【婚姻法解释三解读(英文版)】 婚姻法解读

Interpretation of the Third Interpretation of Marriage Law

After the amendment of Marriage Law came into force in 2001, the Supreme Court had announced two interpretations on Marriage Law in December 24, 2001 and December 25, 2003. As the statistics of the Supreme Court depicted, from 2003 to 2011, marriage and family disputes around house, paternity test and other areas that lack of specific regulations were increased year by year.

Therefore, to cope with the above disputes, the Supreme Court announced the third interpretation of Marriage Law in August 12, 2011, and the interpretation came into force in August 13, 2011.

It attracted great attention and lead to great controversy since the announcement of the draft of the third interpretation of Marriage Law on November 15, 2010. The interpretation aroused great sensation, especially for ownership of property before marriage and after marriage that regarded as the sensitive subject and aroused wide concern and controversy.

The following were interpretation of the third interpretation of Marriage Law.

1，Administrative review and administrative litigation were available when defect occurred in marriage registration. According to Article 1 of the third interpretation of Marriage Law, application for nullity of marriage would be rejected except conditions depicted in Article 10 Marriage Law.

Application for nullity of marriage on defect of marriage registration would be rejected either, whereas, administrative review and administrative litigation would be applied in such situations.

As a result, only when defect occurs in both substance and procedure aspects could the judge accept the application of nullity of marriage.

2，Party that refuses paternity test shall bear unfavorable consequences. Article 2 of the third interpretation of Marriage Law indicates that party who refuse paternity test and unable to provide evidence would bear unfavorable consequences. It means the judge would support claim of the other party based on evidence offered by it.

3，Claim for division of common property may be supported without claiming for divorce. According to Article 4 of the third interpretation of Marriage Law, when arrangement of common property of one party may great prejudice interest of the other and when the party who bear major responsibility to dependent tend to apply common property to afford medical expense while the other disagree, the judge would support claim for division of common property.

The provision was made to assist the vulnerable party to claim for division of common property without claiming for divorce in emergency.

4，According to Article 5 of the third interpretation of Marriage Law, fruits and unearned increment of property from one party after marriage would no longer regard as common property.

5，Gift of real estate between spouses shall be confirmed by registration. According to Article 6 of the third interpretation of Marriage Law, when gift of real estate is rescinded before registration and the beneficiary seeks enforcement of judgment, the judge shall apply Article 186 of Contract Law “the donator may rescind the donation before transferring of the rights of the donated property except donation contract is of such nature as for public welfare or moral obligation”.

The article means donator may rescind the donation of real estate before registration, and provides resolutions for the dispute of gift of real estate between spouses.

6，Real estate bought for one party by its parent after married would be regarded as personal property. Article 7 of the third interpretation of Marriage Law is a source of much comment. The Article depictes that real estate bought for one party by its parent after marriage and registered in its name would be regarded as its personal property.

7，Request for divorce on dispute of childbirth may be granted. According to Article 9 of the third interpretation of Marriage Law, when one sues for a divorce due to nonexistence of mutual affection as husband and wife occurred because of dispute of childbirth, the judge shall grants a divorce by applying e of Article 32 Marriage Law “other circumstances that have lead to nonexistence of mutual affection as husband and wife” after an ineffective mediation.

8， House that bought before married and repaid mortgages after married may be regarded as personal property . Article 10 of the third interpretation of Marriage Law is a source of much comment as well. Real estate that bought by one party , registered in its name before married, afforded down payment personally and repay mortgage with common property after married shall be settled through consultation among parties concerned, otherwise, the real estate would be regarded as personal property .

The article leads to controversy of “wife may get nothing in lawsuit of divorce”. As a matter of fact, “wife may get nothing in lawsuit of divorce” misreads the article. According to the article, real estate that bought by one party , registered in its name before married, afforded down payment personally and repaid mortgage with common property after married shall be settled through consultation among parties concerned, otherwise, the real estate would be regarded as personal property.

However, mortgage unpaid shall be regarded as personal debt as well. What ’s more, one who gets the real estate must compensate the other party for corresponding share of common property that paid for mortgage and increment of the property accordingly.

For example, A spent 800,000 Yuan on a house that registered in his name before married, he signed an mortgage agreement with the bank, and repayments of the loan were spread over 20 years. A repaid the mortgage with common property after married.

The house appreciated as high as 1,800,000 Yuan after 10 years, and A divorced with his wife. According to Article 10 of the third interpretation of Marriage Law, A must first negotiate with his wife on dividing the real estate. With no agreement of the negotiation the judge would regard the house as personal property of A.

However, A ’s wife would not “get nothing in lawsuit of divorce”. After getting the house, A must compensate his wife for corresponding share of common property that paid for mortgage and increment of the property accordingly.

9，Public housing is out of common property. According to Article 12 of the third interpretation of Marriage Law, request for dividing public housing that afforded by common property and bought in name of parent of one party as common property would not be supported. Relevant part of payment of the house would be taken as right of credit of one party.

Public housing refer to house that covered by preferential policies, and are sold to specific groups as required. Therefore, public housing would not be divided as common property but be regarded as right of credit in suit of divorce. Excepting unearned increment, claim for part of common property that spent on the house and interests accordingly would be supported.

10，Agreement would be invalid as the suit of divorce failed. According to Article 14 of the third interpretation of Marriage Law, agreement subjects to divorce confirmed by registration authority or divorce confirmed by suit would not be supported by the judge when the suit of divorce failed and one party draw back the agreement.

11，Agreement on arranging common property would be supported. According to Article 16 of the third interpretation of Marriage Law, agreement that permits one party to apply common property for business or other personal issues would be regarded as arrangement of common property that agreed by both party. The agreement would be supported in suit of divorce.

The article means that agreement on arranging common property would be adopted by the judge in suit of divorce.