Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (I)

Fa Shi [2001] No. 30

December 25, 2001

The Interpretation of the Supreme People's Court Concerning the Application of the Marriage Law of the People's Republic of China (I), which was adopted at the 1202nd Meeting of the Judicial Committee of the Supreme People's Court on December 24, 2001, is hereby promulgated and shall come into force as of December 27, 2001.

With a view to correctly try marital and family dispute cases, issues concerning the application of the Marriage Law by the people's courts are interpreted as follows in accordance with the Marriage Law of the People's Republic of China (hereinafter referred to as the Marriage Law), the Civil Procedure Law of the People's Republic of China and other laws:

Article 1 The term "family violence" as mentioned in Articles 3, 32, 43, 45 and 46 of the Marriage Law refers to a behavior whereby a person causes a certain consequence of physical or mental injuries to his or her family member(s) by blow, binding, cruel injury, forced restriction of personal freedom or by other means. Durative or frequent family violence constitutes maltreatment.

Article 2 The circumstance that "a person who has a spouse co-habits with another person" as mentioned in Articles 3, 32 and 46 of the Marriage Law refers to that a person who has a spouse continuously and stably lives, not in the name of husband and wife, together with any person of the opposite sex other than his or her spouse.

Article 3 If any party initiates a lawsuit only based on Article 4 of the Marriage Law, the people's court shall not accept the case. If the people's court has accepted such case, it shall make a ruling to dismiss the lawsuit.

Article 4 If both the man and woman make up their marriage registration under Article 8 of the Marriage Law, the validity of the marital relationship shall commence from the time when both parties satisfy the substantial conditions for getting married as described in the Marriage Law.

Article 5 Where any man and woman who fail to go through the marriage registration formalities according to Article 8 of the Marriage Law but live together in the name of husband and wife initiate a lawsuit in the people's court to request for divorce, the case shall be handled according to different circumstances:
1. Before the Regulation on Marriage Registration was promulgated and implemented on February 1, 1994, if both man and woman meet the substantial conditions for getting married, the case shall be handled based on de facto marriage; and
2. After the Regulation on Marriage Registration was promulgated and implemented on February 1, 1994, if both man and woman meet the substantial conditions for getting married, the people's court shall inform them that they should make up the marriage registration before the case is accepted; if they fail to make up their marriage registration, the case shall be handled based on the dissolution of cohabiting relationship.

Article 6 With regard to any husband and wife who fail to go through the marriage registration formalities according to Article 8 of the Marriage Law but live together in the name of husband and wife, if one party dies and the other party claims for the inheritance right as his or her spouse, the case shall be handled according to the principle provided in by Article 5 of this Interpretation.

Article 7 The subjects who have the right to file an application with the people's court for annulling a registered marriage in accordance with Article 10 of the Marriage Law include the parties concerned to the marriage and the interested parties. The interested parties include:
1. The close relatives and grassroots organizations of the parties concerned if the application for annulling the marriage is filed on the ground of bigamy,
2. The close relatives of the party who is under the legal age for marriage if the application for annulling the marriage is filed on the ground that either party (both parties) is under the legal age for marriage;
3. The close relatives of the parties if the application for annulling the marriage are filed on the ground that both parties are in the kinship that is forbidden from getting married; and
4. The close relatives living together with the party who, before marriage, has suffered from any disease that is held by medical science as rendering a person unfit for getting married if the application for annulling the marriage is filed on the ground that the disease has not been cured after marriage.

Article 8 Where a party files an application with the people's court for annulling the marriage according to Article 10 of the Marriage Law, and the legal circumstance for invalid marriage disappears when the application is filed, the people's court shall not uphold the application.

Article 9 When the people's court tries a case of annulling a marriage, and mediation is not applicable to the trial of the validity of the marriage, the people's court shall make a judgment under the law. A judgment on the validity of marriage is legally effective once it is made.
Where a case involves property partition or child support, it may be mediated. Where an agreement is reached upon mediation, a mediation document shall be prepared separately. If a party is dissatisfied with the judgment on the issue of property partition or child support, the party may appeal against it.

Article10 The word "intimidate" as mentioned in Article 11 of the Marriage Law means that the doer forces the other party to go against his or her genuine will to marry him (her) by threatening to injure the life, physical health, reputation and property of the other party or his or her close relatives.
Only the intimidated party himself (herself) in a marriage relationship may plead for revoking the marriage.

Article 11 Where the people's court tries a case brought by a party concerned in a marriage for revoking the marriage on the ground that he (she) was intimidated, it shall apply the simplified procedures or ordinary procedures.

Article 12 The term "one year" as described in Article 11 of the Marriage Law is not applicable to the provisions on the suspension, interruption or extension of the limitations of actions.

Article 13 The term "invalid ab initio" as mentioned in Article 12 of the Marriage Law means that a marriage shall be determined as not subject to the protection of law from the very beginning only as of the time when it is declared invalid or revoked in accordance with the law.

Article 14 Upon application of a party concerned, if the people's court declares the marriage invalid or revocable in pursuance of the law, it shall capture the marriage certificates of both parties and shall mail the judgment which has become effective as well as the marriage certificates it has captured to the local marriage registration administrative organ.

Article 15 When a marriage is declared invalid or revocable, the property obtained by both parties during the cohabiting period shall be treated as being in their co-ownership unless evidence shows that it is owned by one party.

Article 16 When the people's court hears a case of invalid marriage caused by bigamy, if the case involves disposal of property, the people's court shall allow the party to the lawful marriage to participate in the litigation as a third party with independent claims.

Article 17 Article 17 of the Marriage Law, which provides that "both husband and wife shall have equal rights in the disposal of jointly owned property", shall be understood as follows:
1.The husband and wife have equal right to dispose of their jointly owned property. If it is necessary to dispose of their jointly owned property for daily necessities, both the husband and wife shall have the right to make decisions; and
2.When the husband or wife needs to make an important decision to dispose of their jointly owned property due to daily necessities, both husband and wife shall discuss the matter on an equal basis so as to reach an agreement. Where others have reasons to believe any common genuine expressions of both husband and wife, the other party shall not challenge any bona fide third party on the ground that he (she) does not agree or does not know.

Article 18 With regard to the circumstance that "if the third party has the knowledge of the said agreement" as mentioned in Article 19 of the Marriage Law, either the husband or wife bears the burden of evidence.

Article 19 The property owned by the husband or wife as described in Article 18 of the Marriage Law shall not change into property jointly owned by both parties.

Article 20 The "children without the ability to live an independent life" as described in Article 21 of the Marriage Law refers to the adult children who are unable to maintain their normal life because they are still accepting high school or inferior education, or have lost or have incompletely lost the work ability, or for any non-subjective reason.

Article 21 The term "aliments" as mentioned in Article 21 of the Marriage Law includes the expenses for life sustention, education, medical care, etc.

Article 22 When the people's court hears a case of divorce, if the case conforms to any of the circumstances under which "divorce shall be granted" as prescribed in Paragraph 2 of Article 32, it shall not make a judgment to deny the divorce on the ground that the parties concerned are at fault.

Article 23 The circumstance that "the soldier is in grave fault" as described in Article 33 of the Marriage Law may be judged according to the provisions of Items 1. through 3. of Article 32 of the Marriage Law as well as other circumstances under which the soldier has committed any other severe fault and leads to break of mutual affection as husband and wife.

Article 24 If a valid judgment of divorce made by the people's court does not involve the visit right and if the parties concerned bring a separate lawsuit over the visit right, the people's court shall accept the case.

Article 25 During the course when the parties perform the valid judgment, ruling or mediation document, if a party concerned requests for suspending the exercise of the visit right, the people's court shall make a ruling if it believes it is necessary to suspend the exercise of the visit right after it consults the opinions of both parties. After the circumstance for the suspension of the visit right disappears, the people's court shall, upon application of the party concerned, inform him (her) that he (she) may resume the exercise of the visit right.

Article 26 The underage children, the father or mother who directly brings up the children, or any other legal custodian who bears the obligation of upbringing and educating the underage children shall have the right to request the people's court for suspending the visit right.

Article 27 The circumstance under which "either party has difficulties in life" as mentioned in Article 42 of the Marriage Law means that it can't sustain the local basic living level by depending on the personal property and the property divided to him (her) at the time of divorce.
A party who has no domicile after divorce conforms to the circumstance of having difficulties in life.
At the time of divorce, one party may help the party who has difficulties in life by offering the dwelling right to or ownership of the house out of his or her personal properties.

Article 28 The term "compensation for damages" as mentioned in Article 46 of the Marriage Law include compensation for physical and mental damages. If any mental damages are involved, the relevant provisions of the Supreme People's Court concerning the Interpretation of the Supreme People's Court on Problems Regarding the Determination of Compensation Liability for Mental Damages in Civil Torts shall apply.

Article 29 The subject of compensation liability as mentioned in Article 46 of the Marriage Law shall be the spouse of the innocent party in the litigation of divorce.
Where the people's court makes a judgment of not granting the divorce in a case, it shall not support any compensation claimed by any party on the basis of Article 46 of the Marriage Law.
During the period of existence of the marital relationship, the people's court shall not support any compensation claimed by a party based on this Article separately without filing a divorce lawsuit.

Article 30 When the people's court accepts a case of divorce, it shall notify, in writing, the parties of the relevant rights and obligations as described in Article 46 of the Marriage Law. In the application of Article 46 of the Marriage Law, it shall differentiate the following circumstances:
1.If the innocent party who meets the conditions in Article 46 of the Marriage Law, on the basis of this Article, wants to claim for compensation for damages in the people's court, he (she) shall do so when initiating the lawsuit of divorce;
2.If the innocent party who satisfies the conditions in Article 46 of the Marriage Law, is the defendant in a divorce litigation case and if he (she) does not consent to divorce nor claim for any compensation under this Article, he (she) may initiate a lawsuit separately within 1 year after the divorce;
3.In a divorce litigation case where the innocent party is the defendant, if the defendant, during the first instance, fails to claim for compensation according to Article 46 of the Marriage Law, but he (she) claims for compensation in the second instance, the people's court shall conduct a mediation. If the mediation fails, the people's court shall inform the parties concerned to initiate a separate lawsuit within 1 year after the divorce.

Article 31 When a party concerned initiates a lawsuit in the people's court in pursuance of Article 47 of the Marriage Law, the limitation of actions for requesting for dividing the property jointly by the husband and wife for a second time shall be two years, which shall be computed from the next day when the party finds the property.

Article 32 What Article 48 of the Marriage Law provides that the execution may be enforced by the people's court in accordance with the law in case any person refuses to execute the judgment or decision on the visit of children refers to the taking of mandatory measures such as detaining and fining the relevant individuals and entities that refuse to help the other party to exercise the right of visit, and does not refer to the enforcement against the body of the children or act of visit.

Article 33 After the Marriage Law was amended, any case of marriage and family disputes which is being heard in first or second instance shall be governed by the amended Marriage Law. If any relevant judicial interpretation made by the Supreme People's Court earlier is contrary to this Interpretation, the latter shall prevail.

Article 34 This Interpretation shall come into force as of the date of promulgation.