Perspective | Process Guidelines and Interpretation of 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"

Judicial Interpretation No. 2 on Marriage: Process Guidance Chart

Summary of Interpretations of Article 2 of the Second Judicial Interpretation on the Marriage Chapter:

Bigamy seriously harms the public interest and violates public order and good morals. Therefore, it is stipulated that even if the legally married party has already divorced or their spouse has passed away at the time of filing the lawsuit, bigamy remains invalid—regardless of whether the other party acted in good faith or malice—and thus cannot be enforced. Effectiveness Correction Additionally, it is important to distinguish between "bigamy" and "cohabiting with another person," with the key distinction being whether they live together under the guise of a marital relationship.

In China, the legal system adopts a registration-based approach to determining the validity of marriage—that is, whether a marital relationship exists depends solely on whether the couple has registered their union. As a result, in judicial practice, it’s common for couples to fake a divorce in order to circumvent property purchase restrictions. However, there’s no such thing as a "fake divorce" in reality; if they wish to restore their marital relationship, the only viable option is to remarry and re-register their marriage.

Typically, when couples fake a divorce, they often agree in the divorce agreement to assign the house solely to one party. But what happens if the couple later decides to separate completely—where does the other party’s potential property loss end up? In judicial practice, a party whose property has been unfairly affected by a "sham divorce" can still rely on Article 146 of the Civil Code. By proving that the original division of assets during the divorce was based on a false expression of intent, such a party may challenge the validity of the property-sharing provisions in the divorce agreement and request a redivision of the marital assets.

This provision safeguards the legitimate rights and interests of creditors by regulating the practice of "divorce-based debt evasion." If a creditor has evidence demonstrating that a debtor has evaded debts through a divorce agreement, the creditor may exercise the right to rescind the agreement, restoring the assets to their original state in order to pursue recovery of the debt.

To apply this provision, three prerequisites must be established: the debt must have arisen before the divorce; the debt must already have been recognized as the individual debt of one spouse rather than a joint obligation; and the evidentiary standard for proving malicious collusion under these regulations is particularly high, requiring proof beyond a reasonable doubt. Additionally, the unique nature of the divorce agreement must be taken into account when applying this rule by analogy. Creditor's Right of Revocation At that time, one should consider the overall division of joint property, as well as issues such as child custody and fault in the divorce. It's crucial to strictly adhere to the criteria for revocation, ensuring that while protecting the interests of creditors, we also avoid harming the interests of the other spouse and their children.

When dividing jointly owned property, follow any existing agreement between the parties. If no such agreement exists, "each party retains ownership of their respective assets." For properties that cannot be clearly divided, the primary consideration will be the proportion of each party's contribution, with other relevant factors also taken into account for an equitable distribution. In cases where both parties have contributed financially, jointly managed the assets, or where the property has become commingled and indistinguishable, the division should be based on each person’s respective contribution ratio. Additionally, factors such as the duration of cohabitation, whether they share common children, and the extent of each party’s contributions to the assets—such as repaying loans or managing operations—should all be carefully evaluated to ensure a fair and balanced outcome.

When spouses agree to add each other's names to the property title—or even fully transfer ownership to their spouse—such an arrangement constitutes a marital property agreement, involving a unique legal relationship. Importantly, this special arrangement is not subject to the general rules governing gifts, regardless of whether the actual property registration has already been completed. Consequently, the gift cannot be revoked. In other words, once a house is gifted between spouses, the right to arbitrarily revoke the gift no longer applies; instead, the transfer automatically places the property within the scope of marital asset division, requiring only the parties' signatures—and in some cases, even bypassing the need for formal registration altogether. Furthermore, according to the third paragraph of this provision, if the gift is later revoked, no compensation needs to be provided to the other party.

The regulations regarding property ownership have also become clearer: in principle, the property is awarded to the donor. However, as specified in Paragraph 2 of this article, the property will only be granted to the donor if the marriage has lasted for a relatively short period and the donor bears no significant fault. If the marriage has been ongoing for a longer duration or if the donor has committed a major wrongdoing, the recipient may retain ownership of the property instead, thereby helping to maintain a degree of stability in the overall property arrangement.

This provision adheres to the consistent principles outlined in Articles 1066 and 1092 of the Civil Code regarding the division of marital property. While excessively large gifts—those clearly exceeding the family's typical spending level—cannot be legally demanded back, the other spouse may still file a court petition during the marriage to divide the joint marital assets, citing the alleged squandering of these funds. This move aims to mitigate further losses and safeguard one’s own rights. In the event of divorce, this same rationale can be used to argue for a reduced or even zero share of the marital property for the party responsible for the online gifting.

Any gift that violates the marital duty of fidelity can be deemed invalid on the grounds of breaching public order and good morals. In certain special circumstances, if the originally gifted property has already been lost or cannot be returned in kind, the legal consequences applicable to an invalid contract under Article 157 of the Civil Code shall apply by analogy. Once the contract is declared invalid, property that can still be returned in kind must be restored; for items that cannot be returned—or where return is unnecessary—compensation should be provided in lieu of restitution. Moreover, if such a breach severely harms the interests of the couple’s joint assets, the spouse may even request an early division of the marital property during the marriage, without waiting for divorce, in order to promptly mitigate losses and prevent further escalation. Importantly, whether the lawsuit is filed before or after the divorce, the nature of the disputed assets as jointly owned marital property remains unchanged, and the aggrieved party retains the right to demand full restitution of the property.

This provision modifies Article 29, Paragraph 2 of the "Judicial Interpretation (I) on Marriage and Family," which previously stated: "After marriage, if parents contribute funds toward the purchase of a home for both parties, the property shall be treated according to any existing agreement; in the absence of an agreement, it will be considered jointly owned marital property." The new rule now distinguishes between two scenarios: when one parent provides the full funding, and when either one or both parents contribute only part of the funds. It emphasizes that, while using the source of funding as the basis for dividing the property, all relevant factors—including the duration of the marriage, shared living arrangements, child-rearing circumstances, and fault in the event of divorce—should be carefully considered to ensure a fair and equitable resolution.

On the one hand, we should not dismiss corporate law rules—such as those governing market transactions outside the family—merely because marriage and family are afforded special protection. On the other hand, we must also consider how external relationships may influence the distribution of family assets, ensuring that the legitimate rights and interests of the non-transferring spouse are not compromised. Equity acquired through contributions of jointly owned marital property is considered joint marital property. If the registered party transfers such equity without the consent of the spouse, it constitutes an unauthorized disposition. However, this unauthorized disposition does not affect the validity of the underlying contract, unless the transferor and transferee collude maliciously to harm the legitimate rights and interests of the non-transferring spouse.

Couples investing in a limited company with joint assets must both be registered as shareholders; however, the proportion of equity division cannot be directly determined based on each party’s individual contribution amount as stated in the shareholder registry or the company’s articles of association. This provision clarifies the principle for dividing equity in a limited liability company jointly invested by spouses during divorce, emphasizing that the overall situation of the couple’s joint property should be comprehensively considered and divided according to Article 1087 of the Civil Code. This approach helps ensure a fairer and more reasonable distribution of marital assets, while also preventing disputes arising from disagreements over equity division.

The purpose of this provision is to protect the rights of heirs while also safeguarding the interests of those who are financially dependent. Neither party may claim that a waiver of inheritance is invalid solely on the grounds that it infringes upon the marital community property rights. This provision respects the heir's right to make an independent choice. However, if waiving the inheritance results in the waiving party being unable to fulfill their statutory duty to provide support, the court may deem the waiver invalid in order to protect the legitimate rights and interests of the dependent individual.

Personal Safety Protection Order It is a system established under the Anti-Domestic Violence Law, allowing individuals to apply for a Personal Safety Protection Order in cases of domestic violence as well as when a minor child has been secretly abducted or concealed. The act of abducting or hiding a minor child seriously violates the child's legitimate rights and interests, while also depriving the other parent of their custody rights. This provision grants the non-abducting parent the right to seek a Personal Safety Protection Order, helping to curb such unlawful behavior and ensuring both the minor child's rights and the other parent's custody rights are safeguarded.

However, if one party engages in serious behaviors that harm the interests of minor children—such as gambling, drug abuse, or domestic violence—and the other party urgently removes the child, this action, strictly speaking, does not fall under the legal prohibition of "kidnapping or hiding," but rather qualifies as a form of self-help. This provision not only safeguards the rights and interests of minor children, upholding the principle of the best interests of the child, but also prevents one party from abusing the act of kidnapping or hiding to achieve their own objectives. When handling such disputes, courts will require the party claiming legitimate reasons to provide evidence and resolve the issue through lawful channels, ensuring that no secondary harm is inflicted on the minor children.

This provision builds upon the previous one by further clarifying the legal consequences of snatching or concealing minor children during a marital separation. Custody disputes are categorized as one type of tort liability dispute; when a guardian's right to exercise custody is infringed upon, they are entitled to file a custody dispute. The other party may then be held liable through measures such as removing obstructions or halting the infringement. However, in cases of separation, the primary purpose of the lawsuit filed by one party is typically to determine which parent will temporarily assume custody of the child during the separation period. Therefore, this provision stipulates that "the court may temporarily decide on arrangements for the custody of the minor child."

This provision treats acts such as snatching away or concealing minor children as critical factors when determining child custody in divorce proceedings, fully reflecting the principle of acting in the best interests of the minor child. It helps safeguard the minors' physical and mental well-being, as well as their legitimate rights and interests. Moreover, items (1) through (3) of this provision also fall under the circumstances where "if marital relations have broken down and court mediation fails, divorce should be granted." Additionally, items (1) and (3) constitute one of the grounds for claiming damages in a divorce case.

After parents dispose of a property registered under the name of their minor child, they cannot arbitrarily claim the disposal invalid on the grounds of harming the child's interests. If the parents' actions during the property disposal indeed jeopardize the minor child's welfare, the child can pursue other legal avenues to protect their rights once they reach adulthood. As the minor child's legal guardian, parents are entitled to manage the child's assets within certain limits—but only on the condition that such actions serve to safeguard the child's best interests.

From the perspective that best serves the child's interests, any decision to change the custody arrangement will be determined by comprehensively considering multiple factors, thereby further safeguarding the child's rights and welfare. This provision recognizes and compensates the primary caregiver for the significant efforts and responsibilities undertaken in raising the child, ensuring that they are not left to bear an excessive financial burden alone due to the other party's failure to fulfill their obligation to pay child support.

This provision provides robust legal protection for children seeking child support, clearly defining the payment obligations of the non-custodial parent and preventing unjustified delays in child support payments.

According to Article 1072 of the Civil Code, step-parents and step-children shall not abuse or discriminate against each other. As for the rights and obligations between a stepfather or stepmother and their stepchildren who are being raised and educated by them, people's courts shall determine these based on the length of time the parties have lived together, comprehensively considering factors such as whether the step-parents have actually provided daily care during that period, whether they have fulfilled their responsibilities in family education, and whether they have assumed child-support obligations.

This provision clarifies the rules for terminating step-parent-stepchild relationships under specific circumstances, while also upholding the principle of fairness. For step-parents who have been at fault, their right to claim maintenance from their stepchildren is restricted.

The divorce agreement stipulates that marital joint property will be transferred to the children, which in effect constitutes one form of property disposition by both spouses. Unlike gift contracts, where either party enjoys the right to arbitrarily revoke the gift before it is actually delivered, neither spouse can unilaterally withdraw the arrangement once the property has not yet been physically transferred. This provision prevents either party from casually revoking the property gift to the children, thereby ensuring that the children can reliably secure their intended property rights and benefits.

If, after a divorce, it is discovered that the child is not biologically related or other similar circumstances arise, one party may request the annulment of the agreement on grounds such as fraud or coercion. A civil legal act that has been revoked is deemed invalid from the very beginning, and the parties involved may simultaneously file a request for redivision of assets. This provision strikes a balance between the rights and interests of both parties: while safeguarding the welfare of the children, it also provides legal recourse for the party who has been subjected to fraud or coercion.

Considering comprehensively the time and energy invested in fulfilling corresponding obligations, the impact on both parties, as well as the paying party's financial capacity and the local residents' per capita disposable income, the compensation amount is determined. This provision reflects recognition and compensation for the party that has contributed more to the family—such as stay-at-home spouses—and more effectively safeguards the rights of the less advantaged party.

This provision sets forth requirements for both the assisted and the assisting parties: the assisted party must genuinely face financial hardship, finding that even after receiving their share of joint and personal assets, they still cannot maintain a reasonable standard of living. If the individual already receives social security benefits such as pensions, unemployment insurance, or social assistance, it should be sufficient to meet their basic needs. Meanwhile, the assisting party must have the financial capacity to provide support. This provision also addresses the practical living needs of the more vulnerable party in divorce proceedings, ensuring their fundamental livelihood through legal means.