2012-05-26 19:57:52
Interpretation No. I of the Supreme People’s Court on Several Issues in the Application of Marriage
Promulgation date:
12-25-2001
Effective date:
12-27-2001
Department:
THE SUPREME PEOPLES COURT
Subject:
OTHER PROVISIONS
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Interpretation No. I of the Supreme Peoples Court on Several Issues in the Application of Marriage Law of the Peoples Republic of China
The Interpretations No. I of the Supreme Peoples Court about the Application of the Marriage Law of the Peoples Republic of China, which were adopted at the 1202nd Meeting of the Judicial Committee of the Supreme Peoples Court on December 24, 2001, are hereby promulgated and shall come into force as of December 27, 2001.
December 25, 2001
Interpretations No. I of the Supreme Peoples Court about the Application of the Marriage Law of the Peoples Republic of China
(Adopted at the 1202nd Meeting of the Judicial Committee of the Supreme Peoples Court on December 24, 2001 Judicial Interpretations No. 30 [2001])
With a view to correctly try the cases of marriage and family disputes, interpretations are hereby made about the relevant issues concerning the application of the Marriage Law by the peoples courts in accordance with the Marriage Law of the Peoples Republic of China, Civil Procedural Law of the Peoples Republic of China and other laws:
Article 1 The "family violence" as mentioned in Articles 3, 32, 43, 45 and 46 of the Marriage Law refers to a behavior whereby a person causes certain physical or mental injuries to his family member(s) by beating, binding, forced restriction of personal freedom or by other means. Durative or frequent family violence constitutes maltreatment.
Article 2 The circumstance that "a person who has a spouse but co-habits with another person" as mentioned in Articles 3, 32 and 46 refers to a person who has a spouse continuously and stably live, not in the name of husband and wife, together with any person of the opposite sex other than his (her) spouse.
Article 3 If any party initiates a lawsuit based on Article 4 of the Marriage Law, the peoples court shall not accept the case. If the peoples court has accepted such case, it shall make a ruling to dismiss the lawsuit.
Article 4 If both the man and woman make up their marriage registration under Article 8 of the Marriage Law, the validity of the marital relations shall be calculated from the time when both parties conform with the substantial conditions for getting married as described in the Marriage Law.
Article 5 For any man and woman who fail to go through the marriage registration formalities as prescribed in Article 8 of the Marriage Law but live together in the name of husband and wife, if they initiate a lawsuit in the peoples court to request for divorce, they should be treated differently:
(1)Before the Regulation on Marriage Registration was promulgated and implemented on February 1, 1994, if both man and woman meet the substantial conditions for getting married, the case shall be treated as de facto marriage.
(2) After of the Regulation on Marriage Registration was promulgated and began to be implemented on February 1, 1994, if both man and woman meet the substantial conditions for getting married, the peoples court shall inform them that they should make up the marriage registration before the case is accepted. If they fail to make up their marriage registration, the case shall be treated as dissolution of cohabiting relations.
Article 6 With regard to any husband and wife who fail to go through the marriage registration formalities as described in Article 8 of the Marriage Law but cohabit in the name of husband and wife, if either dies and if the other claims for the inheritance right in the name of his (her) spouse, the case shall be dealt with according to the principle of Article 5 of these Interpretations.
Article 7 The subject that has the right to file an application with the peoples court for declaring a registered marriage as invalid marriage in accordance with Article 10 of the Marriage Law includes the parties concerned to the marriage and the interested parties. The interested parties include:
(1) the close relatives and grassroots organizations of the parties concerned if the application for declaring the marriage as invalid is filed on the ground of bigamy,
(2) the close relatives of the party (parties) who has (have) not attained to the legitimate age for marriage if the application for declaring the marriage as invalid is filed on the ground that either party (both parties) has not (have not) attained to the legitimate age for marriage;
(3)the close relatives of the parties if the application for declaring the marriage as invalid on the ground that both parties are in the kinship that is forbidden from getting married; or
(4)the close relatives living together with the party who has suffered from any disease that is held by medical science as rendering a person unfit for getting married and the disease has not been cured after marriage.
Article 8 Where a party files an application with the people s court for declaring the marriage as invalid in pursuance of Article 10 of the Marriage Law, if the circumstance under which the invalid marriage has disappeared when such an application is filed, the peoples court shall not support the application.
Article 9 When the peoples court tries a case of declaring a marriage invalid, if mediation is not applicable to the trial of the validity of the marriage, it shall make a judgment under the law. Once a judgment on the validity of marriage is made, it shall have legal force.
Where a case involves property partition and children fostering, it may be mediated. Where an agreement is reached upon mediation, a mediation document shall be created. If either party (both parties) refuses (refuse) to accept the judgment on property partition and children fostering, the party (parties) may appeal against it.
Article10 The word "intimidate" as mentioned in Article 11 of the Marriage Law means that the doer forces the other party to go against his genuine will to marry him (her) by threatening to injure the life, physical health, reputation and property of the other party or his (her) close relatives.
Only the intimidated party himself (herself) in a marriage relationship may plead for revoking the marriage.
Article 11 Where the peoples court tries a case brought by a party concerned in a marriage for revoking the marriage on the ground that he (she) was intimidated, it shall apply the simplified procedures or ordinary procedures.
Article 12 The term "one year" as described in Article 11 of the Marriage Law is not applicable to the provisions on the suspension, interruption or extension of the limitations of actions.
Article 13 The term "invalid ab initio" as mentioned in Article 12 of the Marriage Law means that a marriage shall be determined as not subject to the protection of law from the very beginning only as of the time when it is declared invalid or revoked in accordance with the law.
Article 14 Upon application of a party concerned, if the peoples court declares the marriage invalid or revocable in pursuance of the law, it shall capture the marriage certificates of both parties and shall mail the judgment which has become effective as well as the marriage certificates it has captured to the local marriage registration administrative organ.
Article 15 When a marriage is declared invalid or revocable, the property obtained by both parties during the cohabiting period shall be treated as being in their co-ownership unless evidence shows that it is owned by one party.
Article 16 When the peoples court hears a case of invalid marriage caused by bigamy, if the case involves disposal of property, the peoples court shall allow the party to the lawful marriage to participate in the litigation as a third party with independent claims.
Article 17 Article 17 of the Marriage Law, which provides that "both husband and wife shall have equal rights in the disposal of jointly owned property", shall be understood as follows:
(1)The husband and wife have equal right to dispose of their jointly owned property. If it is necessary to dispose of their jointly owned property for daily necessities, both the husband and wife shall have the right to make decisions; and
(2)When the husband or wife needs to make an important decision to dispose of their jointly owned property due to daily necessities, both husband and wife shall discuss the matter on an equal basis so as to reach an agreement. Where others have reasons to believe any common genuine expressions of both husband and wife, the other party shall not challenge any bona fide third party on the ground that he (she) does not agree or does not know.
Article 18 With regard to the circumstance that "if the third party has the knowledge of the said agreement" as mentioned in Article 19 of the Marriage Law, either the husband or wife bears the burden of evidence.
Article 19 The property owned by the husband or wife as described in Article 18 of the Marriage Law shall not change into property jointly owned by both parties.
Article 20 The "children without the ability to live an independent life" as described in Article 21 of the Marriage Law refers to the adult children who are unable to maintain their normal life because they are still accepting high school or inferior education, or have lost or have incompletely lost the work ability, or for any non-subjective reason.
Article 21 The term "aliments" as mentioned in Article 21 of the Marriage Law includes the expenses for life sustention, education, medical care, etc.
Article 22 When the peoples court hears a case of divorce, if the case conforms to any of the circumstances under which "divorce shall be granted" as prescribed in Paragraph 2 of Article 32, it shall not make a judgment to deny the divorce on the ground that the parties concerned are at fault.
Article 23 The circumstance that "the soldier is in grave fault" as described in Article 33 of the Marriage Law may be judged according to the provisions of Items (1) through (3) of Article 32 of the Marriage Law as well as other circumstances under which the soldier has committed any other severe fault and leads to break of mutual affection as husband and wife.
Article 24 If a valid judgment of divorce made by the peoples court does not involve the visit right and if the parties concerned bring a separate lawsuit over the visit right, the peoples court shall accept the case.
Article 25 During the course when the parties perform the valid judgment, ruling or mediation document, if a party concerned requests for suspending the exercise of the visit right, the peoples court shall make a ruling if it believes it is necessary to suspend the exercise of the visit right after it consults the opinions of both parties. After the circumstance for the suspension of the visit right disappears, the peoples court shall, upon application of the party concerned, inform him (her) that he (she) may resume the exercise of the visit right.
Article 26 The underage children, the father or mother who directly brings up the children, or any other legal custodian who bears the obligation of upbringing and educating the underage children shall have the right to request the peoples court for suspending the visit right.
Article 27 The circumstance under which "either party has difficulties in life" as mentioned in Article 42 of the Marriage Law means that it cant sustain the local basic living level by depending on the personal property and the property divided to him (her) at the time of divorce.
A party who has no domicile after divorce conforms to the circumstance of having difficulties in life.
At the time of divorce, one party may help the party who has difficulties in life by offering the dwelling right to or ownership of the house out of his (her) personal properties.
Article 28 The term "compensation for damages" as mentioned in Article 46 of the Marriage Law include compensation for physical and mental damages. If any mental damages are involved, the relevant provisions of the Supreme Peoples Court concerning the Interpretation of the Supreme Peoples Court on Problems Regarding the Determination of Compensation Liability for Mental Damages in Civil Torts shall apply.
Article 29 The subject of compensation liability as mentioned in Article 46 of the Marriage Law shall be the spouse of the innocent party in the litigation of divorce.
Where the peoples court makes a judgment of not granting the divorce in a case, it shall not support any compensation claimed by any party on the basis of Article 46 of the Marriage Law.
During the period of existence of the marital relationship, the peoples court shall not support any compensation claimed by a party based on this Article separately without filing a divorce lawsuit.
Article 30 When the peoples court accepts a case of divorce, it shall notify, in writing, the parties of the relevant rights and obligations as described in Article 46 of the Marriage Law. In the application of Article 46 of the Marriage Law, it shall differentiate the following circumstances:
(1)If the innocent party who meets the conditions in Article 46 of the Marriage Law, on the basis of this Article, wants to claim for compensation for damages in the peoples court, he (she) shall do so when initiating the lawsuit of divorce;
(2)If the innocent party who satisfies the conditions in Article 46 of the Marriage Law, is the defendant in a divorce litigation case and if he (she) does not consent to divorce nor claim for any compensation under this Article, he (she) may initiate a lawsuit separately within 1 year after the divorce;
(3)In a divorce litigation case where the innocent party is the defendant, if the defendant, during the first instance, fails to claim for compensation according to Article 46 of the Marriage Law, but he (she) claims for compensation in the second instance, the peoples court shall conduct a mediation. If the mediation fails, the peoples court shall inform the parties concerned to initiate a separate lawsuit within 1 year after the divorce.
Article 31 When a party concerned initiates a lawsuit in the peoples court in pursuance of Article 47 of the Marriage Law, the limitation of actions for requesting for dividing the property jointly by the husband and wife for a second time shall be two years, which shall be computed from the next day when the party finds the property.
Article 32 What Article 48 of the Marriage Law provides that the execution may be enforced by the peoples court in accordance with the law in case any person refuses to execute the judgment or decision on the visit of children refers to the taking of mandatory measures such as detaining and fining the relevant individuals and entities that refuse to help the other party to exercise the right of visit, and does not refer to the enforcement against the body of the children or act of visit.
Article 33 After the Marriage Law was amended, any case of marriage and family disputes which is being heard in first or second instance shall be governed by the amended Marriage Law. If any relevant judicial interpretation made by the Supreme Peoples Court earlier is contrary to these Interpretations, the latter shall prevail.
Article 34 These Interpretations shall come into force as of the date of promulgation.