Perspective | Common Legal Issues in Cohabitation under the New Situation
Published:
2025-05-06
In today's society, with the continuous opening up of people's minds and the blending of multiculturalism, cohabitation has become increasingly common and is gradually becoming a preferred lifestyle for unmarried individuals. According to the "2023 Young Couples Cohabitation Survey Report" jointly released by Baihe Jiayuan Group and "The Houlang Research Institute," 77.8% of young people have an open attitude towards cohabitation, and a considerable number of young people have actual cohabitation experience. Looking at the different age groups, the premarital cohabitation rate for Generation Z (born after 2000) is 26.9%, while the rate for Generation X (born in the 1980s) and Generation Y (born in the 1990s) reached 59.9% and 63.8% respectively. The premarital cohabitation rate in China shows an upward trend. The increasing prevalence of cohabitation relationships has also brought about numerous legal disputes, however, many people know little about legal issues in cohabitation relationships. This article will thus provide a summary based on relevant legal provisions.
In today's society, with the continuous opening up of people's minds and the integration and collision of multiculturalism, cohabitation has become increasingly common and has gradually become a preferred lifestyle for unmarried individuals. According to the "2023 Young Couples Cohabitation Survey Report" jointly released by Baihe Jiayuan Group and "The Houlang Institute", 77.8% of young people hold an open attitude towards cohabitation, and a considerable number of young people have had actual cohabitation experiences. From an age perspective, the premarital cohabitation rate for Generation Z (00s) is 26.9%, while the premarital cohabitation rate for the 80s and 90s generations reached 59.9% and 63.8% respectively, indicating an upward trend in the cohabitation rate in China. The increasing prevalence of cohabitation relationships has also brought about numerous legal disputes, yet many people know little about the legal issues involved in cohabitation relationships. Therefore, I will now analyze these issues based on relevant laws and regulations.
I. Determination of Cohabitation Relationships
First, the concept of cohabitation.
Cohabitation refers to unmarried men and women living together as husband and wife without registering their marriage. From a legal perspective, cohabitation relationships fall into two categories. One is unmarried cohabitation, where unmarried men and women voluntarily choose not to register their marriage but live together long-term as husband and wife. This situation is more common among young people today; they may choose to cohabitate instead of getting married due to factors such as emotions, lifestyles, or finances. The other is cohabitation with a spouse, which violates public order and good customs. This refers to a married individual living with an unrelated person of the opposite sex, not as husband and wife, but in a continuous and stable manner.
Secondly, the difference between cohabitation and marriage.
In terms of law, cohabitation relationships differ from marriage relationships in terms of personal attributes, rights, obligations, and property relations. The Supreme People's Court's Interpretation (II) on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China (hereinafter referred to as "Interpretation (II) of the Marriage and Family Chapter") stipulates that cohabitation refers to the cohabitation relationship formed by long-term and stable cohabitation of a man and a woman, excluding cohabitation among same-sex couples and extramarital cohabitation. Thus, the law protects cohabitation relationships that meet the substantive requirements of marriage but have not been registered, showing respect for and attention to cohabitation relationships, fulfilling the needs of some people to pursue diversified lifestyles, and providing some legal protection for cohabitation relationships.
II. Property Division and Child Custody in Cohabitation Relationships
(I) Principles of Property Division
1. If there is an agreement, it will be followed. If there is no agreement, personal property remains personal; jointly owned property or other property is divided based on a comprehensive assessment of various factors.
Regarding property acquired during cohabitation, Interpretation (II) of the Marriage and Family Chapter provides clear guidance. If there is an agreement, it will be handled according to the agreement. If there is no agreement and the parties cannot reach a consensus, the people's court will handle it according to the following situations: (1) Salaries, bonuses, labor remuneration, income from intellectual property rights, inherited or gifted property, and income from individual production, operation, and investment, etc., belong to each individual; (2) jointly funded property or the income from joint production, operation, and investment, and other property that cannot be clearly distinguished, will be divided based on the respective investment proportions, comprehensively considering the situation of cohabitation, the presence or absence of children, and the contribution of each party to the property. For example, if a cohabiting couple jointly purchases a property, if there is no clear agreement, when dividing the property after separation, they must prove their respective investment shares, including the payment of the down payment and the repayment of the mortgage. If one party cannot provide sufficient evidence, they may be at a disadvantage in the property division.
2. Since Interpretation (II) clearly defines the principles of division, it is recommended that both parties in a cohabiting relationship clarify property ownership in writing as much as possible to avoid disputes.
The property agreement needs to clearly define the scope of each party's property, including real estate, deposits, investments, and debts. In addition, it is necessary to consider possible future changes in property, such as income and inheritance. The party who contributes more money, effort, and time to the cohabiting relationship is advised to have a larger share of the property in the agreement, so that the agreement can be directly applied when dividing the property.
In addition, the issue of debt is also important. How debts incurred during cohabitation are shared, and whether the respective debt responsibilities need to be clarified to avoid one party assuming the debt of the other party. The signing process of the agreement must be legal. Both parties must do so voluntarily, without fraud or coercion, ensuring the legality of the agreement.
(II) Principles of Child Custody
Non-marital children enjoy the same rights as marital children. However, in practice, it is first necessary to confirm whether both parties are the biological parents of the child. Since proving that a child is non-marital is difficult, it is advisable to perform a DNA test in advance. Secondly, determining custody and child support often faces many disputes and uncertainties. Regarding child custody, the court will comprehensively consider various factors, such as the economic status, living environment, and ability to raise the child. Determining the amount of child support is also not a simple matter, it is necessary to consider the actual needs of the child, the local living standard, and the ability of the parents to support the child. If the parties cannot reach an agreement, they will need to resolve the issue through legal means, which will consume a lot of time and energy.
(III) Principles of Inheritance
In cohabitation relationships, one party generally cannot inherit the other party's estate as a spouse. Unless specific inheritance conditions are met, such as providing significant support to the deceased, this is fundamentally different from the spousal inheritance rights in a marriage relationship. For example, if a long-term cohabiting couple, one party suddenly dies, and there is no will and does not meet the legally specified special conditions, the other cohabiting party cannot inherit the estate as smoothly as a legal couple, which may lead to a situation where the estate distribution does not match the wishes of the parties. It is advisable to write a will in advance to avoid risks.
III. Property Settlement Rules in Judicial Practice
(I) Principles of Property Ownership
If there is no agreement between the parties, the income earned by each party during cohabitation generally belongs to them respectively, while the jointly earned income and purchased property are jointly owned. This principle aims to balance the rights and interests of both parties. For example, if both parties jointly run a small shop, the profits are joint property; but if one party earns a salary or bonus through their own work during cohabitation, this belongs to their personal property.
(II) Methods and Principles of Dividing Jointly Owned Property
For jointly owned property, if there is an agreement, it will be handled according to the agreement. This emphasizes the importance of cohabiting parties signing a property agreement. If there is no agreement, it should be considered based on the contributions of the joint owners to the jointly owned property, their cohabitation life, and the presence or absence of children. For example, when dividing a jointly purchased vehicle, if one party contributed more and made a greater contribution to the use and maintenance of the vehicle, then they should receive a larger share in the division.
(III) Handling of Special Property
For immovable property such as houses, the ownership shall be determined according to the registration and investment situation. If the house is registered under the name of one party, and the other party can prove that they have invested in it, then the investment proportion should be considered during the division. For jointly operated property, it needs to be divided according to the investment and contribution of both parties. For example, for a company jointly invested and started by both parties, during the division, the property should be liquidated and divided according to the investment proportion of both parties and their contributions to the company's development.
IV. Child Custody Rules for Cohabiting Relationships in Judicial Practice
(I) Determination of Custody
When determining custody of non-marital children in cohabiting relationships, courts will prioritize the best interests of the child. Factors considered include the stability and health of the child's long-term living environment, whether both parties' income can meet the child's needs for living expenses and education, and the willingness and ability of both parties to provide care. If one party can provide conditions more conducive to the child's growth, they are more likely to be awarded custody.
(II) Payment of Child Support
The biological father or mother who does not directly raise the non-marital child should bear the child's support expenses. The specific amount should consider the child's actual needs and the parents' ability to pay. For example, a child living in a large city may have higher education and medical expenses, thus resulting in a higher child support amount. If one parent has a lower income, the court will determine a reasonable child support amount to ensure the child's basic living needs and development.
V. Courts Shall Accept Cases Regarding Property Division or Child Custody Disputes Arising from Cohabiting Relationships
(I) While unmarried cohabitation itself is not subject to legal regulation, property division and child custody issues arising from such relationships fall within the scope of legal regulation.
If the parties fail to reach an agreement and bring a lawsuit to court, the people's court should accept it as a civil dispute and make a judgment according to law. In this regard, Article 3, paragraph 2 of the Supreme People's Court's Interpretation (I) on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China (hereinafter referred to as "Interpretation (I) of the Marriage and Family Chapter") provides a clear stipulation: "When parties file lawsuits concerning property division or child custody disputes during cohabitation, the people's court should accept them."
(II) After the resolution of property and child custody issues arising from cohabitation, both parties no longer enjoy rights and obligations arising from the cohabiting relationship, such as joint ownership of property and custody rights. However, child support must be fulfilled according to the terms of the mediation or judgment.
VI. Importance of Relevant Legal Provisions
Relevant articles in the Civil Code of the People's Republic of China, such as Articles 1042, 1079, 1091, and 1054, as well as Interpretation (I) and Interpretation (II) of the Marriage and Family Chapter, provide clear bases for handling legal issues in cohabiting relationships regarding the determination of the relationship, property division, and child custody. Both lawyers and parties should thoroughly study and understand these provisions to protect their legitimate rights and interests when dealing with matters related to cohabitation.
In short, legal issues in cohabiting relationships are complex and diverse. It is recommended that cohabiting parties fully understand relevant legal provisions before or during cohabitation, and if necessary, sign property agreements or agreements on child custody to fully protect their rights and interests within the scope permitted by law.
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