Identification and division of marital property
The matrimonial property regime is a legal system that regulates matrimonial property relations and related issues. Including the ownership, management, use, income and disposal of the property of the husband and wife before marriage and after marriage; Settlement of marital debts and burden of common living expenses; Liquidation and division of marital property upon termination of marriage. Here, the author mainly analyzes the principles of the identification and division of the joint property of the husband and wife and the personal property of one party.
1. Joint property of husband and wife
Joint property refers to the property acquired by the husband and wife during the existence of the marital relationship and which should be jointly owned by the husband and wife. China's matrimonial property system implements a joint ownership system, and in principle, the husband and wife do not consider the size of their contribution to the property or the existence or level of income, and both parties enjoy the same right to dispose of the joint property.
In accordance with the provisions of the Civil Code and relevant judicial interpretations, the following property acquired by husband and wife during the existence of marriage shall be jointly owned by husband and wife:
a).Salary, bonusesRemuneration for services
Salary, bonus income, remuneration for labor services, and various welfare policy incomes, subsidies, bonuses, benefits, etc. of one or both parties during the existence of the husband and wife relationship.
b).Income from production, operation and investment
During the existence of the marital relationship, one or both of the husband and wife are engaged in production, business and investment.
c).Intellectual Propertyof earnings
The income from intellectual property rights refers to the property income actually obtained or expressly available during the existence of the marital relationship, including the income from intellectual property rights such as copyrights, trademark rights, inventions and creations. The income from intellectual property as the joint property of the husband and wife must have three characteristics: first, the income must be obtained during the existence of the marital relationship; second, the income must have been actually obtained or has been clearly achievable; Third, the income must be property income.
iv).Property acquired by inheritance or gift
Property acquired by one or both parties as a result of inheritance and acceptance of gifts during the marital relationship. In the case of inheritance income, it refers to the acquisition of property rights, not the actual possession of property. Even if there is no actual possession before the termination of the marriage, as long as the inheritance takes place during the existence of the marital relationship, the inherited property is the joint property of the husband and wife.
If it is determined in the will or gift contract that the property belongs to only one party, it is not the joint property of the husband and wife. For example, if the father's father left a will before his death, specifying that the property left by him after his death would be owned only by the man, then this part of the property is not the joint property of the husband and wife, and the woman cannot enjoy the rights and interests.
v).Housing allowanceHousing Provident Fund
It includes the housing subsidy and housing provident fund actually obtained or should be obtained by both parties during the existence of the husband and wife relationship.
f).Pension insuranceCompensation for bankruptcy resettlement
It includes the pension insurance money and bankruptcy settlement compensation actually obtained or should be obtained by both parties during the existence of the husband and wife relationship.
vii).sectionDemobilization costsorSelf-employment fee
In the case of one-time expenses such as demobilization allowances and self-employment allowances paid to military personnel, the number of years of marital relationship between the husband and wife shall be multiplied by the annual average, and the amount obtained shall be the joint property of the husband and wife. The annual average is the amount of the total amount of the above-mentioned expenses to be paid to the military personnel on a specific period of time. The specific length of service is the difference between the average life expectancy of 70 years and the actual age of the military at the time of enlistment.
For example, a soldier enlisted as a soldier at the age of 18, received a settlement fee of 130,000 yuan after retiring, and the marriage relationship lasted for 6 years. Then the part of the joint property of the husband and wife should be 130,000 * 6 years (70 years - 18 years) = 150,000 yuan. 11 remaining50,000 yuan is the personal property of the military party.
b).one sidePersonal propertyproduction
The personal property of the husband and wife refers to the personal property of the husband and wife before marriage or the property acquired during the existence of the marital relationship, which has a strong personal exclusive nature or cannot be used by others. The following property shall be the personal property of the husband and wife:
a).Property owned by the individual and property rights acquired before marriage
It includes the income of personal labor before marriage, property received as a gift, inheritance or bequest, and other legal income, as well as property acquired for the purpose of marriage.
b).Everyday items with their own characteristics
Such as personal clothing, wheelchairs for the disabled, crutches, etc.
c).After marriage, one of the spouses has a personal nature of benefits, welfare property, life insurance premiums, and disabilityCompensation feesPersonal InjuryIndemnityetc
For example, the medical subsidies brought back by demobilized soldiers from the army and the subsidies for returning to their hometowns for production, and the honorary prizes and bonuses received by one party in social contributions after marriage.
iv).After marriage, one of the spouses inherits, accepts gifts, and bequeathsClearly aloneacquired property or property rights.
c).Marital property agreement
The husband and wife may agree that the property acquired during the marriage relationship and the property before the marriage shall be owned separately or jointly, or partly separately or partly jointly, and the agreement shall be in writing. The agreement between the husband and wife on the property acquired during the marriage and the property before the marriage is legally binding on both parties.
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