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

Fa Shi [2011] No. 18

August 9, 2011

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (III), which was adopted by the 1525th meeting of the Judicial Committee of the Supreme People's Court on July 4, 2011, is promulgated hereby and shall come into effect as of August 13, 2011.

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

(Adopted by the 1525th meeting of the Judicial Committee of the Supreme People's Court on July 4, 2011)

For the purpose of correctly trying 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, the Civil Procedure Law of the People's Republic of China and other relevant laws:

Article 1 Where parties concerned apply for declaring marriage invalid based on the circumstances other than those specified in Article 10 of the Marriage Law, the people's courts shall reject their application.
Where parties concerned file civil actions on the ground that there exist flaws in marriage registration procedures, claiming cancellation of marriage registration, they shall be informed that they may apply for administrative reconsideration or file administration actions in accordance with law.

Article 2 Where one party of a couple files an action with a people's court, requesting confirmation of the inexistence of parenthood and provides necessary evidence, the people's court may presume that the claim filed by the party requesting confirmation of the inexistence of parenthood is tenable, provided that the other party fails to provide evidence to the contrary and refuses paternity test.
Where one party of a couple files an action, requesting confirmation of parenthood and provides necessary evidence, the people's court may presume that the claim filed by the party requesting confirmation of parenthood is tenable, provided that the other party fails to provide evidence to the contrary and refuses paternity test.

Article 3 During a marriage, if one or both parents refuse to perform the obligation of raising children and minor children or those unable to live independently request payment of child support, the people's courts shall uphold such request.

Article 4 During a marriage, if either of a couple requests division of community property, the people's court shall not uphold such claim, except for the following major reasons and without prejudice to the interests of creditors:
1. One party commits the acts that seriously harming the interest of community property, such as hiding, transferring, selling off, damaging or squandering community property or forging community debts; or
2. One party disagrees with payment of medical costs for a person whom the other party is legally obliged to maintain, who suffers from a serious disease and needs medical treatment.

Article 5 Proceeds generated, after marriage, from the property of either of a couple, except for fruits and unearned increments, shall be determined as community property.

Article 6 If one party, before or during the marriage, agrees to gift his/her own house property to the other party and cancels his/her gift before going through the registration formalities of the change of the house property as gift, and the other party requests a ruling for continuing to perform such gift, the people's court may handle the request in accordance with Article 186 of the Contract Law.

Article 7 Any real estate purchased by parents of one party for him/her after his/her marriage, the title of ownership which is registered under the name of such party, may be deemed as the gift only to such party and shall be determined as such party's personal property in accordance with Item 3 of Article 18 of the Marriage Law.
Any real estate purchased by parents of both parties for them, the tile of which is registered under the name of one party of the couple, may be determined to be co-owned by both parties by shares according to their respective parents' capital contribution, unless otherwise agreed by the parties.

Article 8 If the spouse of anyone with no capacity for civil conduct commits acts seriously harming personal or property rights of the party with no capacity for civil conduct, such as abusing or deserting such party, other persons having custody may file an action for change of custody in accordance with special procedures; and if the new custodian file an divorce action on behalf of the party with no capacity for civil conduct, the people's court shall accept the case.

Article 9 The people's court will not support damages claims filed by a husband for his wife's offending his reproduction rights by interrupting pregnancy without his consent; where both parties dispute over whether to procreate, which incur affection no longer exists, the people's court shall, in case of failure of mediation, handle in accordance with item 5, Paragraph 3, Article 32 of the Marriage Law if one party files a divorce action.

Article 10 Where one party, before marriage, enters into an estate sales and purchase contract and make the first payment with his/her personal money and borrows money from a bank, and after marriage, repayment is made with properties jointly owned by him/her and his/her spouse, the estate shall be handled when divorcing through negotiation therebetween if such estate is registered under the party making the first payment.
If no agreement may be reached in accordance with the preceding paragraph, the people's court may make a judgment that such estate is belonged to the party, under whom the title of ownership is registered, and unpaid loans is such party's personal debts. Those repaid jointly by both parties after marriage and the corresponding value-added part shall be reimbursed when divorcing by the party, under whom the title of ownership is registered, to the other party in accordance with principles specified in Paragraph 1, Article 39 of the Marriage Law.

Article 11 If one party sells out the house jointly owned by the couple without the other party's consent, and the third party buys in goodwill with rational consideration and title registration is gone through, the people's court will not support claims by the other party for returning of the house.
If one party disposes a house jointly owned by the couple and incurs losses to the other party, the people's court shall support claims filed at the time of divorce by the other party for compensation of losses.

Article 12 Where during duration of marriage, both parties purchase a house under housing reform, which is participated in by one party's parent (s), with their joint properties, and the house is registered under the name of one party's parent (s), the people's court will not support claims by the other party for dividing such house as their joint properties. Money paid for purchasing of such house may be treated as creditor's rights.

Article 13 If, at the time of divorce, one party has not retired and is not qualified for drawing pensions, the people's court will not support claims by the other party for dividing such pensions as their joint properties; while if, after marriage, endowment premiums are paid with their joint properties, the people's court shall support claims by one party for dividing the part, paid by individuals during the duration of marriage, of the pension account, as their joint properties.

Article 14 Where parties reach a properties division agreement under the condition of divorce by registration or by consent through a people's court, the people's court shall deem such division agreement is of no effect and shall make division of their joint properties based on situations in accordance with law if their divorce by consent fails and one party pulls back in the divorce action.

Article 15 Where the heritage that one party as a heir may legally succeed has not been divided between heirs during duration of marriage, the people's court shall inform parties to lodge a new action after the heritage is actually divided between the heirs if the other party claims for division of the heritage in a divorce action.

Article 16 Where a couple enter into a borrowing agreement, stipulating their joint properties are lent to one party for personal businesses or other personal affairs, such act shall be deemed as an act of disposing their joint properties through both parties' agreement, and such properties may be handled in accordance with the borrowing agreement at the time of divorce.

Article 17 Where both parties fall with faulty circumstances specified in Article 46 of the Marriage Law, the people's court will not support claims for divorce damages filed by either or both parties against one another.

Article 18 Where one party lodges an action, after divorce, to a people's court for division of joint properties, which have not been disposed, the people's court shall, following confirmation that such properties are really joint properties not disposed at the time of divorce, make division thereof in accordance with law upon examination.

Article 19 Upon implementation of this Interpretation, in the case of any conflict between any relevant judicial interpretations promulgated previously by the Supreme People's Court and this Interpretation, this Interpretation shall prevail.

Annex:

1. Article 10 of the Marriage Law of the People's Republic of China
Marriage shall be invalid under any of the following circumstances:
(1) One party commits bigamy;
(2) The man and women are of kinship forbidden from marriage;
(3) Before marriage, one party is suffering from a disease which is regarded by medical science as rendering a person unfit for marriage and, after marriage, a cure is not effected; or
(4) The legally marriageable age is not attained.

2. Article 18 of the Marriage Law of the People's Republic of China
Properties falling within any of the following circumstances shall be deemed as one party's personal properties:
(1) One party's before-marriage properties;
(2) Medical cost compensations or disabled living allowances gained by one party because of his/her personal injury;
(3) Properties, ownership of which is fixed by a will or gift contract only to the wife or husband;
(4) One party's special living goods; or
(5) Other properties, which shall be deemed as one party's personal properties.

3. Paragraph 3, Article 32 of the Marriage Law of the People's Republic of China
Divorce shall be granted if mediation fails under any of the following circumstances:
(1) Bigamy or, cohabitation of a married person with any third party;
(2) Domestic violence or, maltreatment and desertion of one family member by another;
(3) Bad habits of gamble or drug addiction which remain incorrigible despite repeated admonition;
(4) Separation caused by incompatibility, which lasts two full years; or
(5) Any other circumstances causing alienation of mutual affection.
Divorce shall be granted if one party is declared to be missing and the other party thereby files an action for divorce.

4. Paragraph 1, Article 39 of the Marriage Law of the People's Republic of China
At the time of divorce, the disposition of the property in the joint possession of husband and wife shall be subject to agreement by the two parties. If an agreement cannot be reached, the people's court shall make a judgment in consideration of the actual circumstance of the property and following the principle of caring for the rights and interests of the wife and the child or children.

5. Article 46 of the Marriage Law of the People's Republic of China
A no-fault party shall have the right to make a request for damages under any of the following circumstances that leads to divorce:
(1) Bigamy;
(2) Cohabitation of a married person with any third party;
(3) Domestic violence; or
(4) Maltreatment and desertion of one family member by another.

6. Article 186 of the Contract Law of the People's Republic of China
Donors may revoke gifting before transfer of rights of gifted properties.
The preceding provisions are not applicable to those gift contracts, which are of disaster relief, poverty alleviation or other public interest nature or of moral obligation nature, or have been notarized.