party suffers from infectious diseases or other serious diseases, or there are other circumstances that are not conducive to children’s physical and mental health. It is not advisable to live with children.

15

When the conditions for raising their children in both men and women are basically the same, which side is given priority to the support?

According to Article 47 of the Judicial Interpretation of Marriage and Family, the conditions for parenting their children are basically the same. Both sides are required to directly raise their children, but their children have lived with their grandparents or grandparents for many years.Those who take care of the children or grandson children can be considered as priority conditions for their father or mother to raise their children.

16

Can both parents agree to raise their children in turn, can it be supported?

Can.According to Article 48 of the Judicial Interpretation of Marriage and Family, if it is conducive to protecting the interests of their children, the people’s court shall allow the people’s court to approve.Therefore, for changes in the custody right of children, the children and women can take turns to directly raise their children by the men and women, thereby reducing the difficulty of direct change of custody rights.

17

In what circumstances, one party can ask for changing custody?

According to Article 56 of the Judicial Interpretation of Marriage and Family, if one of the following circumstances, if the parent’s request for changing the child care relationship, the people’s court shall support:

(1) The party that lives with the children due to severe diseases or the unable to continue raising the children due to disability;

(2) The party that lives with the children does not have the obligation to support or has the behavior of abuse, or it does not affect the physical and mental health of the children with the children;

(3) Children who are eight years old are willing to live with the other side, and the party has the ability to raise;

(4) There are other legitimate reasons to be changed.

18

After the divorce, can the side of the child who directly support the child change the surname of the child?

Can’t.If you need to change the surname of the children, you must negotiate with both men and women and go to the public security department to handle it.According to Article 59 of the Judicial Interpretation of Marriage and Family, if a father or mother has changed the surname of the child to the stepmother or stepfather surname without authorization, the dispute shall be ordered to restore the original surname.However, parents must not refuse to pay for their children’s support because their children change their surnames.

19

How can the husband and wife become a non -civil behavior capable person, how to file a divorce lawsuit?

According to Article 36 of the Civil Code and Article 62 of the Judicial Interpretation of Marriage and Family, after one of the following parties has one of the following circumstances, other people with custody qualifications may request to revoke them.Qualifications and designated new guardians in accordance with the law.The guardian after the change can act as an agent who has no ability of civil behavior to file a divorce lawsuit:

(1) Implement a serious damage to the physical and mental health of the guardian;

(2) Lare the supervision responsibilities, or fail to perform the duties of guardianship, and refuse to entrust the supervision duties or all to others, causing the guardian to be in a state of danger;

(3) Other behaviors that seriously infringe on the legitimate rights and interests of the guardian person.

20

If the right to visuality is not mentioned in the divorce agreement, how to protect the probation right of non -direct raising children?

According to Article 65 and 68 of the Judicial Interpretation of Marriage and Family, if there is no right to visit in the divorce agreement, and the two parties cannot reach an agreement through the agreementEssenceFor the relevant individuals or organizations that refuse to help the other party exercise the right to visit, one party may apply to the court to take compulsory measures such as detention and fines in accordance with the law, but cannot enforce the children’s personal and visual behavior.

twenty one

How should the houses commonly shared by husband and wife be divided when divorced?

According to Article 76 of the Judicial Interpretation of Marriage and Family, when the value and ownership of the house in the common property of the husband and wife cannot reach an agreement, the people’s court shall handle it according to the following situations:

(1) Both parties advocate the ownership of the house and agree that the bidding is obtained.

(2) If one party advocates housing ownership, the evaluation agency shall evaluate the house according to the market price. The party who obtains the ownership of the house shall give the other party corresponding compensation;

(3) Both parties do not advocate the ownership of the house. According to the party’s application auction or selling the house, the income price is divided.

twenty two

How to divide the houses that have not obtained ownership of the husband and wife or have not obtained exactly ownership at the time of divorce?

According to Article 77 of the Judicial Interpretation of Marriage and Family, when the two parties have controversial and inaccessible houses that have not obtained ownership or have not yet obtained complete ownership, the people’s court should not judge the ownership of the ownership of the house.use.

After the parties have fully owned ownership on the houses stipulated in the preceding paragraph, if they are controversial, they may filed a lawsuit with the people’s court.

twenty three

Is the borrowing contract between husband and wife in marriage effective?

According to Article 82 of the Judicial Interpretation of Marriage and Family, a borrowing agreement shall be established between husband and wife to lend one party to one party to engage in personal business activities or use it for other personal affairs., Divorce can be handled in accordance with the agreement of the borrowing agreement.

twenty four

What are the situations, should I get divorce?

Article 1079, 2, and 3 of the Civil Code stipulates that the people’s courts should be mediate for a divorce case; if the relationship is indeed broken and the mediation is invalid, divorce shall be allowed to be allowed.If one of the following situations, if the mediation is invalid, the divorce shall be allowed:

(1) Drying or living with others;

(2) Implementing family violence or abuse or abandon family members;

(3) Evil habits such as gambling, drug abuse are repeatedly taught;

(4) For two years due to emotional discord;

(5) Other circumstances that lead to the breakdown of the husband and wife;

Paragraph 4 stipulates that one party is declared missing and the other party shall be allowed to divorce if the other party shall file a divorce lawsuit.

Paragraph 5 stipulates that after the people’s court’s decision is not allowed to divorce, the two parties have separated for another year. If one party filed a divorce lawsuit again, divorce shall be allowed.

25

What are the limits of the law on prosecution divorce?

According to Article 1082 of the Civil Code, the woman shall not propose a divorce during pregnancy, one year after childbirth, or within 6 months after childbirth or within 6 months.except.

According to Article 124 of the Civil Procedure Law, the judgment is not allowed to divorce and mediate a good divorce case. There are no new situations and reasons, and the plaintiff will not accept it within 6 months.

26

Can a divorce case be tried open?

According to Article 134 of the Civil Procedure Law, the people’s court’s trial of civil cases shall be publicly carried out in addition to the state secrets, personal privacy or laws of law.Divorce cases and cases involving business secrets, if the parties do not apply for a public trial, they may not be tried publicly.Therefore, divorce cases should be tried publicly unless one party applies for disclosure.

27

Can the individual’s actual payment and interest in the pension account divide the common property as a husband and wife?

According to Article 80 of the Judicial Interpretation of Marriage and Family, pay the basic pension insurance premiums with the common property of the husband and wife after marriage. When the divorce, one party advocates the actual payment part of the marriage relationship in the pension account and the interestThe people’s court should support.

28

The biological father and stepmother divorce, or the mother -in -law divorced from the stepfather, who raised the minor children?

According to Article 54 of the Judicial Interpretation of Marriage and Family, when the biological father and stepmother divorced or the biological mother divorced, if the stepfather or stepmother did not agree to continue raising, the biological father or mother should be raised by the stepfather or stepmother who had been raised.Essence

29

Can you appeal if you are not convinced to judge the first instance of the divorce case?

Can.The case where the first trial was not allowed to divorce. After the appeal, the People’s Court of the Second Trial believes that the divorce should be judged, and it may be based on the principle of voluntary of the parties and mediation with children’s support and property issues.If the parties agree that the People’s Court of the Second Trial will be tried together, the People’s Court of the Second Trial may judge.

30

How to determine the jurisdiction of the court?

According to Article 12 of the "Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China": one case that one husband and wife have left the residence for more than one year, and the other party sued the divorce, which may be under the jurisdiction of the plaintiff’s residence.

The husband and wife left the residence for more than a year. The case where one party sued the divorce was under the jurisdiction of the people’s court of the defendant. If there was no frequent residence, the plaintiff was jurisdictional when the defendant’s residence was resident.

31

How should the property formed during the time of cohabitation should be divided?

(1) The salary, bonuses and production, operations of one party during the cohabitation period, and the legitimate income obtained by the inheritance, gifts and other means, in principle, owned them.

(2) The two parties have the property or the income obtained by the joint operation during the cohabitation period.Enjoy rights.If it cannot be found, it is deemed to be shared by the shareholding, and it is divided according to their respective investment shares.Those who cannot determine the capital contribution shall be deemed to have an equivalent amount.

(3) For the marriage that has been declared invalid or revoked, the property obtained during the time of the parties shall be dealt with according to the joint.However, there is evidence to prove that it is owned by the parties or shared by sharing.

32

What should I do if I am involved in extramarital affairs?

(1) Some spouses give or agreed to the third party property. If they regret the return of the gift, or the third party requires the performance of the gift, it will not be supported.

(2) If a legitimate marriage spouse is refunded on the grounds of infringing the joint property rights of the husband and wife, it should be supported.

33

The man found that the children who have been raised for many years are not their own biological, can they claim to compensate for losses to the woman?

Can.The woman deliberately concealed the fact that the child had no parent -child relationship, so that the man actually fulfilled the support obligations and constituted fraudulent raising infringement. The man requested the retention fee for returning expenditures and compensating for mental damage to place. Generally, he should generally support it.

34

When the two sides have not reached an agreement on the child care of the children, what is the court to deal with it?

According to Article 39 of the "Opinions on Further Deepening the Reform of Family Trial and Work Mechanism (Trial)", the parties have not reached an agreement on the child support of their children, and insisted on not asking the people’s court to deal with their child support issues, and the judgment is not allowed to divorce.

35

Can the grandparents, grandparents, brothers, and sisters of minor children sue to ask for the support for the husband and wife to return to the repayment for one or both parties?

Can.The grandparents, grandparents, brothers, and sisters who are minors or children who cannot live independently, if the husband and wife who have not fulfilled the ability to support the support ability to fulfill the support obligations, the prosecution requires the husband and wife to return to the maintenance fee paid by the couple or bothYes, it should be supported.

36

In what situations, if the child requires a affordable father or mother to increase the support, should the people’s court be supported?

According to Article 58 of the Judicial Interpretation of Marriage and Family, if a parent or mother who has one of the following situations and children who have the ability to have a burden is increased, the people’s court shall support:

(1) The amount of the original raising fee is not enough to maintain the actual living level of the local area;

(2) Due to the illness and school of children, the actual needs have exceeded the original amount;

(3) There should be an increase in other legitimate reasons.

Referring to the above provisions, the promise of divorce does not require the other party to bear the child’s support fee. After the divorce, if the divorce is prosecuted in the name of the child, the other party is generally not supported.However, the serious changes in the economic conditions of the child directly to support the children are not enough to maintain the local general living standards of the children, or the cost of life, education, and medical care of children’s life, education, and medical care.

37

Can my grandparents and grandparents exercise the right to explorate the intergeneration?

The Civil Code does not specify the right to explorate the intergeneration.According to Article 3 of the "Eighth National Civil Commercial Trial Conference (Civil Part) Minutes", the grandchildren and grandchildren who have died or have the obligations of their parents or their parents who have died or their parents have not fulfilled their parents.Obligations for raising, the right to regularly visit the grandson and grandson and grandson should be respected and have the right to obtain judicial protection through litigation.Therefore, in accordance with the principle of consistent rights and obligations, the grandparents and grandparents who meet the above conditions can advocate regular visits to grandson, grandson and children.

38

Parents and children sign an agreement to exempt their children’s support obligations. Can they ask their children to fulfill their support obligations afterwards?

Parents are the legal obligations of their children, and parents and children cannot relieve the legal rights and obligations through the agreement.

39

If the two parties sign an agreement to give their children abandoning the family’s common property and inheritance as a condition to exempt their support obligations, what should I do?

Children’s abandonment of the family’s common property and inheritance are their punishment for personal property rights. There is no invalid situation, and the law recognizes its effectiveness.With the condition of abandoning the family’s common property and inheritance as the condition of the child’s abandonment obligations, the agreed violation of the laws of the law should be invalid. If the parents ask their children to fulfill their support obligations afterwards, they shall be supported.

40

Parents have not fulfilled the obligations of support. Can children ask for relief obligations?

Generally do not support.However, parents have severe family violence, abuse, abandonment, and intentional crime. If the child requires the exemption of support obligations, it should be supported.

41

It is agreed that one party will have an extramarital affairs, family violence, and gambling behaviors. Can they abandon the common property agreement when they divorce? Can it be the basis for the referee?

cannot.However, when dividing the common property of the husband and wife, factors such as the fault of the parties should be comprehensively considered, and the non -fault -free couple should take care of the interests of the two sides as appropriate.

42

The divorce agreement involves the provisions of the children’s gifts. Can the gift from the gift after the divorce have not transferred the right to the property as the application?

The divorce agreement is an organic whole formed by the uncle and the pros and cons of the husband and wife, after considering the advantages and disadvantages, and it is formed by the termination of the marriage relationship. The contents of various contents are independent and mutually dependent.The decisive factor of the relationship was lifted.Therefore, after the divorce, the gift of the gift of property has not been transferred to the property rights, and the application for the revocation of the divorce agreement involving the provisions of the children’s gifts will not be supported.

43

One of the stocks purchased by the husband and wife before marriage appreciate, can the husband and wife ask for a differential value -added part?

After the marriage, the stock account did not operate. The stock was appreciated due to changes in the market. This value -added is a natural value -added. The value -added is the personal property of the husband and wife.

If it is operated, this value -added is active value -added, and the value -added is the common property of the husband and wife.44

After marriage, the amount of payable payments and relative property appreciation parts will be compensated by one party to the other party. How should the compensation amount be calculated?

Calculation of compensation amount: Total principal and interest in repayment after marriage ÷ (house price+total loan repayment interest at the time of purchase) × house price when divorce ÷ 2.

45

Parents invested real estate for their children. Afterwards, they required to return the capital to the reason for borrowing. What should I do to deal with the money?

Parents cannot provide sufficient evidence for the funding of the capital to prove that the nature of the capital is in a state of authenticity, and the parent shall bear the responsibility that the parent shall not be able to proof, and determine that the capital contribution is a gift to the children.

46

The insured and the insured are all couples. How should the insurance policies of the personal insurance contract be handled in the divorce case?

First of all, it should be resolved.If the negotiation is not possible, if the insured is unwilling to continue the insurance, the cash value of the insurance policy refunded by the insurer shall be handled as a joint property of the husband and wife; if the insured is willing to continue insured, the insured shall pay half of the cash value of the insurance policy to the other party.

47

After the divorce, the husband and wife of the heir to give up the inheritance. Can the husband and wife claim that the inheritance is invalid or compensate the losses?

As the heir husband and wife, the punishment of the inheritance right does not need to obtain the consent of the other party.Another party that the husband and wife advocate that the inheritance of inheritance is invalid or compensation for losses, and it is generally not supported.If the husband and wife’s proof proves that one of the couple as the heir to abandon the inheritance right and not fulfill its legal obligations, the rights and interests of their rights and interests shall be supported, and their claims on giving up the inheritance of invalid or compensation shall be supported.

48

What are the considerations that can be used as a consideration of debt that exceeds the "family daily life needs"?

The following situation can be used for reference:

(1) The amount of debt is significantly exceeded that the daily consumption level of the debtor or the family of ordinary residents;

(2) In the process of debt, in the process of inconsistent affection, separation, divorce or divorce litigation of the debt;

(3) Creditors know or know that debtors are still in debt for illegal and criminal activities such as gambling, drug abuse;

(4) The creditor knows that the debtor’s large debt cannot be repaid, and he continues to borrow.

49

What are the considerations that can be used as a consideration for the identification of debt for "the husband and wife live together and the production and operation together"?

The following situation can be used for reference:

(1) During the debt -raising period, the family purchase of large property or there is a large amount of expenses, and the couple cannot explain the source of funds;

(2) Debt is used for investment and business matters jointly engaged in both husband and wife;

(3) The debt is used for investment and business matters engaged in unilaterally in the debtor, but the debtor’s spouse shares investment operating income.

50

What are the factors that can be used as a consident for the debtor’s personal debt?

The following situation can be used for reference:

(1) During the debt period, the family has not purchased the property or exists in large expenses;

(2) In the process of debt, during the process of uncomfortable relationships, separation, divorce or divorce litigation, the debtor’s spouse has a stable income and can maintain normal family expenses;

(3) Debt use points to the debtor to engage in illegal and criminal activities such as gambling, drug abuse;

(4) Debt use points to the debtor’s unilateral burden on activities that are unilaterally lived by the family and the common production and operation, if there is no paid guarantee, etc.;

(5) The debtor spouse is completely unaware of the investment operation of the debtor and does not enjoy investment in investment.

Attached::

The Civil Code about divorce regulations

Civil Code on the Relevant Rules of Relevant Judgment of Divorce Damage Compensation

Civil Code Marriage and Family Judicial Interpretation (1)

Source: Home of Legal Affairs

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