For many couples, they may not be together at last due to various reasons, so they are faced with the problem of how to distribute the property after divorce. Then, how to distribute the divorce property in 2018? How to divide the divorce property? What is the principle of divorce property distribution?
From Article 17 to Article 19 of the current marriage law, it is clear that the joint property of husband and wife is the property acquired during the period of the existence of the husband and wife relationship, and the contents of the joint property of husband and wife are specified in the form of enumeration and generalization. The law also stipulates that there are two ways to divide the husband and wife's common property: agreement division and judgment division. At the time of divorce, if both parties have an agreement on legal marital property, the agreement shall prevail. The special property of one party belongs to me. In general, the joint property of husband and wife shall be equally divided, and may be unequal if necessary. In case of dispute, the people's court shall make a judgment according to law.
The second paragraph of Article 19 of the marriage law stipulates that 'the agreement between husband and wife on the property acquired during the existence of the marriage relationship and the property before marriage shall be binding on both parties'. That is, once the property is agreed to be jointly owned by husband and wife, it has legal effect and cannot be changed at will.
In the property system of husband and wife determined by the marriage law of the people's Republic of China, the legal system of joint property of husband and wife and the agreement system of joint property of husband and wife are established. According to the content of the matrimonial property system in China, the matrimonial common property consists of two parts: the legal matrimonial common property and the agreed matrimonial common property. The details are as follows:
I. how to divide the legal joint property of husband and wife in divorce
Article 17 of the marriage law clearly stipulates that: 'the following property acquired by husband and wife during the period of marriage shall be jointly owned by husband and wife: (I) salary and bonus; (II) income from production and operation; (III) income from intellectual property; (IV) property acquired by inheritance or donation, except for the provisions of paragraph 3 of Article 18 of this law; (V) other property that shall be jointly owned by husband and wife Specifically, the scope of joint property of husband and wife includes:
(1) salary and bonus. 'wage' refers to all kinds of labor remuneration, including standard wage, all kinds of bonuses, allowances and subsidies with specified standards, which are calculated according to the national statistics. In addition to the total wage of labor remuneration, 'bonus' refers to a certain amount of monetary rewards given by authoritative organizations such as the state and the government to specific subjects who have made special contributions or achieved outstanding achievements, such as athlete ranking award, scientific research achievement award, etc., which shall be included in the joint property of husband and wife.
(2) income from production and operation. The income from production and operation refers to the income obtained by citizens from production and operation activities within the scope permitted by law. The new marriage law strengthens the protection of personal property, which involves the ownership of the investment and operation income of the husband and wife's personal property. The legal property system of husband and wife in China is the joint system of income after marriage. If there is no legal agreement on the income after marriage (including personal investment income), it should be the joint property of husband and wife.
(3) income from intellectual property
Intellectual property is the exclusive right that people enjoy according to law on the achievements of their intellectual creation. Although the intellectual property rights are intangible, they are all "property rights with rights as the object" that can bring wealth. Therefore, in the current divorce cases, the intellectual property rights involved can also be divided as the joint property of husband and wife. But this is not to say that all the rights in intellectual property rights can be shared by husband and wife. Because intellectual property rights are based on the results of people's intellectual creation, we should take care of the rights and interests of the labor party from the principle of fairness. In addition, from the perspective of giving full play to the social and economic benefits of intellectual property rights, protecting the integrity of intellectual property rights, order in the field of intellectual property rights, and being conducive to economic development, the party who has not paid intellectual labor can only enjoy the right to divide the actual property obtained according to the intellectual property rights when dividing the property. But for other rights such as personal rights, performance rights, broadcast and Exhibition rights, distribution rights, adaptation rights, translation rights, annotation rights, patent application rights, use rights, sales rights, use rights in trademark rights, prohibition of other people's use rights and other rights in patent rights, they can not be divided as the joint property of husband and wife. And when dividing the property, the compensation for the party who did not pay intellectual labor should be one-off payment.
(4) property derived from inheritance or gift. The property acquired by a husband and wife through inheritance or donation is the joint property of the husband and wife. However, if the decedent or donor can clearly return to one party, the right to dispose of the private property shall be protected by law. Such special designation has legal effect and shall be protected by law.
(5) income from one party's personal property investment. The income obtained by one party's investment in personal property refers to the material benefits obtained by the husband or wife's investment in personal property during the existence of the husband wife relationship. The income here should refer to the fruits. The personal property here refers to the personal property belonging to the husband or wife before marriage, and also refers to the personal property belonging to the husband or wife agreed by the husband and wife after marriage. Investment behavior may occur before or after marriage. The income of one party's investment in personal property must be the income actually obtained during the existence of the husband and wife relationship, excluding the expected income.
(6) housing subsidies, housing accumulation fund, endowment insurance fund and bankruptcy resettlement subsidy actually obtained or should be obtained by both men and women. From the perspective of China's labor law, the above-mentioned items are closely related to the labor relations and wages of workers. In view of this, all four items should belong to wage income. It is a supplementary form of wages for workers. There is also a time limit for 'actual acquisition' and 'should be acquired', that is, the corresponding rights during the existence of the husband and wife relationship have been 'actually acquired' and 'should be acquired'. That is, the right has been formed, as for when to pay, it has no impact on the right.
(7) recognition of the land use right obtained by one party before marriage. Under the legal conditions, the right to the use of land can be sold, exchanged, given, leased, mortgaged, inherited, etc. to a certain extent, the land and the rights in the right to the use of land have become important material wealth owned by individual citizens. In principle, the right to the use of land acquired by one party before marriage shall be recognized as personal property. In China, real estate and real estate (land use right) belong to two administrative departments, and their value can also be reflected independently. For the land use right obtained by one party before marriage, if a house has been built on the land after marriage and the service life is not long, the value of the land use right and the value of the house should be treated separately when dividing the property. In addition, the value of one party's land-use right before marriage has increased when the property is divided in divorce, which should be recognized as the joint property of husband and wife. The reason is that the common property of husband and wife is formed with the establishment of the status relationship between husband and wife. The labor income and purchased property of one party or both parties, the property inherited or donated by one party or both parties and other legitimate income during the existence of the husband wife relationship shall be regarded as the joint property of the husband and wife. The value-added part of the land use right after marriage can be regarded as a kind of interest generated by the value of the land during the existence of the husband and wife relationship, which is a kind of legal income, so it should be recognized as the joint property of husband and wife, which is jointly owned by both parties.
(8) in the cases involving shares, the joint property of the husband and wife shall be recognized. At present, the people's court in the trial of divorce cases involving the ownership of shares disputes are increasing. This kind of disputes should be handled mainly from the source of funds and the nature of the stock itself. If it is one of the husband and wife or the shares jointly invested and purchased, it shall be recognized as the joint property of the husband and wife. But in real life, many cases are family members who jointly invest to buy stocks. How to determine the ownership of stocks? There are two kinds of stocks issued in our country at present: employee internal stocks and social public stocks. As for the shares held by the employees in the joint-stock enterprise who do not issue shares to the public, they can be regarded as the joint property of husband and wife when dividing the property, because not only the internal shares of the employees are registered and cannot be transferred to anyone other than the enterprise, but also such shares often have the nature of low-risk and high-yield welfare. If the husband and wife have a dispute with other members of their family about the ownership of shares, the relationship between them can be regarded as a loan relationship and handled separately. If they purchase public shares, which can be transferred and traded, the nature of such shares shall be recognized as family common property, and each party shall be divided according to the contribution.
(9) other properties that should be jointly owned. In the marriage law of our country, the common property of husband and wife is regulated by the combination of enumeration and generalization to avoid the incompleteness of the common property of husband and wife. When dealing with divorce disputes, we should make a concrete analysis of property, fully consider the source of property, obtain time, marriage legal property system and other factors, in order to maintain the legitimate rights of both husband and wife.
1) segmentation of stocks, bonds, investment funds and other securities
According to the provisions of Article 15 of 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 (2): when the husband and the wife divide the stocks, bonds, investment fund shares and other securities in the common property and the shares of unlisted joint stock limited company, if the negotiation fails or it is difficult to distribute them according to the market price, the people's court may distribute them according to the quantity and proportion. In practice, for example, in the case of Hu Hongwei v. Huang Yanming's divorce and division of shares and the dispute over the lottery table of the winning shares, when the court divides shares, the judgment is based on the reference to the stock price at the time of division, and in combination with the fluctuation range of the stock price within a reasonable period of time, the parties concerned shall negotiate a stock price by themselves, or the court shall make a judgment to confirm it Set a stock price, calculate the total value of the stock held according to the stock price, and divide it.
2) division of joint property of husband and wife in limited liability company
When the people's court hears a divorce case, involving the amount of capital contribution in a limited liability company in the name of one party in the division of husband and wife's common property, and the other party is not a shareholder of the company, it shall be dealt with separately according to the following circumstances:
(1) if the husband and the wife agree to transfer part or all of the capital contribution to the spouse of the shareholder through consultation, and if more than half of the shareholders agree or other shareholders expressly give up the preemptive right, the spouse of the shareholder may become the shareholder of the company;
(2) after the husband and the wife have reached an agreement on the transfer share and transfer price of the capital contribution, more than half of the shareholders do not agree to the transfer, but are willing to purchase the capital contribution at the same price, the people's court may divide the property from the transfer of capital contribution. If more than half of the shareholders do not agree to the transfer or purchase the capital contribution at the same price, it shall be deemed that they agree to the transfer, and the spouse of the shareholder may become the shareholder of the company. The evidence used to prove the consent of more than half of the shareholders as specified in the preceding paragraph may be the resolution of the shareholders' meeting, or the written statement materials of the shareholders obtained by the parties through other legal means.
3) division of joint property of husband and wife in partnership investment
When the people's court hears a divorce case, it involves dividing the capital contribution in the partnership enterprise in the name of one party in the joint property of the husband and wife, and the other party is not the enterprise