Divorce inevitably involves the issue of property division. After the introduction of the third judicial interpretation of marriage law, the division of property after divorce has been more clearly defined. So the new marriage law has a clear regulation on how to distribute the property after divorce, so how to distribute the property after divorce?
How to divide the divorced property
(1) the common property of husband and wife should be divided equally. That is to say, the common property of husband and wife is divided equally in principle; according to the actual needs of production and life and the source of property, the specific treatment can also be different. Articles for personal use are generally owned by individuals.
(2) the common property managed and used by the husband and wife separately in the two places shall be owned by the management and user respectively when they are divided; for the difference part with great difference, the party with more property shall compensate the other party with the property equivalent to the difference.
(3) where the bride price paid according to custom has been registered for marriage but not yet lived together, or the payment before marriage causes the life difficulty of the payer, the other party may be requested to return the bride price at the time of divorce.
(4) if one party operates in partnership with another with the joint property of the husband and wife, the property in the partnership may be owned by one party, and the party who shares the property in the partnership shall give compensation equal to half of the value of the property in the partnership to the other party.
(5) in the case of divorce, the farming and planting industries which are jointly operated by husband and wife and have no income in the current year shall be considered as beneficial to the development of production and management, and shall be reasonably divided or discounted.
(6) both parties have repaired, decorated, demolished and built the house owned by one party before marriage, and the property right has not been changed at the time of divorce. The share of the increased part that belongs to the other party shall be compensated by the house owner at a discount to the other party.
(7) in case of divorce, if the time of marriage is not long, or the other party's life is difficult due to asking for property. May be returned as appropriate. If it is difficult to determine whether the nature of the acquired property is a demand or a gift, it can be treated as a gift.
(8) the houses shared by husband and wife that are not suitable for separate use shall be shared by one party according to the housing conditions of both parties and the principle of taking care of and raising children or no fault party. The party who receives the house shall compensate the other party for half of the value of the house. Take care of the woman under the same conditions.
(9) if the intellectual property rights owned by one party have not yet obtained economic benefits at the time of divorce, the other party shall be given proper care according to the specific circumstances when dividing the joint property of husband and wife.
(10) if the personal property before marriage is naturally damaged, consumed or lost in the common life after marriage, and one party claims to compensate with the joint property of the husband and wife at the time of divorce, it shall not be supported.
II. Latest provisions on divorce property division
Interpretation of the Supreme People's Court on Several Issues concerning the application of the marriage law of the people's Republic of China (3)
Article 4 during the existence of the marriage relationship, if one of the husband and wife requests to divide the common property, the people's court shall not support it, except for the following major reasons and without prejudice to the interests of the creditors:
(1) one party conceals, transfers, sells, destroys or squanders the common property of the husband and wife or forges the common debt of the husband and wife, which seriously damages the interests of the common property of the husband and wife;
(2) one party has the legal obligation to support the person suffering from a serious disease and needs medical treatment, and the other party does not agree to pay the relevant medical expenses.
Article 5 in addition to the fruits and natural value-added, the income generated by one party's personal property after marriage shall be recognized as the joint property of the husband and the wife.
Article 6 if the parties agree to donate the property owned by one party to the other party before marriage or during the existence of the marriage relationship, and the donor cancels the donation before the registration of the alteration of the donated property, and the other party requests the order to continue to perform, the people's court may deal with it in accordance with Article 186 of the contract law (the donor may revoke the donation before the transfer of the rights of the donated property).
Article 7 if the property right of a real estate purchased for a child by one of the parents after marriage is registered in the name of the child of the contributor, it can be regarded as a gift only to one of the children according to the provisions of item (3) of Article 18 of the marriage law, and the real estate shall be recognized as the personal property of the husband and wife.
If the property right of the real estate purchased by the parents of both parties is registered in the name of one of the children, the real estate can be recognized as shared by both parties according to their respective parents' share of capital contribution, unless otherwise agreed by the parties.
Article 10 if a husband and wife sign a real estate sales contract before marriage, pay the down payment with personal property and make a loan in the bank, repay the loan with the husband and wife's joint property after marriage, and the real estate is registered in the name of the down payment payer, the real estate shall be handled by both parties through agreement at the time of divorce.
If an agreement cannot be reached in accordance with the provisions of the preceding paragraph, the people's court may make a judgment that the real estate belongs to the party whose property right is registered, and the loan that has not been returned shall be the personal debt of the party whose property right is registered. In the event of divorce, the property right registration party shall compensate the other party for the payment of the loan and the value-added part of the corresponding property jointly repaid by both parties after marriage in accordance with the principle set forth in the first paragraph of Article 39 of the marriage law.
Article 12 during the period of marriage, both parties shall use the joint property of husband and wife to purchase the house that participated in the housing reform in the name of one parent, and the property right shall be registered in the name of one parent. If the other party claims to divide the house according to the joint property of husband and wife at the time of divorce, the people's court shall not support it. The capital contribution at the time of purchase of the house may be treated as a debt.
Article 14 If the parties reach an agreement on the division of property which is conditional on the registration of divorce or the agreement on divorce in the people's court, if the two parties fail to reach an agreement on divorce and one party withdraws his / her words in the divorce proceedings, the people's court shall determine that the agreement on the division of property has not come into force, and divide the joint property of the husband and wife according to the actual situation.
Article 16 If a couple enters into a loan agreement to lend their joint property to one party for personal business activities or other personal affairs, it shall be deemed that the two parties have agreed to dispose of the joint property of the couple, which may be handled in accordance with the loan agreement at the time of divorce.
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)
Article 15 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 they fail to reach an agreement through consultation or have difficulties in distributing them according to the market price, the people's court may distribute them according to the quantity and proportion.
Article 16 when a people's court tries a divorce case involving the amount of capital contribution in a limited liability company in the name of one party in the division of the husband and wife's common property, and the other party is not a shareholder of the company, it shall deal with it respectively 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.