Brief description:

Frequently encountered legal issues the parties consulting a marriage,To understand the relevant knowledge of friends for the convenience of need, specially collected questions are common,For the reader reference: personal property because of marriage continues into common property? The data provided in the past by life4Years, houses and other means of production through8Years into the joint property of husband and wife, but this principle does not comply with the provisions of property law. Some users see only the past provisions of judicial interpretation, it is not clear where the understanding. The new judicial interpretation of marriage law denied1993Years of judicial interpretation, personal property is not for marriage continues into common property, premarital property is always personal property.

 

Frequently encountered legal issues the parties consulting a marriage,To understand the relevant knowledge of friends for the convenience of need, specially collected questions are common,For the reader reference:

 

1What is marriage, revocable marriage?

The provisions of the marriage law, marriage made under coercion, the coerced party may apply to the marriage registration office or the people's court for cancellation of the marriage. The intimidated party shall request of the marriage, the marriage registration date made within one year. Illegal restriction of personal freedom of the parties request annulment of marriage, shall restore the personal freedom within a year. "Stress", refers to the behavior of people to give the other party or its near relative of the life, health, property, reputation and cause damage to coerce, forced the other party against the true intention of marriage. Because of stress and the annulment of marriage, only the stress side marriage party I. Here the "year" is not applicable to litigation limitation suspension, termination or extension of. A year without proposed cancelling the marriage request, the request right of permanent elimination.

 

2, which belongs to the invalid marriage?

The provisions of the marriage law, any of the following circumstances, the invalid marriage:

(a) bigamy;

(two) a prohibition of marriage between relatives;

(three) marriage with medical illness that should not be married, has not been cured after marriage;

(four) under the legal age.

Although the marriage invalid marriage, but if the parties to the people's court for a declaration of nullity of marriage when, the circumstance under which the invalid marriage have disappeared, for the declaration of invalidation of the application, the people's court shall not support.

 

3The agreement, divorce, or litigation?

 The divorce agreement and litigation in two ways, each has its own characteristics, the parties can choose according to their own actual conditions.

One, the divorce agreement

The advantages of the divorce agreement is time-saving, economic. Generally speaking, if the materials are complete, half hour after divorce formalities. However, the divorce agreement requirements more stringent, the divorce agreement must agree on the meaning of both husband and wife divorce, division of property, child support and other issues, the above problems of any two sides failed to reach an agreement, you can only choose divorce proceedings, therefore in the divorce registration, both parties shall sign a written agreement.

Two, divorce proceedings

The couple unilateral divorce, the other party does not agree to divorce or even though both sides agree to divorce, but did not reach an agreement on the division of common property and to raise their children, education, medical care and other issues, divorce proceedings the parties can be submitted to the people's court in divorce proceedings. Divorce proceedings is relatively time-consuming and laborious, but if both sides cannot reach the divorce agreement, which is a necessary step.

 

4The divorce agreement, have what conditions?

According to the "marriage law" and "Regulations" marriage registration management, granted the legal conditions of divorce registration protocol:

1Apply for divorce, both parties should be voluntary divorce. A request for divorce, the marriage registration administration organ shall not accept.

2Has filed for divorce, both parties to the child support and property issues properly. For both sides, but asked for a divorce, custody of children, one party has difficulties in life economic help, property and debts to deal with matters not to reach an agreement, the marriage registration administration organ shall not accept.

3In other situations, not the divorce agreement is a party or parties for the limited capacity for civil conduct or no capacity for civil conduct, the marriage registration administration organ shall not accept; not go through marriage registration, marriage registration administrative organ shall not accept.

 

5Active duty military divorce, how to do?

In accordance with the provisions of the marriage law, active duty military spouses divorce, the soldier's consent must be obtained, except for the military party is great fault. Major fault here refers to the military party is one of the following circumstances:

(a) marriage or cohabitation of a married person with any;

(two) the implementation of family violence or maltreatment, abandonment of family members;

(three) there is gambling, drug abuse incorrigible;

Non military party put forward a divorce, if one party does not agree with the military, and the military party no major fault, no judgment of divorce. The military party put forward a divorce is not restricted.

 

6What circumstances, the husband may not apply for divorce?

"Marriage law" thirty-fourth stipulates: "a woman during pregnancy and after delivery, the husband may not apply for divorce."

However, thirty-fourth of the marriage law also provides that: after a year in the woman's pregnancy and childbirth, "divorce, or the people's court deems it necessary to accept the divorce request, this restriction does not apply to." That is to say, though the law must limit the man in the woman's pregnancy and after delivery of the right of prosecution, but in exceptional circumstances can still accept the man's request for divorce, here, the key is to see what the situation is "necessary" but not limited to. From the trial practice and the Supreme People's court's judicial interpretation, "necessary", generally refers to the woman for adultery (not including the pregnant woman who had sex with others and lead to pregnancy) situation. The divorce proceedings in the woman's adultery after pregnancy or childbirth in the proposed within a year, the court should accept the. In addition, a year after the birth, the man still can not put forward a divorce. From the legislative spirit, legal restrictions on the man in the woman's delivery within one year after the divorce lawsuit right, not only for the normal development of the baby's growth, but also to the physical and mental health.

 

7One spouse, no civil to divorce?

One, one of the spouses have no capacity for civil act, can only be instituted divorce proceedings. "Marriage law" provisions of the divorce, requirements are husband and wife divorce, if one party has no capacity for civil conduct, it would not voluntarily. It can be seen that, if one party has no capacity for civil conduct, can not through the divorce agreement, no capacity for civil conduct party relatives cannot agent the divorce agreement. In this case, if one spouse has no capacity for civil conduct, filed for divorce registration application to the marriage registration department, the marriage registration department shall not be accepted, should inform their divorce proceedings to the people's court.

Two, in the proceedings, with no capacity for civil conduct party relatives must first determine the legal representative in the litigation. The scope of legal representative: parents, adult children, have raised the relationship between adult siblings, if not the scope of the statutory agent, can determine the statutory agent according to the law, the law stipulates the way.

Three, the divorce agreement, can be closed. No capacity for civil conduct a statutory agent may reach an agreement with each other on the problem of divorce, child support, division of property, such as can not reach an agreement, the court can directly judgments.

 

8A husband and wife, whereabouts unknown how to divorce?

According to the provisions of the civil procedure law, litigation concerning the status of against One's whereabouts is a mystery. person, under the jurisdiction of the people's court at the domicile of the plaintiff; domicile and habitual residence is not the same, the jurisdiction of the people's court. If One's whereabouts is a mystery. full two years, the spouse can apply to the people's court for declaration of missing, the people's court declared missing, bring a suit in a people's court.

 

9In general, the court how to identify couples that have been broken?

"Marriage law" the thirty-second regulation, any of the following circumstances, after the mediation is invalid, husband wife affection:

A person who has a spouse, bigamy or together with others;

Two, the implementation of family violence or maltreatment, abandonment of family members;

Three, gambling, drug abuse incorrigible;

Four, because feelings not separated for two years;

Five, other cases causing the breakdown of marriage.

Other cases causing the breakdown of marriage is referred to as a criminal sentenced to prison or adultery, rape, sex outside marriage or other direct severely hurt the feelings of the couple, the other party cannot forgive behavior.

 

10, separated for two years, marriage can automatically release?

Marriage can only be released by the judgment or mediation divorce registration or court way. Separation, no matter how long, can not automatically dissolution of marriage. However, in accordance with the provisions of the marriage law, marital separation for no love for two years, then couples that have been broken, in the proceedings, if the mediation fails, the court shall grant divorce. But due to discord and separated, can not apply to the requirement.

 

11How to identify, conjugal debt?

The conjugal debt in three cases:

During the existence of marriage, both husband and wife, in the name of the negative, for the couple to live together in debt;

Two, during the existence of marriage, husband and wife on the name of one of the debt, is generally handled according to the couple's joint debt, but one party can prove that the creditor and the debtor has explicitly agreed to personal debt, or can prove that obtained during the existence of marriage and the property of their respective agreed to all the creditors, and know the contract, for the one party's personal debt;

Three, Party premarital have negative personal debt, generally for personal debt, but the creditor is able to prove that a party before the debt is used for their families living together, for the conjugal debt.

Personal debt is a privately owed money, do not belong to the common debts for couples and family life, and thus should be personal settlement. In addition, in accordance with the provisions of relevant laws of our country, belongs to the illegal gambling debt, not protected by law. If you do not want to repay gambling debts, can not be settled.

 

12Personal property, because marriage continues into common property?

The data provided in the past by life4Years, houses and other means of production through8Years into the joint property of husband and wife, but this principle does not comply with the provisions of property law. Some users see only the past provisions of judicial interpretation, it is not clear where the understanding. The new judicial interpretation of marriage law denied1993Years of judicial interpretation, personal property is not for marriage continues into common property, premarital property is always personal property.

 

13Both sides to the house, how to do? 　　　　　

The house is the most basic means of subsistence, especially in recent years, housing prices soaring, is particularly important. If both wanted to get a house, the court will take into account the following factors judgment:

(a) the children who raise. In general, the children who raise, house pangui who will be the possibility of a larger;

(two) take care of no fault. If the other party shall have the marriage law four vices prescribed in article forty-six, namely bigamy, cohabitation, violence, abandoned or other serious fault situation, consider the no fault party interests, the court will consider the no fault party interests.

(three) if the conditions are the same, but no children, the court may also through an auction to solve the housing ownership housing, which is awarded to the highest one party, the other party shall take the discount.

 

14, the circumstances under which the children take their mother's side, the life?

　　1, two years of age children, the mother side of life in general;

　　2More than two years of age, minor children, if the mother is under any of the following circumstances, the mother's life is more likely:

(1) have sterilization operation or other reasons due to the loss of fertility;

(2) living longer with their children, to change the living environment was unfavorable to the healthy growth of children;

(3No other children), and the father had other children;

(4The children live, favorable) on the growth of children, and infectious diseases, the father had permanently or other serious illness, or other unhealthy situation of their mental and physical, not living together with their children.

(5Paternal and maternal) child rearing conditions are basically the same, both for children and their life together, but the children alone with my grandparents and grandparents living together for many years, and have the ability to help the mother to take care of grandchildren;

(6) for more than ten years of age children, their choice of her life.

 

15, what conditions, children's father live?

　　1Two years of age, the children, the mother in any of the following circumstances:

(1Infectious diseases) with persistent or other serious illness, children should not be to live with it;

(2) maintenance conditions do not support obligations, and the father asked the children to live;

(3) due to other reasons, children can not the mother party life.

　　2Two years of age, children, father agreed children live on the healthy growth of children, and no adverse effects;

　　3More than two years of age, minor children, if the father is under any of the following circumstances, either party life probability:

(1) have sterilization operation or other reasons due to the loss of fertility;

(2) living longer with their children, to change the living environment was unfavorable to the healthy growth of children;

(3No other children), and the mother have other children;

(4The children live, favorable) on the growth of children, but the mother suffering from infectious diseases cured or other serious illness, or other unhealthy situation of their mental and physical, not living together with their children.

(5) the child rearing conditions are basically the same, both for children and their life together, but the children alone with grandparents living together for many years, and grandparents and have the ability to help the father to take care of grandchildren;

(6) for more than ten years of age children, choose to live with his father.

 

16Raising children, fees to pay?

Child care fee, can be determined according to the actual needs of the children, the affordability of both parents and the local actual living standards. A fixed income, nurturing fee generally according to the total monthly income of twenty percent to thirty the proportion of payment. The burden of more than two children upbringing, the proportion may be appropriate to increase, but generally not more than fifty percent of total monthly income. No fixed income, raising fees on the basis of the average income in total income or the same industry, determined with reference to the proportion. There are special circumstances, may be appropriate to increase or decrease the proportion. Nurturing fee should be regularly pay, conditions can be a one-time payment. The party with no income or One's whereabouts is a mystery., available financial allowance upbringing fee for the children. Both parents can deal with a life by children and raise a burden children upbringing, but raise obviously can not guarantee the ability to raise their costs, affecting the healthy growth of children, not agreement. Tending to pay overtime period, generally to children eighteen years of age. More than sixteen years of age under eighteen years of age, with their labor income as the main source of livelihood, and can maintain the general standard of living, parents can stop payment upbringing. Not yet independent living adult children in any of the following circumstances, parents and payment ability, shall still pay upbringing necessary:

(1) lose labor ability or not to lose labor ability completely, but the income is not enough to sustain life;

(2() is in the school's education under high school);

(3) there is no independent living ability and condition.

 

17Other fraud, "how to do debt"?

Made "false debt" is also the common problems in the case of divorce. For example, the original parents gift purchase, now up to write a "IOU" attempt to become a lending relationship; even find relatives and forged ious; their stock in the money stock funds for others. Fear of the other parties in divorce proceedings fraud, is one of the greatest concerns. In fact, you also do not worry too much. The court litigation rules, "fraud" is not so easy. At present, scholars generally view is, the court in the trial of divorce cases, not directly on the debt problems.

The court is generally, if a party does not agree on the debt, the debt is not usually a substantive trial, but suggested that creditors separate prosecution. "Fraud" to face identification, examination of the test, but also face the marriage law is not divided, less consequences, even the participants must undertake the perjury criminal consequences, therefore, "MoGaoYiChe, DaoGaoYiZhang", as long as the attention of the right of action and skill, other proceedings "fraud" problem, can to prevent and resolve.

 

18, under what circumstances, the innocent party may claim damages?

Forty-sixth of the marriage law stipulates: any of the following circumstances, lead to divorce, the innocent party shall be entitled to claim damages:

(a) bigamy;

(two) a person who has a spouse living together with others;

(three) the implementation of the family violence;

(four) abuse, abandonment of family members.

According to the relevant judicial interpretations, the forty-sixth marriage law stipulates the "compensation", including physical and mental damage compensation.

 

19, can not find the "do the third" evidence?

The new marriage law in the provisions of the no fault party can claim to the wrongdoer, so once the affair by the court, the no fault party can get ahead in the property division. But because the evidence is difficult, the majority of the affair divorce can be identified refers to the number of songs. Direct can prove an affair evidence it is difficult to obtain evidence, some of the plaintiff in the prosecution to the court, as an advocate of the other exist, listed a large number of witness testimony, but the evidence is indirect evidence, in the absence of direct evidence to support and the other party denied circumstances, will be the court denied. So take that "third" evidence to identify the key evidence, otherwise spend so much energy and money for no real evidence, is not worthwhile.

 

20The evidence, "third" is the key?

The existing divorce cases, nearly half involves an affair. Many friends can not find each other a "third party" evidence. Indirect evidence is not generally recognized parties can only get the phone list, call records, Short Message content, relative pictures of intimacy, the testimony of witnesses, or even block at the door. The evidence is indirect evidence, the proof is relatively small, the general court will not because of the evidence that the other party is at fault.

The following five key evidence in court will win the trust of the:

One is the "guarantee", "apology", affair was exposed, a party he wrote that written evidence of repentance.

Two prostitution events were investigated, there is usually a police, a police record;

Three is the unit that workers after an affair, sometimes to handle the question of life style, there will be some processing materials;

Four is the flow of letters, SMS, e-mail, such evidence in addition to the written evidence, SMS, e-mail should be the first to do a notary, and then submitted to the court as appropriate;

The five is ZhuoGan in bed, collect the evidence difficult, by shooting, but careful not to violate the privacy.

 

1Divorce, can be handled by what way? For where?

 

Tang Hongju lawyers answer: divorce can be handled through the two ways agreement or litigation.

 

The divorce agreement, refers to the two sides to any party to the account of the civil affairs department. The suitable situation is both sides expressed their willing to divorce, and disposing of property, the children agreed "divorce". The benefit of this approach is to save time and money, the disadvantage is even more common property, especially the need for transfer of property, after the divorce if the person refuses to cooperate or estoppel, the "divorce" is not directly apply to the court for enforcement, but must use the property disputes to the court trial, at the appointed time not only spend more time, high cost (accepting the Fei Yuanyuan court cases than divorce division of property fee), and the content of the agreement may be overturned by a court (and therefore, the divorce lawyer drafted "divorce agreement" is the key); on the other hand because both sides have been divorced, impossible on the key issues of elbow each other and gain the maximum benefit, therefore, divorce should carefully weigh the advantages and disadvantages way!

 

Divorce proceedings, filed a lawsuit against a party refers to account for the location of the court, if the other party living elsewhere for a year, then to the habitual residence of the court. The benefit of this approach is to say without mincing words, can get legal documents, even can also according to the judgment or mediation to deal with property transfer question each other circumstances; on the other side do not pay property fees or alimony case, also can apply to the court for compulsory execution according to the text book. The disadvantage is high cost, high risk, Fei Shiduo. And the requirements of litigation strategy and skill is very high, due to the fault or fault occurs once the action, can one false move may lose the game, and makes the irreparable loss! Therefore, there is no doubt that divorce should seek professional guidance, is particularly important!

 　

2, in law, which is the focus of controversy divorced?

 

Tang Hongju lawyers answer: the focus of a feeling of husband and wife is broken, the division of property, child support these three. Lawyers and judges in divorce cases, these three are the emphasis, as both sides in the conflict because life trivial disputes or character words are the reason things, lawyers and judges nor in the non legal issues on sense or judgment. So after consulting lawyers and court cases, not necessary in some nonlegal details, and to keep the focus!

 　

3First, put forward a divorce party, whether raising on the division of property right or daughter-in-law alimony suffer?

 

Tang Hongju lawyers answer: not. The sequence of divorce, in the law, no influence on the distribution of the property and the rights and interests of the child.

 　

4Required to prove each other, extramarital affairs investigation?

 

Tang Hongju lawyers answer: under normal circumstances, there is no need to. Especially in the need to spend a lot of time, money, and the evidence obtained may be illegal case. Because even if that doesn't help that extramarital affairs, whether burst on property division and couples. In the law, only to prove that there are other cohabitation or marriage situation, that will affect the rupture on the division of property and feelings. "Cohabitation" bigamy "evidence" of the claim it is very harsh, it is difficult to obtain, for example to prove the two couples to the name of proportionality, living together for six months, these facts do exist, however, only through the photographs, recording, the testimony of witness is very difficult to make the court carefully. Excessive attachment to forensics, the affair is simply, as the detailed investigation of other property is more important!

 　

5How to prove the existence of, each other legally at fault?

 

Tang Hongju lawyers answer: the law, fault refers to the following three: bigamy or cohabitation, domestic violence, gambling addiction incorrigible. In that family violence, alarm records, inspection reports, disability identification is necessary; and the gambling addiction, must be able to prove the quantity is many, must have the relevant departments of the punishment decision, decision, notice.

 　

6Children belonging, and alimony?

 

Tang Hongju lawyers answer: in the woman's request to raise children cases, children in the lactation period, judge the effect to the possibility of. Of course, if he can prove that the woman has a bad habit or disease, on the children's growth adversely; or the child's parents also have with life, and the man parents also indicated a willingness to continue to take care of the child's circumstances are exceptions. In children ten years of age or older, except as both sides support will, also need to ask children to decide custody who is. In support of the Guangzhou region, according to the standard, generally in the600Element/Month, the payment is divided into three kinds: a one-time payment, the annual/Quarterly payment, the monthly payment. In the two sides could not reach a consensus on the condition of payment, the law generally adopts the monthly payment decision.

 　

7Property division, how?

 

Tang Hongju lawyers answer: This refers to the property, refers to the joint property of husband and wife, not including their premarital property, such as premarital property is not belong to the scope of segmentation. The joint property of husband and wife including but not limited to: after the purchase housing, purchase of household vehicles, bank deposit, stock, foreign investment, corporate equity etc.. If the two sides through the mediation process, can not mean segmentation, one can even give up all the property division. If the negotiation fails, the court said, will take care of the woman and the average distribution based on the rights and interests of the child, the amount of the general there won't be much difference.

Often have parties that we both had no property, but divorce does not get some compensation can not be reconciled, this situation is indeed worthy of sympathy, but if it is unable to prove that the other party have property, unfortunately did not out of thin air law, law is not omnipotent, hope that the parties can take a pragmatic attitude and treatment.

 　

8Debt, how to deal with?

 

Tang Hongju lawyers answer: here it refers to debt, refers to the conjugal debt, not including their pre marital debt, unless it is proved that the debt is used for married life. The conjugal debt including but not limited to: the purchase of housing or vehicle to bank loans, foreign loans etc.. Both sides have the related discharge of joint liability. But for a false debt party or illegal borrowing, often lawyers can even for the injured party completely reverse the situation.

 　

9The other party is not willing to divorce, and responding to, the marriage from it?

 

Tang Hongju lawyers answer: on this issue, if you stand firm, calm, it is not possible to have a "can not be into a wedding"! It is only a matter of time difference. Generally speaking, the first divorce to the court, if the other party is remorse or insist on not or do not appear involved, the court will be in accordance with the principle of prudence, the feelings of both judgment is not broken, not divorce. In this way, Is it right? First divorce is completely useless? No, not at all. The lawsuit, although the court did not divorce, but have made clear the feelings of both sides is not good this fact. In the six months after the verdict, the plaintiff can be re filed for divorce. This time, the passive is not willing to divorce party, the first lawsuit has been identified based on the fact that the sentiment is not good, and in the six months between the two sides still did not improve, then the final results, may be found the feelings that have been broken, judgment of divorce.

 　

10Marriage, what dispute need to prepare and provide legal evidence?

 

Tang Hongju lawyers answer:

 ATo prove the existence of the marriage, the marriage certificate, if not provided, can be obtained by the counsel to the Department of civil affairs investigation;

B, matrimonial property list, for example: the economic income, housing, vehicles, bank deposit, stock, the shares of the company;

 C, children, provide the child birth certificate or account, if not provided, by the law to the public security department investigations have their household registration information;

DOther, such as fault, damages, provide the relevant materials. For example: bigamy, provide each other with third people marriage certificate; cohabitation, providing it with third living together for more than half a year or in the name of husband and wife living testimony and documentary evidence; family violence or maltreatment, providing forensic identification or alarm receipt, neighborhood committees or the women's Federation mediation certificate;

EIf the requirements, financial aid, such as: disease, without proof of labor ability, economic status.