The marriage law case analysis

 

1,  Li Nan30Years old and new sensitive married. But, in a physical unit of organization, Li Nan was diagnosed with cancer, has come in late. Li Nan misery, running away from home. In his home4Years later, He Min to the local court for declaring the death of Li Nan. In fact, Li Nan did not die, he went to Shanghai, while doing business side of treatment. In the process of seeking medical help in the snow, nurse gave him the meticulous care, two people held a wedding ceremony in a church, together. However, Li Nan still die young. The deathbed, he made a will, will be the field that property (a house, a car) half to snow. When snow white as he will find that half the price sensitive, house and car, was the He Min firmly opposed. He Min think, when she had to declare the death of Li Nan, did not release and Li Nan marriage, so Bai Xuehe and Li Nan's marriage is bigamy, therefore the agreement is invalid. The snow was not convinced, regardless of their marriage is the nature, will the true meaning is that Li Nan, she is as legitimate legatee inheritance demands perfectly legitimate property. Please answer: behavior legacy Li Nan effective? Why?

 

Answer:

1, Declaration of death, refers to the citizens whereabouts are not informed of a certain period of time, upon the application of an interested person, the people's court to declare the legal system of death. Declaration of death of a legal presumption of death, rather than physical death, aims to protect the interested party is declared dead people's legitimate rights and interests. Declaration of legal consequences after death is declared dead and spouse marriage be to lift, the spouse can marriage with others, their children can be adopted, its heritage can be inherited. In the case, Li Nan and He Min marriage, since the court declared Li Nan the day of the dead lift. The crux of the problem lies in the court to declare the death of Li Nan and Li Nan in time and the snow time to get married before, or after. If it is before the crime of bigamy suspicion or de facto marriage situation (see how the court to judge). The snow can accept Li Nan and he min each half of the property that. That is4Molecular. If it is, is a lawful marriage, then, the snow can inherit the half of the property of Li Nan and early.

According to China's "general principles of civil law" provisions, dead reappears or that he did not die, upon his own application or that of an interested person, the people's court shall revoke the declaration of his death.

According to the Supreme People's Court ("on the implementation of the general principles of the civil law) the views of a number of issues" article37Stipulates that: "the person being declared with the death of a spouse's marital relationship, since the date of the declaration of death of elimination. The death declaration by the people's court to withdraw, if their spouse has not remarried, the relationship between husband and wife from the declaration of death of EI to undo recovery; if the spouse remarried and divorced or remarried spouses and death, not identified the relationship between husband and wife to restore."

    

2, Wang Mou (male) and Li (female) by free love in1992Years of marriage, love after marriage is still good, gave birth to a daughter, aged10Years of age, since the2000In the summer, Wang Mou with gambling habit, therefore the relationship between husband and wife is increasingly intense, the next year8Month, the direction of the people's court, and the husband's divorce, he resolutely does not agree to divorce, and when the court expressed repentance, hope that the wife can change one's mind about. Accordingly, not allowed to divorce court. But since then the relations between the two sides did not improve, often bickering, Wang who indulge in pre casino,2002Years2Month, the live at home, no home, and by their own income to maintain the mother and daughter two people.

2003Years5Month, Li Mou to sue to people court again, insist on divorce, and demanded a divorce, living with her daughter. And Wang Mou puts forward, although his gambling, but the emotional basis of husband and wife is good, as long as the two sides have mutual understanding, and may, therefore still does not agree to divorce. Don't agree with daughter by Lee is raised, the court mediation still differ over the. In the period of separation, the man had thirty thousand funded loan to others, his brother study abroad at their own expense, the direction of a female friends and relatives to borrow ten thousand yuan, for the daughter was ill in hospital costs, the above investigation and verification, test in the case of plot, in accordance with the relevant laws and judicial interpretations, answer the questions and the reasons.

   (1) The defendant insisted not to divorce case The court ruling, both sides can divorce?

   (2) such as decision divorce, daughter born from where support is appropriate?

   (3The men and women) by parties, how qualitative and pay ?

 

Answer:

1The court may decide to divorce, both sides, this is because in this case Wang Mouyou gambling habit, after a decision not divorce litigation does not repent, should be identified Wang, gambling incorrigible. But the two sides after the court ruling for more than a year after the divorce of time both sides not no cohabitation, the relationship between husband and wife did not improve, should recognize that the relationship has been broken up, according to the "marriage law" provisions of article thirty-second, in cases where mediation fails the court shall grant the divorce decision;

2Daughter, judgment by Lee raised advisable. People's court to deal with divorce cases of minor children rearing principle is "conducive to the healthy development of the minor children" as the standard. In this case, Wang Mou with gambling and incorrigible, the support of the minor children of children adverse, opposite Lee has no this problem and Lee through their labor to raise her daughter, so it should be decided by Lee raised;

3, period of separation, the man borrowed money by Wang self discharge, because this is the king of a loan is not used for the production of both husband and wife living expenses but help others, belonging to Wang's personal debt, only by Wang self discharge; the woman, that Lee borrowed money, which belongs to the common debts with Wang the couple, both husband and wife should burden. This is because the parents have equal support obligations for minor children, Li Mou borrowed for raising children, so it belongs to the common debt, should pay.

 

3, Zeng Ming after the divorce by marriage, and also had divorced Lin Hong acquaintance. After a brief contact, a few months after the registration of marriage. Since the two person is the second marriage, to be on the safe side,2000Years6Month, the couple through the "negotiation", signed a "loyalty agreement". The agreement, the couple should love each other, have morality and sense of responsibility to the family, the spouse, children. The agreement also emphasized the "breach of responsibility": if a party in the marriage because of moral quality problems occur, betrayed the other side of the immoral behavior (affair), to compensate the other party for loss of reputation and the spirit of damages30Million yuan. After the signing of the agreement, during the marriage, Lin Hong found Zeng Ming and other inappropriate.2002Years5Month, had filed for divorce proceedings, the court at the same time, Lin Hong to Zeng Ming in violation of "loyalty agreement" filed a counterclaim, the court ordered that the payment of liquidated damages30Million yuan. In the case of plot test, according to the relevant laws and judicial interpretations, talk about your views and briefly explain.

 

Answer: the duty of loyalty between husband and wife have broad sense and narrow sense two kinds of understanding. Faithful duty of husband and wife in a narrow sense, also called chastity faithful obligations, only means he exclusive obligation of row of sexual life. Faithful duty of husband and wife in broad sense, including not only the couple in the life of mutual chastity, not for sex outside marriage, also includes the couple shall not maliciously spouse, not sacrifice, for the benefit of third party damage the interests of the spouse. China's "marriage law" fourth stipulates: "husband and wife should be faithful to each other, mutual respect......" And the "marriage law" thirty-second and "bigamy or spouses living together with others" as one of the legal reasons of divorce.

About loyalty agreement should be protected by law, is a hot, difficult in judicial practice. In this regard, a kind of viewpoint thinks, "marriage law" article4Faithful obligation stipulated, is a moral obligation, rather than a legal obligation, one of the spouses to moral obligations as to the price and the other party for exchange agreement, should not be construed to determine the specific civil rights and obligations of the agreement. Therefore, a faithful spouse on a sign agreement, the party in breach of loyalty agreement only on the grounds, prosecution for the other side to the agreement or the payment of liquidated damages and compensation for the loss of, should according to "a" third "the only basis lawsuit by law fourth interpretation of the marriage law, the people's court shall not accept the; has accepted the case, ruled that the prosecution dismissed", will not be accepted. Another opinion is that, in violation of the couple loyalty agreement, the plot has not yet reached the "together with others" degree, how to bear the responsibility of the law does not clearly defined, but the law does not expressly prohibit the parties have agreed, the husband and wife in marriage signed "loyalty agreement" in full compliance with the principles and spirit of the marriage law.

We think, for loyalty agreement, the marriage contract disputes, the key is to review the agreement is in violation of the legal provisions. If the agreement is in violation of the prohibitive provisions of the law, of course is invalid, should not be protected by law. But if the agreement is not in violation of the law prohibiting sexual, and is the true meaning of the parties, the agreement is effective, should get the support of the law. Of course, if the amount agreed compensation is too high, can be adjusted. The reasons are as follows:

(1) "marriage law" fourth stipulation: "husband and wife should be faithful to each other, mutual respect; family members shall respect the old and love the young, help each other, maintain equal, harmonious, civilized marriage and family relations." Hereby, loyal to each other is the legal obligation between husband and wife. By law, for the maintenance of monogamy principle, the protection of marriage and family and the injured party's rights and interests, all has the vital significance. This provision, the husband and wife relationship, both with normative, and sexual orientation. The law requires the loyalty between husband and wife, does not mean that use legal means to maintain the feelings that have been broken relationship, nor does it mean that forced the party to violate the duty of loyalty, duty of loyalty to the law. However, as the law will be loyal to each other provisions as legal obligations, the violation of the obligation, he may have to bear the legal consequences of a certain. For example, "marriage law" article forty-sixth clearly stipulated that, at the time of divorce, the innocent party may request the fault of victim compensation. And here's fault, is the main means in violation of the provisions of the marriage law of mutual faithful obligations. The law has clearly defined both husband and wife should be faithful to each other circumstances, some people still insist that the mutual loyalty just a couple of moral obligation rather than a legal obligation, is obviously not right.

(2The connubial loyalty) is the essential of the marital relationship, marriage is stable or not depends to a large extent on the. Damages for breach of the "loyalty agreement", in fact is the materialization of the connubial loyalty Responsibility Abstract in the marriage law, fully in line with the principles and spirit of the marriage law, so should and can get the support of the law.

(3Some people think that loyalty agreement), belongs to the friendship behavior, this behavior is not subject to the protection of the law. In fact, this view is worth discussing. Marriage is not child's play, with dinner, friendship behavior is different. The dinner, the friendship behavior only by moral adjustment, not by law, promised to treat a party does not carry out his promise, others are not in accordance with the law of forced its way to treat, also cannot demand it to bear the liability for breach of contract. But the marriage relationship is different, which not only by moral adjustment, at the same time by the law. Therefore, in a marriage for both men and women, loyalty agreement reached, does not belong to the friendship behavior.

(4In fact, the duty of loyalty) is a kind of legal obligation, but the obligation does not have the enforceability, therefore, one party to the other party in violation of duty of loyalty by asking each other to perform the obligations, the court shall not accept the case. In this regard, "marriage law interpretation of a" third stipulates: "the parties only for filing a lawsuit according to law fourth, the people's court shall not accept the case; has to accept, reject." However, signed "between the couple loyalty agreement", one of the spouses prosecution on the basis of not the fourth marriage, but the two sides signed the agreement itself. Therefore, this case does not apply to the "marriage law" provisions of article third an explanation.

 

4,        Li and Liu in the2006Years1Menstruation the marriage, couples with both sides separated two years later. Lee prosecution to the court, for a divorce, shall be divided on the common property of the couple. Liu couple affection dispute, only to the housing how to split the dispute. Because, Liu premarital in his own name to buy a set of housing, and pay the first payment. The marriage of the real estate certificate, registration of ownership is Liu, Liu used his salary passbook to repay the mortgage. After the assessment, the housing has been added at the time of purchase1Times, Liu that the housing for premarital personal property, agents that, the house belongs to Liu's property before marriage, but marriage after the repayment of the mortgage and value-added part of the housing, belonging to the joint property, requirements shall be divided. In the case of plot test, according to the relevant laws and judicial interpretations, talk about your views and briefly explain.

Answer:

The court of the house is all belong to one party premarital personal property or part of the common property of the couple and how to deal with, there are two kinds of views:

The first view: the room of Liu's premarital property, but Lee can divide marital repayment mortgage. Because the real is before Liu individual purchase, but together after marriage loan shall be treated as with common property to repay the debt, Lee to claim half Liu to repay part of the marriage owing on the loan. And the value-added component for Liu premarital property, because the value-added component is attached to the Liu before the purchase of housing property and produce, value added and loss caused by this should belong to the property of the housing.

The second view: the houses of Liu's property before marriage, but marriage after the repayment of the mortgage and value-added part of the housing, belonging to the joint property, shall be divided. The reason for the:1.The room is Liu premarital to pay the first payment mortgage purchase, and the marriage of the property permits, the owner is liu. The room is not because Liu Mou and Lee married and become the common property of the couple.2.After Liu with individual wages to pay the mortgage, according to the relevant provisions of the law, both husband and wife during the marriage property has an agreement from its agreement, no agreement is the legal community property system, namely, any party pay bonuses are the common property of the couple. The married Liu to pay the mortgage should be identified as the joint property of husband and wife together with repayment Liu premarital personal debt, we divorce, this part must be split.3.The value-added part of the housing should be the joint property of husband and wife shall be divided. But the proportion of first payment should be added the deduction. Because the house is bought by Liu someone, L. Liu premarital personal property, but with Lee after marriage, to pay the mortgage in couples living together in the process of. Now the housing value, this part of the value of how to determine the nature of the joint property of husband and wife, should, in line with help consolidate the principle in dealing with the relation between the traditional family in china. In addition, the first payment and payment after Liu premarital pay mutual guarantee the housing can be value-added, value-added part of the division of the first payment deduction of provisions of the law.

After analysis, a lot of lawyer persuaded the court, second opinions! To maintain the legitimate rights and interests of the principal Li mou!

 

5,1997Years,Zhang and Wang met and fell in love,At that time, Zhang is not full20Years of age, in order to marry him, Zhang created a fake proof of age,To the civil affairs department to get a marriage certificate.Shortly after marriage, Zhang stand some behavior not Wang, think of divorce court, ask the court should judge Zhang divorce you?Zhang Wang's property can be divided?

 

The best answer Can, as long as the divorce conditions should divorce. Obtained during the existence of marriage property belonging to the joint property of husband and wife, should be the average separation.

"Marriage law explain (a)"

Article eighth The parties according to the marriage law tenth stipulation to the people's court for declaring the marriage null and void, the application, the circumstance under which the invalid marriage have disappeared, the people's court shall not support.

"Marriage law"

Article tenth 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.