How Divorced Women Advocate Their Legal Rights and Interests in Relocation Houses
Published:
2018-07-18
Brief of the case:
The plaintiff Wang mou (female) and the defendant Li mou (male) met through introduction in March 2011 and registered for marriage on July 19, 2011. they had no children after marriage and both remarried after being widowed. The marriage of the original and the defendant has been carefully considered, but the feelings after marriage are general. The plaintiff sued for divorce because of the character of both parties and other reasons, and the court of first instance ruled that the divorce was not allowed. After the judgment came into effect, the husband and wife relationship between the two parties failed to make up, and the plaintiff sued the court of first instance again, requesting divorce from the defendant and requesting the division of the house (the house was a demolition and resettlement house and did not obtain a real estate certificate). The court of first instance decided to grant the divorce, but held that the property was a demolition and resettlement house, and the real estate right had not been registered and the real right had not been obtained, so the claim was not dealt. After the first instance judgment, Wang refused to accept and appealed within the statutory period.
The plaintiff entrusted the author to represent his second instance litigation. When the author talked about the case, the appellant only had two judgments of first instance and did not have any evidence materials. He only orally stated that the relocation housing involved in the dispute was allocated after his remarriage. The relocation and resettlement was carried out on the basis of registered permanent residence. At that time, the relocation and resettlement compensation agreement was signed in the name of the appellee. According to the appellant's description, it was obviously unfavorable to him in terms of evidence. After accepting the entrustment, the author did not find the resettlement compensation agreement in the first instance file when consulting the first instance file. By consulting the relevant government official website, the author learned that the demolition and resettlement house involved in the case was indeed resettled by the registered population. Combined with the situation of this case, theoretically speaking, the demolition and resettlement house belongs to the joint property of the husband and wife obtained after marriage, but evidence needs to be obtained to prove it. Since the demolition and resettlement compensation agreement is deposited in a district management committee, in order to find out the facts of the case, the author applied to a new district management committee to obtain relevant evidence about house demolition and resettlement. A new district management committee believes that lawyers should obtain relevant materials and should not cooperate. The author promptly applied to the court to obtain relevant materials. According to Article 17 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation", "If one of the following conditions is met, the parties and their agents ad litem may apply to the people's court for investigation and collection of evidence: (1) The evidence collected by the application belongs to the relevant departments of the state and needs to be obtained by the people's court according to the authority." File materials ", and then the judge agreed to the author's application and successfully obtained the demolition and resettlement compensation agreement. Although the contractor is the appellee, combined with the relevant evidence and relevant laws, the author believes that the demolition and resettlement housing involved in the case belongs to the joint property of husband and wife.
After careful study of the case, the author puts forward the following agency opinions: the appellant has no objection to the divorce between the court of first instance and the appellee, but thinks that the court of first instance is wrong not to deal with the demolition and resettlement house: because the nature of the house involved, the delivery situation and the current situation of the house need to be ascertained. The appellant was married to the appellee before the demolition and resettlement, and the appellant also moved his household registration to the village, which belongs to the scope of demolition and resettlement, and has obtained the main qualification of demolition and resettlement. In addition, the resettlement houses that the appellant should be allocated are resettled according to the registered population, and each resettlement population is resettled according to an area of 43 square meters, and can also enjoy a low price of 20 square meters per person. The demolition compensation agreement that the appellant applied to the court for transfer also clearly stipulates that it is distributed according to the population. After the court ruled that the appellant and the appellee divorced, because the house is the joint property of the husband and wife, and the house has been actually delivered, the author believes that the appellant has the right to the proceeds of the house involved in the case in accordance with the law. The court of first instance made a judgment that violated the principles of fairness and justice without ascertaining the facts of the case and the status quo of both parties. Although the property has not obtained the title registration certificate, the property has been actually delivered for two years and has the right to use it, and the house has been rented by the appellee and charged rent, which has certain economic benefits. The court of first instance did not find out the relevant facts, and it was wrong not to deal with it without obtaining the real right.
The author believes that although the title certificate has not been obtained, according to Article 21 of the Judicial Interpretation II of the Marriage Law, if the two parties have disputes over the house that has not yet acquired ownership or has not yet acquired full ownership at the time of divorce and the negotiation fails, the people's court should not judge the ownership of the house. Ownership should be used by the parties based on the actual situation. The case should take care of the rights and interests of the woman, allocate as much as possible to the woman who has no house to live in after divorce, and protect the rights and interests of women's legal residence and use rights. Buildings that cannot be registered with real rights cannot be recognized as the legal ownership of the house enjoyed by the parties, but a judgment can be made on the right to use residence.
Thirdly, by consulting a large number of cases, the author found that some courts in Beijing have made similar judgments on the right to use houses after divorce. Although China is not a case law country, the author is confident to print it out as a reference, and has made a complete catalogue of evidence for all the evidence in the case, setting out the purpose of proof.
According to the appellant's living situation in this case, there may be no fixed residence and life difficulties after divorce. The court should order the resettlement house to be used by the appellant. Based on the objective evidence of this case, the economic and living conditions of the parties, the author collects relevant cases, consults relevant materials, and communicates with the court many times. In the end, the court of second instance adopted the author's opinion and revised the judgment of first instance. After several months of hard work by the author, the case finally achieved a satisfactory result, safeguarded the legitimate rights and interests of the appellant, and also protected the right to use women as a vulnerable party after divorce.
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