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Part Ⅰ What is the statutory standard for the court to make a divorce judgment?
Criterion adopted by the court to judge the divorce refers to the standards the court must live up to as conducting the divorce case. Based on the article 32 of Marriage Law, the divorce judgment could be adopted on the following five conditions:
① Bigamy or cohabit with the person who has spouse;
②Family violence or abuse and desert the family members;
③ Incorrigible evil practice such as gambling and drug taking;
④ Make the separation over two years due to the incompatibility;
⑤Other conditions which cause the breaking up of conjugal relation.
One party files a divorce lawsuit as opposite party was claimed to be missing. Under such condition, the divorce shall be approved.
As specified by the Marriage Law, the divorce must be approved for the conditions as per stated above.
In addition, fourteen conditions are listed as the divorce approval on the basis of Specific Suggestions of Supreme People’s Court for Divorce Cases issued by the Supreme People’s Court on November 21, 1989.
As suggested by the Supreme People’s Court, the divorce judgment shall be defined on the basis of emotional relation between both parties. Such emotional relation shall be evaluated from such aspects as marriage basis, conjugal relation after the divorce, divorce causes and current conjugal relation. As specified by Marriage Law and trial practice, the following conditions could be regarded as breaking up of conjugal relation. The divorce could be approved after the mediation is failed.
①One party is unable to conduct he sexual behavior due to the disease or physical defects that are forbidden to be married. Meanwhile, such divorce could not be treated.
②Marriage without sufficient evidence, therefore, the harmonious conjugal relation was failed to be established.
③Covering the mental order up prior to marriage and such mental order failed to be treated or mental disorder occurred during conjugal relation and failed to be treated.
④One party got the marriage certificate by cheating.
⑤The cohabitation is not occurred after the marriage registration and reconciliation is impossible.
⑥One party brought up the divorce due to arranged or mercenary marriage or conjugal relation is not established even though both parties have cohabited for many years.
⑦Separation has lasted for three years due to incompatibility, or separation lasted for another year after the disproval judgment by the court.
⑧One party committed adultery and has no repentance or after criticism，the party who engaged in the illegal martial relation still refused to get back to the conciliation.
⑨One party asks for divorce due to bigamy of opposite party.
⑩One party was indolent and engaged in bad habits so as to affect the normal conjugal relation.
○11One party was sentenced with long-term imprisonment that seriously affected the conjugal relation.
○12 One party has been claimed to be missing for two years and confirmed by announcement.
○13One party was abused and deserted by opposite party or kinfolk thereof who has no repentance.
○14The conjugal relation was broken up due to other reasons.
Part Ⅱ How can the plaintiff make the court believe the mutual affection no longer exists?
(1) Based on facts
The judge will make the divorce adjustment on the basis of whether the case could be approved legally.
(2) Based on attitude
If the party involved is dubious of divorce; the court may give several months to the party involved for re-consideration.
General speaking, the divorce is hard to be approved due to the conditions as per stated above. For many cases, the judge does understand the conjugal relation could not be continued but the divorce could not be approved due to the lack of evidence. Currently there is a fixed mode for divorce judgment. For instance: the first divorce adjustment is generally unable to be approved because even though the judge knew the case shall be approved, but the evidence is insufficient. Therefore, if the judge insisted to make an approval, the appeal for second judgment must occur. So it may affect the performance of the judge. So, for the judge disproval may avoid the troubles. There are two reasons for such situation:
Firstly, the court was affected by such concept as the marriage may have something to do with the social stability and conjugal relation shall be kept as much as possible.
Secondly, the judgment mode in China sticks to the principle of handling the case “according to the law” rather than “according to test case”. Therefore, sometimes “take law as criterion” may show stiff and lack of sensibilities.
Part Ⅲ How can the both parties tackle the psychical hostility and tactics between them in the process of divorce?
As the society is developing, the rate of divorce is also rising. According to the latest statistics, the proportion between marriage and divorce is 1: 25 in Beijing in 2003. There is no winner in the campaign of divorce, but it is an enduring campaign that is encircled with the issues of properties and interest conflicts. Therefore, over half a year is necessary for the end of this campaign of divorce. During this period, delicate psychical changes may occur for each party.
Initial stage: as divorce is put forward by one party, the other party is unable to face the actuality calmly and objectively.
As one party puts forward the divorce, it is always unable to be accepted by the opposite party, especially for the case in which the male party asked for divorce. Therefore, one party may out forward harsh conditions for the distribution of property as conducting the divorce, while the party who asks for the divorce may agree due to the divorce purpose. Such actions could obtain the understanding of the female party who think it is quite normal or it shall be the compensation for divorce. So the result is that the more yield the more press, so that the mediation of divorce may be at a deadlock.
Middle stage: one party engages a lawyer to negotiate with the opposite party who also analyzed the facts calmly and objectively.
After a period of deadlock, one party of the conjugal cannot stand the mental suffering due to the “cold war”. Therefore, going to law is a necessary way to solve the problem. The lawyer one party engaged may make a call to the other party who can understand that he or she may go to law, which is an unfavorable sense for most Chinese. In this case, the intervening of the lawyer may form the pressure on the opposite party. During this period, the lawyer will play a role on the mediation. Sometimes it is helpful, but only 10% of the mediation could be achieved successfully in the end. Due to the big difference between the two parties involved, 90% thereof have to go to law for the divorce lawsuit.
Later stage: going to law, in this case, the divorce mediation may be reached or divorce judgment will be issued by the court.
In case the lawyer found that the mediation is useless, the lawsuit is recommended. The distribution of properties will be closely connected with the collection of evidence and the application of law items. Generally speaking, the experienced lawyer can determine the result after the first judgment. So, in this case it is easy to reach the agreement between the two parties because the impracticable request put forward by the opposite cannot be established. Therefore, he or she may consider the mediation, while the party involved also hopes the case could be tackled as soon as possible. So the agreement is reached. But due to the different cases and the attitude of the parties involved, it still needs the court to decide the result. If the defendant turned down the divorce and the court may not approve the divorce in case the defendant is not in the scope as specified by the article 46 of Marriage Law of the P.R.C.
Terminal stage: second lawsuit or divorce by agreement after the first lawsuit
If we say the plaintiff is more unfavorable than the defendant at the first lawsuit, then for the second lawsuit after six months the situation changed. So, the second lawsuit may be approved by the court. At this stage, due to the little chance for the plaintiff to yield on property, the defendant has to face the situation of the divorce was approved and the property may be distributed. Therefore, the mediation may be carried out and 40% of the party involved may reach an agreement. So we think the property rather than the conjugal relation is the focus of the second lawsuit.
As per stated above, if the conjugal relation cannot be lasted, the party involved shall evaluate the situation calmly and objectively, so as to safeguard the interests and rights thereof as much as possible, so that the favorable property distribution and divorce form could be reached.
Part Ⅳ How can the couple deal with the public house after their divorce?
One of the major disputes in divorce cases is the issue concerning the division of house property. Especially for Shanghai and Beijing, which are the places where one-inch land is equal to one inch of gold. House property is always a big problem for the ordinary people. Therefore, the division of house property is the focus as conducting the divorce.
With the deepening of municipal housing development, most public housing is transferred into the housing with ownership. However, there are still a few ownerships of the public housing are not sold out. So it is necessary to study the division of public housing.
As implied by the name, “public housing” refers to the houses owned by the government. Therefore, the user only enjoys the right of using. As conducting the divorce case, the court only judges the using right of the house rather than the ownership thereof. On February 5, 1996 the Supreme People’s Court issued Interpretation on Using and Leasing of Public Housing during the Handling of Divorce Case, which specifies the division of public housing’s right of use. However, after the implement of new Marriage Law in 2001, the People’s Supreme issued two Judicial Interpretations concerning the Marriage Law, especially the second Interpretation (II) specifies that the property before the marriage shall not be transferred as the communal estate. Therefore, some articles in Interpretation on Using and Leasing of Public Housing during the Handling of Divorce Case conflicted with the new Marriage Law. The original articles shall be invalid. So we should follow the principle of “specific situation shall be analyzed specifically” the following cases could be handled by the court as considering the concrete circumstance:
① Right of lease was obtained before the marriage, the house shall be the property of the party who enjoyed such right no matter the duration of conjugal relation. As specified by the article 19 of judicial interpretation of the Marriage Law, the property owned by the party before marriage shall not be transferred to the communal property due to the conjugal relation.
② One party rent the house of the work unit, as conducting the divorce; both parties of the conjugal relation were the staff of the work unit. In this case, the right of use is still enjoyed by the original party because only identifications of both parties changed, which shall not affect the right of use.
③ One party obtained the right of use. After the marriage, both parties of conjugal relation bear the fees paid for the right of use. So, in this case, the right of use is still enjoyed by the original party because if the right of use is regarded as the communal estate, it may cause some problems, for instance: if one party has paid 99% of the loans, only 1% thereof was paid by both parties of conjugal relation. Obviously it is unfair to the party who borne most of the loans. So, I think the right of use shall be enjoyed by the original party who shall pay the other party half of the amount that is used as the loan payment.
④ The right of use was obtained before the marriage, and then the new right of use was obtained due to the demolition of original premises. Based on Regulations on the Municipal Housing Demolition Management, the ownership transfer shall be handled by the landlord for the person who rent the house. So, as per the current stipulation, the right of use is still enjoyed by the original party, though such right of right was obtained after marriage.
⑤ It is easy to interpret the communal housing built or purchased jointly by the work units of both parties of conjugal relation.
⑥ One party returns the house rented before the marriage to the work unit or the house was exchanged by the other party’s unit. For this case, it could be handled according to article 4. In fact other condition may exist such as the right of use is transferred to the currency or the stocks and fund. So, if such transfers are based on the original right of use, such estates shall be possessed by the party who has the right of use.
⑦ Both Parties rent the public housing before the marriage respectively and make a merge after marriage.
⑧ Other conditions that shall be regarded as the right of use possessed by both parties. This is a flexible article, which makes the court judge according to the actual condition.
This judicial interpretation defines the principle for the handling of right of use of public housing.
① The judgment shall consider the party who brought up the children. As conducting the divorce, the children are the biggest victims, so in a bid to give the children stabile living circumstance, the house shall be given to the party who raised the children. Please notice that the children under the age of two shall be raised by the female party.
② As both parties are at the same condition, while the female party has the edge. That’s not because the “lady first”. Generally speaking, female party will suffer more than the male party. Currently, three age brackets accounted for the high risk of conducting the marriage: first, the newly married couple within a conjugal relation of two years. Second, the couple who are at the age of around 35, due to the successful career, the male party may engage in extramarital relation. Third is for the couple who are at the age of 55-60. Especially for the second stage which has the highest risk of divorce rate.
③ The handicap and the poor shall be taken into consideration. Maybe it’s difficult to decide the poor living standard. I think it could be considered from such aspects as the income of both parties and the local living standards.
④ The right of use shall be given to the party who is “no fault”. What does it mean “no fault”? Maybe it is hard to define. So we could interpret it based on the traditional notion for the morality. For instance, as specified by article 46 of the Marriage Law, one party has an extramarital relation or has the bad moral characters.
⑤ The suggestions offered by the landlord shall be taken into consideration.
⑥ Other Methods:
First, as agreed on by both parties, the right of use could be obtained by means of bidding.
Second, as one party claimed the right of use, the relevant evaluation organ may be asked for the evaluation of the compensation as the house was demolished. Then, the party who obtained the right of use shall pay the other party the compensation that is equal to half of the evaluated value thereof.
Third, in case no party claimed the right of use, the public housing’s right of use could be auctioned as applied by both parties and approved by the organ that has the right of use thereof.
Fourth, neither party claimed the right of use of the public housing. Meanwhile, the organ that has the right of use thereof is unwilling to make the transfer to the third party. For this case, the right of use thereof could be given to the party who raised the children and the party who raised the children shall pay the other party the compensation that is equal to half of the evaluated value thereof.
Part Ⅴ If the court has one party to use the public house, will the other party get some compensation?
It shall be based on the actual conditions:
(1) There is no compensation for the party who has not the right of use.
(2) If the right of use is shared by both parties, the party who obtained the public housing shall give the other party appropriate compensation.
How to define the standard for “appropriate compensation”? The Judicial interpretation for this condition is still a blank. According to the practice, if the public was demolished, the lessee will be given 80% of the demolished fees at maximum as the compensation. Therefore, I think the lessee may pay other party the compensation that is equal to half of the fees for demolition. Such fees are determined according to the various areas where the house sits and other specific conditions.
Part Ⅵ If the couple owns part ownership of the public house, how will they divide it after divorce?
The party who obtained the “partial ownership” shall pay the other party the compensation that costs half of the value of ownership according to similar housing rate issued by the related departments of the local government. In case such ownership is claimed by both parties, the bidding could be adopted for the possession of the house.
It shall be pointed out that the above-mentioned interpretation shall be the judicial interpretation of 1990s. As per the Article 21 of latest Judicial Interpretation (II), the People’s Court shall not make a judgment on the right of use under the authority of which party in case such right of use is not obtained or completely gained by either party. After the housing ownership license is issued, any party herein may have the right to file a lawsuit at the court.
Part Ⅶ How will the court divide the house which the couple haven’t gained the whole ownership?
As per the Article 21 of Judicial Interpretation (II), the People’s Court shall not make a judgment on the right of use under the authority of which party in case such right of use is not obtained or completely gained by either party. After the housing ownership license is issued, any party herein may have the right to file a lawsuit at the court. This type of housing includes partial ownership house bought by the party involved or the houses were bought but the ownership was not handled.
Part Ⅷ How will the court divide the house which the couple have already gained the whole ownership?
One party obtained the ownership license before the marriage. So, no matter the amount for house purchasing is paid, the ownership shall belong to the original party, while the other party has the right to claim the compensation due to the payment for the house as the communal estate.
Part Ⅸ How will the court divide the house which the couple bought after their marriage?
First, the ownership shall be defined. The house shall be regarded as the communal estate no matter the house property license was at either party herein.
Second, the cost of the house shall be defined. Such cost shall be evaluated as the current rate rather than that calculated as per the purchasing contract.
Third, distinguish from the interests &rights and the liabilities. If the loan was involved, the unpaid amount shall be deducted. For instance, one house costs 1 million Yuan. The first payment was 0.3 million Yuan and the loan was 0.7 million Yuan. Therefore, the current cost was 1.2 million Yuan. The unpaid amount accounted for 0.6 million Yuan. So, after deduction, 0.6 million Yuan could be divided as the communal estate. The party who gained the ownership shall pay the other party 0.3 million Yuan and bear the unpaid loan.
Part Ⅹ How will the court divide the house which one party bought and got the certificate of ownership to the house property before their marriage?
According to the relevant laws and regulations, if one party of the conjugal relation obtained the ownership of the house, the appreciation as per the principle of right of article shall be possessed hereby.
Part Ⅺ How will the court divide the house which one party paid some of the money(including first-term loan) and got the certificate of ownership to the house property before their marriage while continuing to pay the mortgage after their marriage?
Though the house property was bought by one party before marriage, unless otherwise particularly specified, the appreciation and loans shall be regarded as the communal estate. No matter the loan is paid by one party or both parties; it shall be regarded as the communal estate. Of course, if one party can proof the amount for the payment of loan is part of the property prior to the marriage, the amount shall not be regarded as the communal estate.
Part Ⅻ How will the court divide the house which one party paid some of the money before their marriage while continuing to pay the mortgage and got the certificate of ownership to the house property after their marriage?
Some one holds the opinion that the house property license is the certificate for the right of article, but it does not mean that the house property obtained after the marriage is the communal estate. It still shall be divided into the property prior to or after the marriage. After all, rights and interests concerning the house property were obtained before the marriage. Therefore, even the house property license was obtained after the marriage, the personal property before marriage shall not be transferred to the communal estate.
Others think if one party paid some of the money before their marriage while continuing to pay the mortgage and got the certificate of ownership to the house property after their marriage, the house will be transferred to the communal estate and should be divided when divorce.
People’s Courts in different cities hold different opinions as listed above and they haven’t reached the same opinion yet.
Part ⅩⅢ How will the court divide the house which one party paid some of the money before their marriage while continuing to pay the mortgage after their marriage and the house increased in value without the certificate of ownership to the house property when divorce？
In accordance with the article 21 of the Judicial Interpretation (II), the People’s Court will not judge the ownership of the house before the house property’s ownership was not completely obtained by both parties of conjugal relation. After the house property was obtained, any party of the conjugal relation could file a lawsuit to the court separately. Part ⅩⅣ How will the court divide the house which the couple’s parents paid some money for it?
Based on the article 21 of the Judicial Interpretation (II):
① Unless otherwise particularly specified, the capital put up by the parents before the marriage shall be regarded as the bestowment to the children;
② Unless otherwise particularly specified, the capital put up by the parents before the marriage shall be regarded as the bestowment to both parties of the conjugal relation.
In fact, sometimes as conducting the divorce, one party may put forward the money for purchasing the house was borrowed from rather than bestowed by the parents and show the IOU. For such case, the court may not conduct the investigation if the other party didn’t admit it. Because the creditor was unable to participate in the lawsuit as the third party, the court suggests the creditor could file the lawsuit as a separate case as handling the division of the house.
Part ⅩⅤ How will the court divide the house which there is a third person’s name on the certificate of ownership to the house property?
For instance, the house property license includes the names of the children and the parents. For this case, the court will not add the third party into the case, but as requested by the party involved, the division of house property may be handled as a separate case or as requested by the party involved, the case was suspended and handled as a separate case, and then analyzed the rights and interests of both parties according the judicial result.
Part ⅩⅥ How will the court divide the house which the couple both paid for it before their marriage while there’s only one party’s name on the certificate of the ownership to the house property?
Due to some reason, the house property license only includes the name of one party as purchasing the house before the marriage though the capital for purchasing the house was put up by both parties. As conducting the divorce, one pay did not admit that the other party also made the payment for the house. If one party cannot proof the payment, the court was unable to judge the party who has the license to compensate the money to the other party. Therefore, all necessary procedures shall be handled before the marriage so that the disputes as conducting the divorce could be avoided.
Part ⅩⅦ What are the regulations made by the High People’s Court of Shanghai concerning the division of house property?
On September.7.2004, Shanghai Supreme People’s Court issued the reference HGFMY [2004] No.25, namely the Interpretation (I) (II) of Judicial Interpretation of the Marriage Law referred by Shanghai Supreme People’s Court specified the division of house properties. Now we list some articles thereof as follows:
The article 4 of the Interpretation: during the divorce lawsuit, the public housing’s right of use was owned by one party before marriage or parents thereof. After the marriage, the ownership of public housing was purchased by the communal estate. So, how to handle the right of use thereof?
Answer: As specified by article 19 of Judicial Interpretation, the public house shall be regarded as the communal estate in case it was rent by one party and bought by both parties after marriage. However, in Shanghai, as the right of use was transacted, it does have the value. Therefore, if it was not considered as divide the house property due to the transfer of ownership from right of use thereof, the just and sound could not be shown. In practice, we can handle it according to the following conditions:
① In case one party obtained the right of use before the marriage via the welfare policy and then the ownership thereof was purchased via the communal estate. In this case, the exchange value of the original public house could not be reflected. So, as dividing the ownership of the public housing, the right of use thereof could not be considered.
② The right of use was obtained by one party via personal property before the marriage, and then the ownership of the house was obtained by both party of the conjugal relation via the communal estate. In this case, the amount paid for the right of use shall be given to the party who paid for it, while the amount for ownership shall be regarded as the communal estate.
③ In case the right of use was owned by the parents of the party in conjugal relation prior to the marriage, and then the ownership thereof was paid by both parties. So, the division of right of use could be subject to the article 22 of the Judicial Interpretation (II), and regarded as the bestowment of parents. As conducting the divorce, it could be regarded as the communal estate.
The article 5 of the Interpretation, is the capital put up by the parents for purchasing the house regarded as the bestowment? After the marriage, whether the name list in house property shows the payment of parents is part of the bestowment offered to the party involved herein.
Answer: in accordance with the article 22 of Judicial Interpretation (II), the capital put up by the parents for the children to buy the house shall be regarded as the bestowment, while in case the relation of debit and credit sides are formed, it shall not be applicable to this article. Of such evidence shall be given before the divorce lawsuit.
In practice, if the amount offered by parents is listed under the name of the party thereof, we should say it could be regarded the bestowment while such amount was listed under the name of spouse of the party thereof, the amount shall be regarded as the communal estate unless relevant evidence could be proofed.
In addition, the Judicial Interpretation (II) shall also be applicable to other belongs besides the amount for purchasing the house.
The article 6 of the Interpretation: How to handle the house which was paid by one party via mortgage loan before marriage, and then such loan was paid by both parties of conjugal relation?
Answer: in case the ownership was obtained by the party who used the mortgage loan, the house shall be the personal estate of the party, and while the party shall return the other party the amount that was paid for the mortgage loan during the conjugal relation. Meanwhile the unpaid amount shall stilled be borne by the party who used the mortgage loan.
In case the spouse of the party who registered in house property license could proof the house was paid jointly by both parties before marriage, the house shall still be regarded as the personal property. However, the amount has been paid by the spouse for the first payment and loans shall be returned to the spouse.
In case the spouse could proof that the house was regarded as the common property before the marriage, the house shall be regarded as the communal estate even though the ownership thereof was under the name of one party. In addition, the mortgage loans shall be regarded as the common debt. Meanwhile as dividing the house, such facts as the proportion of the amount paid by both parties, and the duration of conjugal relation shall also be considered.
Part ⅩⅧ What’s the opinion of the High People’s Court of Jiangsu Province concerning house property?
The High People’s Court of Jiangsu Province holds the idea that in case the ownership was obtained by the party who used the mortgage loan, the house shall be the personal estate of the party, and while the party shall return the other party the amount that was paid for the mortgage loan during the conjugal relation. Meanwhile the unpaid amount shall stilled be borne by the party who used the mortgage loan.
In case the spouse of the party who registered in house property license could proof the house was paid jointly by both parties before marriage, the house shall still be regarded as the personal property. However, the amount has been paid by the spouse for the first payment and loans shall be returned to the spouse. If one party asks for the interest due to the increase of the house value, the court shall support the requirement.
The High People’s Court of Jiangsu Province thinks that whether the house is common property depends on the time actually acquiring the ownership of the house. We consider the above regulations to accord with the principle of jus rerum.
Part ⅩⅨ Will one party gain some interest from the house property only if his or her name is on the certificate of the title to the house property?
For the divorce case, the division of house is always the focus of the party involved. According to the cases in practice, as long as one’s name is on the certificate of the title to the house property, he or she will gain some interest from the house property.
Relevant Cases:
Mr. Zhang and Ms. Li met in 1995 and got married with each other in 1997. After marriage, both parties intended to buy the house. Due to the low incoming and limited savings, the parents of the male party decided to put up some money for the house purchasing.
In August, 1999, Zhang’s father, Zhang and Li signed a pre-house sales contract with the real estate company for the purchasing of an apartment’ which was located at XX Residential Area, In XX Avenue, Shanghai. The apartment covers a floor space of 101 square meters. Total amount thereof accounted for 450,000 Yuan. As signing the pre-house sales contract, Zhang was unavailable. Therefore, Zhang signed the contract for his father.
Total rate of 450,000 Yuan includes:
I. As signing the contract, the real estate company was paid 50,000 Yuan by Zhang and Li. The payers on the invoice were listed as Zhang, Zhang’s father and Li.
II. Zhang’s father remitted 100,000 Yuan to the real estate company. Such money was obtained from the relocation expense there of in 1997.
III. The left 300,000 Yuan was borrowed by Zhang’s father from Industrial & Commercial Bank of China, Shanghai Branch.
The apartment was checked and accepted in May 2005.
In January 2004, Li filed a divorce lawsuit to Shanghai XX District People’s Court and put forward the division of the apartment. In April 2004, the court approved the request for divorce, but informed the parties involved that the division of apartment should be handled as a separated case due to the involvement of the third party.
In November 2004, Zhang Ming and Zhang’s father filed a lawsuit to Shanghai XX District People’s Court to request the division of the commercial housing. They claimed the apartment shall be sentenced hereto, and Li could receive a compensation of 200,000 Yuan.
As conducting the case, Shanghai XX District People’s Court authorized Shanghai XX Price Evaluation Center to evaluate the current rate of the apartment. The apartment was evaluated as 1,000,000 Yuan (including the decoration).
Based on the court hearing, Zhang’s father owed 220,000 Yuan to Industrial & Commercial Bank of China, Shanghai Branch as of February 30, 2005.
Focal point
The plaintiffs claimed the pre-house sales contract was signed by the names of the plaintiffs and the defendant. Therefore, the house property license shall be regarded as the communal estate.
The defendant: Li claimed though the apartment was purchased by the names of the three people, Zhang’s father was unavailable as signing the contract. Meanwhile, the spouse of Zhang’ father explained the special deposit receipt for first payment was bestowed by Zhang’s father to Zhang and Li. Therefore, the apartment shall be regarded as the communal estate.
The sentence of first instance
Shanghai XX District People’s Court pointed out the special deposit receipt shall be only applicable to the purchasing of the unoccupied commercial residential building. As purchasing the house via special deposit receipt, the relocated person must be the purchaser listed in the house sales contract. For this case, both the spouse of Zhang’s father and the attorney thereof clearly showed that such special deposit receipt was the bestowment to Zhang and Li. Therefore, the house property shall be regarded as the communal estate of Zhang Ming and Li.
The sentence of second instance
After the first instance, the plaintiffs appeared to the higher court. The petition for appeal claimed that the first payment and Zhang’s father’s portion of the house property were not bestowed to Zhang and Li. Therefore, the first instance was not impartial.
The defendant Li argued Zhang’s father indicated the first payment was stowed to Zhang and Li at many occasions. Now he went back on the promise, the court shall not support it and keep the sentence of the first instance.
The second instance court pointed out the pre-house sales contract was signed by the names of three people and the house property was handled according to the law. Based on the laws of the state, the formulation, modification and transfer of immovable shall be effective via the public announcement. Now the ownership of the house property has been confirmed via the registration of national real estate department as the common property of the three people. For immovable, the confirmation of rights shall be effective trough public announcement. Therefore, the possession of the first payment has nothing to do with the obligee of the house. Meanwhile, the amount proportion put up by the purchasers were determined, so, the amount for the purchasing the disputed house shall be regarded as the jointly payment. As per the law, the person who shared the property shall be entitled with the common rights and obligations. As the shared relation was ended, the property shall be handled according to the equal principle in case the agreement was unavailable. Meanwhile, such factors as the contribution, living standard and proper demand of the person who shared the property shall also be considered. Whereas, the divorce has existed for Zhang and Li and Zhang Ming and Zhang’s father are set membership, the ownership of the disputed house shall be part of Zhang Ming and Zhang’s father. So, Zhang and Zhang’s father shall pay Li 260,000 Yuan as the allowance for the house.
The second instance indicated the facts investigated by the first instance were true, while the evidence for the confirmation of ownership thereof was insufficient. So, it shall be corrected.
Summary of the case
As the attorney of the Zhang’s father, I think the case was full of twists and turns. I was confident about the case, while I was astonished as the first instance was sentenced. Eventually the parties involved insisted to appear to the higher court and won the case. After studying the second instance particularly, what I had learned was summed up as follows:
(1). The house property license was the legal basis for the rights of the house. Unless otherwise particularly specified, the court highlighted the obligee shall be subject to t those recorded in the house property license.
(2). Even though one obligee who shared the house property failed to make the payment, the rights &interests thereof shall not be deprived in case the obligee’s name was recorded in the house property license. For instance, the male party added his father’s name in the house property license as purchasing the house after the marriage. Though male party’s father did not make the payment, he still enjoyed 1/3 of the house property.
(3). Though one obligee claimed the money put up hereby was bestowed to the other obligee (it does not refer to this case), the oblige still enjoyed the rights for the division of the house in case the name thereof was listed in the house property license. For instance, as purchasing the house after marriage, the father of the male party also put up the money for the house purchasing. Though the father thereof indicated that the money was bestowed to the male party or female party, he still shall be regarded as one of the obligees of the house in case his name was listed in the house property license.
(4). Unless otherwise particularly specified, the house property shared shall be divided in principle of equality. Meanwhile, the property source shall also be considered.
Part ⅩⅩ Which properties are common property when divorce?
As specified by the Article 17 of Marriage Law, the common property shall cover:
1. Wages and bonus;
2. Earnings from the production and operation;
3. Earnings from intellectual property;
4. The property from inheritance and bestowment except that specified by the item 3 of Article 18 (designated bestowment or inheritance);
5. Other communal estate.
Part ⅩⅩⅠ How will the court deal with the couple’s bank deposit?
The scope of bank deposit refers to that deposited by the name of one party or both parties of the conjugal relation. For other properties, the court is unable to handle them in the divorce case. For instance, the female party claimed that the male party made some deposits under the name of his mother and offers the court the bank account thereof, while the court will not accept such lawsuit due to the involvement of third party’s interests and rights. Therefore, the court may inform the female that the lawsuit shall be handled as separate case.
In addition, as handling the deposit of one or both parties, the inquiry is subject to the balance of the deposit except that the party involved asked for the investigation of the detailed information since the account open. If the transfer of fund can be found out by investigating the access details, the court could confirm the amount of the conjugal deposit rather than be scrupulous about the balance thereof. For instance, the male party asks for the investigation of the bank deposit of the female party at the bank of Shanghai. Even though only more than 100 Yuan was left in the account, three major withdrawals were carried out by the female party. The total amount accounted for about 100,000 Yuan. So, 100,000 Yuan rather than 100 Yuan shall be regarded as the communal estate except that the female party could proof this sum of money had been used for the maintenance of normal conjugal life.
Part ⅩⅩⅡ How will the court deal with the couple’s equity securities?
Shanghai is one of the two stock exchanges in China. So, the scalp stocks are prevalence in this city. The book before thereof specifies the solution in case the shares account of the opposite is unknown. If the account no of the securities is known, two amounts shall be considered. One is the total market value of the current shares that is as of the time of punching. The other is the amount in the capital account. Therefore, the total amount regarded as the communal estate shall include the market value of the shares and the amount in capital account. For instance, after marriage, the male party has 12 stocks that accounted for 330,000 Yuan and 20,000 Yuan left in the account. Therefore, the total amount regarded as communal estate shall be 350,000 Yuan.
Part ⅩⅩⅢ How will the court deal with the couple’s enterprises which are registered in a third party’s name?
As registering the company, some couples may use the name of third party as the shareholders of the company. So, the court will not handle the distribution of equities as one or both parties in conjugal relation ask for the distribution of equities. The court may inform the parties involved that the case shall be handled separately.
Part ⅩⅩⅣ How will the court balance the couple’s benefits when they have invested in some limited company?
(1)Both parties of the conjugal relation are the shareholders.
The court could make the judgment directly after the amount of equities are agreed by both parties or evaluated by relevant organs.
(2) One party of the conjugal relation is the shareholder, while the other is not.
Base on Article 16 of Judicial Interpretation (II):
①As agreed by both parties of conjugal relation, part of entire capital is transferred to the spouse of the shareholder. Such action was approved by over half of the shareholders. Meanwhile, other shareholders do not take the first refusal. So, the spouse of the shareholder can be the shareholder of the company.
②Both parties of conjugal relation agreed on the amount of capital, while over half of the shareholders disapproved of such transfer and agreed to purchase the capital to be transferred with the equal rate. The court may sentence the distribution of the equities to be transferred. In case the transfer and purchasing thereof were not approved by over half of the shareholders of the company, it shall be regarded as the transfer has been approved and the spouse of the shareholder shall be the shareholder of the company.
As involving the distribution of company equities, the divorce case may be a time and energy consuming work. Therefore, the case is complicated and the judgment shall be concluded after the resolution of the shareholders. The party involved may be hard to deal with such satiation, so the lawyer may play a role on it.
Part ⅩⅩⅤ How will the court cope with the company owned by the couple?
Couple Company, which means the shareholders of the company are merely the couple themselves, is common to see in our society. When facing divorce, the actual rate of cash investment is not the same as the company’s registration in the Administrative Bureau for Industrial and Commerce, for the registration is only the format requirement of the Administrative Bureau for Industrial and Commerce. In this sense, the company’s registration capital and its profits should be divided as common properties according to the couple’s actual declaration of intention.
When dividing the properties of the couple company, following issues shall be taken into account:
① If both parties are willing and have the ability to operate the company, together, the court may mediate between the couple or make an direct judgment..
② If both parties are unwilling to operate the company any longer, they may ask for the company’s liquidation and divide the company’s assets after its liquidation.
③ If one party is willing to run the company while the other party ask for the profit and capital of the company, they may transfer the unwilling party’s shares to a third parties and give the compensation according to the share’s par value. Or one party of the couple may hold dominant shares of the company while the other party holds less in order to operate the company normally.
Part ⅩⅩⅥ How will the court cope with the case that one party invest in some partnership?
It shall be said that the basic principle of the Article 17 of Interpretation (II) is the same as that of the article 16 of company equity. But due to the difference between the stipulations of Corporate Law and Partnership Enterprise Law, especially Corporate Law specifies the equity of the company could be transferred rather than withdrawal, while the capital could be withdrawn as specified by the Partnership Enterprise Law. Part ⅩⅩⅦ How will the court cope with the case in which one party establish an individual business?
Due to non-involvement of the interests of third party, this situation could be handled in a relatively simple way. As specified by the article 18 of Interpretation:
(1) In case one party asks for the operation right of the enterprise, the compensation shall be paid to the other party after the evaluation of the equity thereof.
(2) In case both parties ask for the operation right of the enterprise, the party who won the bidding shall pay the compensation to the other party.
(3) In case both parties are unwilling to operate the enterprise, the enterprise shall be liquidated. If the equity is available, it shall be distributed as the communal estate. Part ⅩⅩⅧ How will the court divide the car registered in both parties’ name?
If the divorce case involves the distribution of automobile purchased by the name of one party or both parties of conjugal relation, the current rate of the automobile shall be based on for the distribution. In case the current rate of the automobile is unable to be agreed on by both parties, the plaintiff may put forward the application to the court which authorizes the qualified organ to make the evaluation on the current rate of the automobile, and then the court may handle the case on the basis of evaluation. For example, one couple purchased a Buick sedan in 2001and the rate of the car was 250,000 Yuan (including license plate). In 2005 the couple got divorced and disagreed on the market rate for the sedan. The male party thought the price thereof shall be around 100,000 Yuan after the depreciation, while the female party thought the car shall cost 200,000 Yuan. Due to the big difference between the two parties, the plaintiff asked for the court to make evaluation on the cost of the car. According to the evaluation of the appraiser authorized by the court, the cost of the car shall be 180,000 Yuan. If re-evaluation was not put forward by plaintiff and defendant, the car shall be won by the male who shall pay 90,000 Yuan to the female party.
Part ⅩⅩⅨ Is the contract of loyalty between the couple valid?
The contract of loyalty may be an epitome of the status quo of how common the extramarital relations in the society. The emergency of the contract of loyalty is not playing to the gallery at all, but the last way the party without self-default has to go through.
The contract of loyalty usually contains the obligations between lovers or couples during their marital relation period. If either party has extramarital relation with a third party, he or she has to pay some compensation or liquidated damages to the opposite party.
The People’s Court in Changning District in Shanghai supported this kind of the contract in 2002, which raised controversy. Afterwards, some basic people’s courts support these contracts. However, whether the contract of loyalty is valid depends on the specific circumstance and we have to handle these cases carefully.
(1) Different views on the validity of the contract of loyalty
First, this kind of contract of loyalty is of no validity. Article 4 of the Marriage Law of the P.R.C states like this:” Husband and wife shall be truthful to and respect each other.” However, the article above is only a kind of declaration rather than the legal contract. This kind of contract may exert a negative impact on couples, which leads to an increase of this kind contract, raising the costs of marriages. On the other hand, this kind of contracts may destroy the basic trust between couples. In this sense, the contract of loyalty shall not be valid unless the situation accords with the laws.
Second, this kind of contracts is considered to be valid in the court and should be in the protection. Marriage of P.R.C give both parties the right to deal with their properties freely and the contract of loyalty embodies the law to some extent. For this reason, as long as the contract doesn't disobey any law or regulations, it shall be valid to the court.
(2) The trial institutions’ opinions on this kind of contracts
Take Shanghai for example, the High People’s Court of Shanghai consider the duty of loyalty to be moral duty rather than legal duty. In this sense, the courts in Shanghai may follow the below principles when dealing with this kind of cases:
① The People’s Court shall make the decision of nonsuit when any party file the case by the reason of disobey the article 4 of the Marriage Law and if the case has already been accepted, the court shall make the decision for dismissal.
② If one party sues to the court because of the opposite party’s breach of this kind of contract, the court shall make the decision of nonsuit.
③ Except for the article 46 of the Marriage Law of the P.R.C, the requirement for compensation as the result of the breach of the contract, the court shall make the decision of nonsuit.
④ The cases alike before will not be dealt with after being closed.
According to the principles above, the High People’s Court holds a negative opinion on the validity of the contract of loyalty. Although this opinion may be applicable only in local places, it may also show the tendency in these kinds of cases. In Beijing and some other cities still hold different ideas concerning these contracts. However, only after the Judicial Interpretation of the Supreme Court implemented, courts all over the countries may hold the same opinion in this kind of contracts.
(3) Although the contract of loyalty may not be the absolute assurance of the loyalty during the marital relations, yet it may show every couple a new way to a better marriage and protection of themselves.
The contract of loyalty may stand for a social progress, showing couples’ increasing demand of a better marital relation. However, both parties ought to hold a proper idea on this kind of contracts for these contracts may only be a kind of method or way to seek a better marital relation while it may not maintain the true love between both parties. It is of no use for people to purse some material goals though this kind of contracts.
Both parties shall never be too careful on dealing with this kind of contracts when facing divorce. If one party has self default in the marital relation, it is smart for the opposite party to ask for a bit more compensation in the process of divorce. The solution above is much better than asking for the performance of the contracts for both child and themselves. If he or she sues to the court for the opposite party’s breach of the contract, he or she may only make matter worse. |
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