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In view of the complexity of the determination of marital property, the division of property is the main focus of dispute in divorce disputes. Here, according to the adjudication rules in the process of divorce disputes in judicial practice, the common principles of marital property division are summarized for reference.
1. Validity of property agreements
1. The husband and wife sign a prenuptial property gift agreement, in which it is stipulated that one of the husband and wife will donate personal real estate to the other party, which is essentially a property gift agreement. According to the provisions of the Civil Code, the donor has the right to revoke the gift before the transfer of the right to the donated property.
2. The guarantee that all property after marriage belongs to the other party issued by the husband and wife for the purpose of alleviating the conflict is a gift of property in the marital relationship. The donor may revoke the gift before the transfer of rights to the gifted property.
3. If the husband and wife agree that the joint property after marriage is the personal property of one of the husband and wife by signing the "Marriage Agreement", it is a "joint property agreement between the husband and wife", and it is not an act of giving personal real estate to the other party. This agreement is binding on both husband and wife and does not affect the validity of the property by whether or not the change of ownership of the property is registered, and even if the transfer of privileges is not registered, it does not affect the acquisition of ownership of the property by one party according to the agreement.
4. If the parties reach a property division agreement on the condition of registering the divorce or going to the people's court to agree on the divorce, if the divorce is not reached by mutual agreement between the two parties, and one party repents in the divorce proceedings, the people's court shall determine that the property division agreement has not taken effect, and divide the joint property of the husband and wife according to the actual situation in accordance with the law. The purpose of the agreement involved in the case is to divorce by agreement, and the property division agreement should not be effective because it lacks the premise and basis for divorce by agreement. In view of the fact that the parties failed to agree on the divorce, the division of property involved in the divorce agreement did not take effect.
2. The case of giving property to children
1. After the husband and wife jointly purchase a house and register the house in the name of the minor child, the people's court shall examine the true expression of intent of the husband and wife when purchasing the house, and if the true expression of intent is indeed to donate the purchased house to the minor children, the real estate belongs to the children. Guardians shall perform guardianship responsibilities in accordance with the principle of the best interests of the ward, and guardians must not dispose of the ward's property except to protect the ward's interests. If the husband and wife, as the guardians of the minor children, dispose of the real estate donated and registered in the name of the minor children as the joint property of the husband and wife due to the divorce and property separation, which harms the interests of the ward and is not entitled to be disposed of, and the content of the mediation agreement reached on this basis is illegal and should be revoked.
2. The agreement in the divorce agreement to give property to the children is in the nature of a third-party clause for the benefit of a third party, rather than establishing a gift contract relationship between the parents and the children, so the party with the obligation to pay may not exercise the right of arbitrary revocation based on the gift contract relationship. Based on the jurisprudence of altruistic contracts, children have the right to claim benefits directly.
3. In the case of life insurance purchased by one of the spouses for the minor children, when the policyholder and the insured are inconsistent, the cash value of the insurance policy shall be deemed to be the personal property of the insured, and shall not be divided as the joint property of the husband and wife, provided that the contract has not yet expired and the property interests are clearly stipulated to be enjoyed by the insured.
3. The principle of real estate division
1. With regard to the determination of the owner of the immovable property, it is necessary not only to examine the evidence such as the certificate of ownership of the immovable property and the immovable property register, but also to comprehensively examine the purchase funds and the capital contribution to the purchase of the real estate if one party provides sufficient evidence to the contrary, so as to determine the actual purchaser of the disputed property. In the event of a dispute over the ownership of the house, the confirmation of the owner of the property right shall be based on the ascertained facts of the purchase, and shall not be subject to the registration of the ownership of the house.
2. If the two parties cannot reach an agreement through negotiation, one party shall be judged to obtain the ownership of the house and give the other party certain economic compensation. The house involved in the case is the only house jointly owned by the husband and wife, and the division should also be divided by giving full consideration to factors such as the personal circumstances and actual living difficulties of both parties. If one party does not have any close relatives after the divorce and has no other means of living, the court may rule that the ownership of the house belongs to him and give the other party financial compensation.
3. When dividing the only house jointly owned by the husband and wife in the course of divorce, both parties claim that the ownership of the house belongs to them and agree to pay the discounted division to the other party, but the two parties cannot reach an agreement on the division of the house, the people's court may divide the house according to the current use and living situation of the house and follow the principle of taking care of the rights and interests of the children and the woman during the trial.
4. During the existence of the relationship between husband and wife, if one party claims that the down payment given by the parents for the purchase of the house for the children is a joint loan between the husband and wife, and the other party claims that it is a gift from the parents to one of the parents, if both parties do not provide sufficient and effective evidence, the contribution shall be recognized as a gift from the parents to the husband and wife.
5. If the immovable property purchased for the child by one of the parents is fully funded by one of the parents after marriage, and the property right is registered in the name of the investor's child, it shall be regarded as a gift to only one of the children, and the subject matter of the gift refers to the immovable property and not the capital contribution, and the immovable property shall be recognized as the personal property of one of the husband and wife.
6. After marriage, one of the parents pays a down payment to purchase real estate for their children, and the property rights are registered in the name of the children of the investor, but the husband and wife jointly repay the loan. As a result, the parents have not paid the full consideration for the purchase of the house, they have not yet acquired ownership of the house, and therefore they do not have the right to decide to donate the house to their children and to register the house in their children's name. Therefore, the house, whether registered in the name of either of the spouses, shall be considered as the joint property of the husband and wife and shall be divided equitably in the event of divorce.
7. If one of the husband and wife signs a house sale contract before marriage, pays the down payment with personal property and takes out a loan in the bank, if there is evidence to prove that the main purchase price of the house is paid by the down payment party, the property will not be converted into the joint property of the husband and wife due to the establishment of the marriage relationship or the payment after marriage.
8. If one of the husband and wife signs a house sale contract before marriage, and both parties jointly pay the down payment, housing loan and supplementary payment after marriage, at the time of divorce, the people's court may make a judgment that the house belongs to the party with property right registration, and the remaining outstanding loan shall be repaid by the party with property right registration and pay the other party the compensation for the down payment, housing loan and supplementary payment and the value-added part of the house during the marriage, and the value-added part of the house shall be calculated according to the joint repayment of the husband and wife multiplied by the net appreciation rate of the house.
9. If the house is acquired during the marriage relationship and the property right is registered in the names of both parties, it shall be recognized as the joint property of the husband and wife. The loan for the purchase of the house should be a joint debt of the husband and wife. One party pays the down payment for the house with personal property, and the property is divided after deducting that part of the payment when dividing the property.
10. During the existence of the marital relationship, the self-occupied house and the value-added part of the house purchased by one party with the full amount of the personal property before the marriage belong to the personal property before the marriage and do not belong to the joint property of the husband and wife.
11. Where the two parties are unable to reach an agreement on a house jointly owned by husband and wife that is not suitable for division and use, the people's court shall give full consideration to the contribution of the house, the living situation of the house, and the size of the contribution of both parties to the house when dividing the house, and the party with the greater contribution shall take care of it when dividing it.
12. If the house where the husband and wife live is the welfare housing of one party's unit, and when the property is divided in divorce, there is a dispute between the two parties about the housing reform of the house and the ownership cannot be proved, and the ownership of the house has not been registered with the state housing management department, the people's court should not determine and deal with the ownership of the house, and the two parties may claim their rights separately after the house has obtained full ownership.
13. During the existence of the relationship between husband and wife, if one of the parents registers his or her demolition and resettlement house in the name of one of his or her children, the house shall be regarded as a gift from the parents to one of his or her children, and the immovable property shall be recognized as the personal property of one of the husband and wife.
14. If a husband and wife are demolished or renovated during their marriage, and one of the husband and wife is not registered on the homestead use certificate but the household registration falls on the renovated house, the party who has not registered the homestead use certificate still has the right to divide the part of the compensation equally, because the homestead use right is based on the household.
15. The house has not gone through the corresponding approval and licensing procedures for housing construction in accordance with the law before construction, and has not completed the formalities since the construction has not been completed, nor has it gone through the registration procedures for house ownership, and its property rights have not been effectively established. Before the competent authority has disposed of the disputed property or gone through the corresponding formalities in accordance with the law, the court can neither confirm the right on its own, nor can it divide it. If the parties still cannot reach an agreement on the ownership of the disputed property after the competent authority has disposed of the disputed property or gone through the corresponding formalities in accordance with law, the dispute over the ownership of the disputed property may be handled separately.
16. During the period of separation of the husband and wife, if one party separately finances the purchase of the house, and the other party has no evidence to prove that there was economic confusion between the two parties during the period of separation, and there is no evidence to prove that the purchase price of the house is the joint property of the husband and wife before the separation of the two parties, the house should not be recognized as the joint property acquired during the existence of the husband and wife relationship.
4. One party is at fault
1. Where one of the husband and wife fails to inform the other party of the fact that the husband and wife conceived with another person before marriage, causing the other party to mistakenly believe that the child is being raised as a biological child for many years, causing serious mental damage to the infringed party, the people's court shall determine the amount of moral damages to be paid by the tortfeasor, taking into account factors such as the degree of fault of the tortious act, the means, occasions, and modes of conduct of the infringement, the consequences caused by the tortious act, the infringer's economic ability to bear responsibility, and the local standard of living.
2. During the existence of the marital relationship between the husband and wife, if one party violates the duty of loyalty and has an improper relationship with another person, he or she shall pay compensation for moral damages to the other party, and the people's court may determine the amount of compensation for moral damages in accordance with the principle of determining the amount of moral damages in civil tort, in combination with the agreement of both parties and the local social and economic level. When dividing the joint property of the husband and wife in a divorce, the innocent party may divide the property more.
3. Where one party conceals, transfers, sells, destroys, or squanders the joint property of the husband and wife, or falsifies the joint debts of the husband and wife in an attempt to encroach on the property of the other party during or before the divorce proceedings, the property may be divided less or no share.
4. The act of using the joint property of the husband and wife to repay their personal debts before marriage violates the property rights of the other party, and shall be compensated when the property is divided in the divorce.
5. Division of other property
Housing Provident Fund
When the husband and wife divide their property in divorce, the housing provident fund actually obtained by one of them during the existence of the marital relationship shall be divided as the joint property of the husband and wife. Considering that the withdrawal of the housing provident fund should meet the conditions stipulated by the relevant laws, and combined with the actual situation of mutual payment between the two parties at the time of divorce, in order to facilitate enforcement, one party can pay the other party according to the discount of the housing provident fund, and the balance of the housing provident fund account of one party can no longer be divided.
Company equity
The equity of a limited liability company acquired by one of the spouses with joint property is the joint property of the husband and wife. If one of the husband and wife, as shareholders of a limited liability company, does not agree to the division of equity on the grounds that they have not actually contributed capital, it shall be deemed to have agreed to the transfer. If the other shareholders of a limited liability company voluntarily waive the right of pre-emption of the split shares, the other party has the right to request the division of the shares.
In a "husband-and-wife company", the profits of the relevant company belong to the property of the company's legal person, not the joint property of the husband and wife, and cannot be directly divided in a divorce dispute without the company's resolution of the company's profit distribution plan or the written unanimous consent of the company's shareholders.
3. Personal insurance
If the insured and the insured are both husband and wife of an insurance policy purchased with the joint property of the husband and wife, and the insurance item is still in the effective insurance period at the time of divorce, and the policyholder chooses to continue to take out the insurance at the time of divorce, one of the policyholders shall pay half of the cash value of the insurance policy as economic compensation to the other party.
Death benefits
Death compensation is based on the material compensation paid by the deceased to his close relatives after the death of the deceased, and its content is compensation for the overall expected income of the deceased's family, which is personal and exclusive. The formation of the right to claim death compensation and the actual acquisition of compensation occurred after the death of the deceased, and it was not compensation for the loss of property and life of the deceased, and did not fall within the scope of the deceased's estate. The division of the death compensation shall be distributed among the close relatives of the deceased, taking into account factors such as the distance between the right holder and the victim, the closeness of their common life, the degree of economic dependence on the victim and their living conditions.
5. Value
When dividing the marital property in a divorce dispute, the value of the property can be determined by the parties through negotiation; If the negotiation fails, the court shall comprehensively consider the registration entity, business coherence, stability, maximum efficiency, participation in the operation and other factors, and divide the entity to determine the entity that the husband and wife will continue to operate after the divorce.
6. Military transfer expenses
In the case of one-time expenses such as demobilization allowances and self-employment expenses that are divided and distributed to military personnel, the number of years of marital relationship between the husband and wife is multiplied by the annual average, and the amount obtained is the joint property of the husband and wife.
7. **Options
From the perspective of the nature of ** options, when employees exercise their rights, they can get certain income, and the income from individual ** options is generally regarded as salary income. Therefore, the ** option obtained by one party during the existence of the husband and wife relationship shall belong to the joint property of the husband and wife and shall be divided according to law. The number of exercisable ** option shares and ** market value shall be based on the date of the conclusion of the court argument. The spouse who is not an employee of the company is not allowed to exercise his rights in his or her own name after the divorce, and can only choose to receive economic compensation.
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