Insights

Can Ningbo ask for a refund of living expenses after parting from cohabitation?

Ningbo Author：LuXu WANG

Xiao Wang and Xiao Li lived together for three years, during which they shared the rent, utilities and daily living expenses. After the breakup, Mr. Wang believed he had contributed more financially and filed a lawsuit demanding that Ms. Li reimburse him for a portion of their shared living expenses. Can he get it back? The conclusion is: the cohabitation relationship is not protected by the marriage law, and the daily expenses for common living expenses during the cohabitation period belong to common consumption, which cannot be returned after separation. However, the property (real estate, vehicles, etc.) purchased in large amount during the cohabitation period can be divided according to the proportion of capital contribution according to the general common relationship, and the money with loan agreement can be returned, large amounts of property paid for the purpose of marriage (the nature of the bride price) may be claimed to be returned if the conditions are not fulfilled. The core is "according to the nature of the property", rather than "general ledger" like divorce ".

The legal position of 1. cohabitation: not protected by marriage, but the dispute is actionable

Article 1049 of the the People's Republic of China Civil Code stipulates that both the man and the woman who are required to get married should apply for marriage registration in person at the marriage registration authority; those who meet the requirements of this law will be registered and issued a marriage certificate; the marriage relationship will be established upon completion of marriage registration. If the cohabitation relationship is not registered for marriage, it does not produce the system of marital status and joint property of husband and wife, and the two parties do not apply the marriage system of joint property, mutual support and inheritance of husband and wife.

However, cohabitation is not a “legal vacuum.” Article 3 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that if a party files a lawsuit only to request the dissolution of the cohabitation relationship, the people's court shall not accept it; however, if the party files a lawsuit due to disputes over property division or child support during cohabitation, the people's court shall accept it. In other words, the court does not accept the "request to terminate the cohabitation relationship" itself, but the property division and child support disputes during the cohabitation period are fully actionable-in this case, Wang's claim is to return living expenses, is a property dispute, the court will accept and substantive review.

also need to clarify a time point: before the promulgation and implementation of the regulations on the administration of marriage registration issued by the Ministry of civil affairs on February 1, 1994, if both men and women have met the essential requirements of marriage and live together in the name of husband and wife, they will be treated as de facto marriage; after February 1, 1994, those who live together in the name of husband and wife without marriage registration will no longer recognize de facto marriage (Article 7 of the interpretation (I)), and will be treated as cohabitation. In other words, cohabitation after 1994, no matter how long and how deep the feelings are, does not automatically produce the system of joint status and property of husband and wife-this is also the institutional root of the system that cohabitation cannot "divide property like divorce.

Four types of rules 2. property treatment: daily expenses, large purchases, loans, gifts

Property transactions during cohabitation are subject to different rules according to their nature, which are compared by category:

  1. Daily common consumption (rent, utilities, catering, travel, etc.): It belongs to the common life consumption, and the part of the two parties' respective expenditures is regarded as the necessary expenses of the common life. After the breakup, the other party cannot be required to return the "extra part". Cohabitation for three years to share the rent, no matter who pays more, it is difficult to claim the return.
  2. Large property purchases (property, vehicles, etc.): The property purchased by joint investment during cohabitation shall be treated as common ownership, and divided according to the proportion of capital contribution when breaking up -- if one party's full capital contribution is registered in the name of the other party, it is necessary to judge whether it is gift, holding on behalf of others or loan in combination with the capital contribution certificate and agreement, which is more controversial.
  3. Borrowing: If one party explicitly borrows money from the other party during the cohabitation period and has the intention of borrowing money (transfer notes "borrow", chat records admit borrowing), it will be treated as a private loan, which should be returned and may involve interest, and the three-year statute of limitations applies.
  4. Large payment for the purpose of marriage (bride price nature): Treat according to the rules of bride price-if the marriage is not registered, it will be returned according to the provisions of article 6 of the bride price in combination with the time of common life, the situation of pregnancy and so on; small gifts for birthday and daily consumption expenses are not included in the bride price and will not be returned.
  5. General gifts: voluntary gifts (gifts, red envelopes, and consumption on behalf of others) to enhance the relationship during the period of cohabitation in love will take effect upon completion of the gift, and cannot be revoked after the breakup.

Different from the marriage relationship, cohabitation does not apply the compensation for housework in Article 1088 of the Civil Code, the compensation for divorce damages in Article 1091 and other systems-there is no "liquidation" channel in law for the cohabiting party's contributions (housework, companionship and care), and they can only protect themselves through property agreement and evidence.

3. situation subdivision and deduction: how to deal with five typical scenes

Put the rules into the scene and see the boundaries more clearly:

  1. During cohabitation, the rent shall be borne by one party: it belongs to the burden arrangement of common living and consumption, and the other party cannot be required to repay half of the rent after parting -- unless both parties have a written agreement that "the rent shall be borne and returned by the other party".
  2. One party contributes to buy a car and registers it in the name of the other party: If there is no written agreement, the court will judge by combining the capital contribution certificate and the use of the vehicle-if the capital contributor can prove the source of the purchase money and both parties have no agreement on the gift, they can claim the return according to the loan or unjust enrichment; if the gift is presumed only by the "love relationship", it may be difficult to recover.
  3. Co-funded house purchase, registered in the name of one party: Divide the common interests according to the proportion of capital contribution, and the registration party needs to return its capital contribution share and corresponding value-added to the other party; when claiming, there must be a transfer certificate to prove the fact of capital contribution.
  4. After adding the transfer note “Borrowing for home renovation,” we broke up.: If the loan agreement is clear, it will be returned according to the loan; if it is used for the decoration of the house where both parties live together and there is no loan agreement, it will be regarded as joint consumption or gift, which is difficult to claim.
  5. Break up without registration and living together for one year after paying the bride price: refer to the standard of the bride price case of yinzhou court (260000 yuan is paid, living together for more than one year, the woman's pregnancy miscarries, and the decision is to return 120000 yuan), and return the part according to the time of living together and the pregnancy situation.

It can be seen that almost all the winners and losers of cohabitation property disputes are in the "written agreement and transfer voucher": if the remarks are clearly written and the contract is signed, the rights will be guaranteed; everything depends on words and feelings, and after breaking up, it can only rely on the game of evidence fragments.

4. evidence list and case choice

When bringing up a property dispute of cohabitation, first choose the right cause: property division dispute during cohabitation (Article 3 of the (I) of Interpretation confirms that the court should accept it), marriage contract property dispute (involving bride price), private loan dispute (with loan agreement), and unjust enrichment dispute (with no agreement but no basis for the other party to obtain property) can be used as the entrance, depending on the nature of the payment.

The evidence list is prepared according to four categories: first, the capital contribution voucher-bank transfer record, WeChat Alipay flow, and the purpose indicated when transferring ("co-purchase money", "loan", "bride price") is the most profitable proof; second, the consensual voucher-written agreement, chat record, the statement about the nature of the money in the recording; third, evidence of living together-residence records, joint consumption records, children's situation (involving maintenance), used for discretionary and joint determination of betrothal gifts; Fourth, evidence of the status of property-registration information, purchase documents, list of surplus property. Electronic evidence shall retain its original carrier, and shall be notarized and preserved when necessary.

Analysis of 5. Common Misunderstandings

Misunderstanding 1: "Cohabitation and breakup can divide property and calculate the general ledger like divorce". Error. Co-habitation does not apply to the common property system of husband and wife, the property shall be treated according to the "respective ownership and general common", the joint acquisition shall be divided according to the proportion of capital contribution, the respective income and the property under the name shall not be implicated in each other, there is no "joint ownership of the income after marriage" rule, and there is no divorce-specific system such as compensation for housework.

Misunderstanding 2: "All expenses during cohabitation can be recovered". Error. Daily common consumption such as rent, water and electricity, food and beverage belongs to common living expenses and cannot be returned. What can be claimed is the large payment of loans and bride price and the common purchase of property that should be divided according to the proportion of capital contribution.

Misunderstanding 3: "Living together for many years and holding a banquet is a de facto marriage". Error. After February 1, 1994, cohabitation without marriage registration will no longer be recognized as a de facto marriage, regardless of whether it is alcohol or not and how long it takes to live together; the determination of de facto marriage is based on the state of common life before February 1, 1994.

Misunderstanding 4: "If one party pays more living expenses, the breakup should be compensated". Error. During cohabitation, one party voluntarily undertakes more living expenses, which belongs to the category of emotional contribution and living arrangement, and does not give rise to the right to claim compensation in law-this is the major difference between cohabitation and marriage. If you want to "pay with security", it should be realized through written agreement and property registration, rather than relying on the moral liquidation after the break-up.

Misunderstanding 5: "If you don't write a note on the transfer, you just say the nature". Error. Remarks are only one of the evidences. Chat records, purpose of payment, size of amount and payment scene will all affect the characterization. However, no remarks will significantly increase the difficulty of proof. Large amount of money transfer must indicate the purpose. Important money transactions will form written confirmation, which is the most practical self-protection in cohabitation relationship.

6. child support and visitation arrangements after dissolution of cohabitation

After the dissolution of cohabitation, if children are born, the problems of raising and visiting are often more difficult than property. The level of rules is basically the same as that of divorce: children born out of wedlock enjoy the same rights as children born in wedlock, and parents still have the obligation to raise, educate and protect their children; The direct dependents have the right to claim alimony, which is also determined according to the actual needs of the children, the affordability of the parents and the local living standard (those with fixed income are measured by the proportion of 20%-30% of the total monthly income), the other party should cooperate. Different from divorce, the cohabiting parties do not have ready-made documents such as divorce agreement and divorce judgment, and the custody arrangement often needs to be negotiated from scratch: it is suggested to sign a written agreement on the ownership of custody, the amount and payment method of alimony, and the visiting time and method, specifying the specific date and handover method; If the negotiation fails, the dispute over alimony shall be filed in the name of the children, or the dispute over the custody of the child in the cohabiting relationship shall be filed.

Parent-child relationship confirmation is the front link of cohabiting children: if the father or mother requests to confirm the parent-child relationship, it needs to provide necessary evidence (living together record, birth certificate, communication record, etc.). If the other party refuses to do paternity test without justifiable reasons, the court can presume that the confirmation party claims to be established according to Article 39 of the (I) of Interpretation. After the parent-child relationship is confirmed, there is a basis for claiming alimony, visitation rights and even inheritance rights. It is also necessary to remind: parents who give birth to unmarried children may encounter cumbersome materials when handling birth registration and household registration for their children, which can be handled step by step according to the requirements of the local health and public security departments, and seek assistance from civil affairs, women's federations and other institutions when necessary, and do not delay their children's settlement and enrollment due to cumbersome procedures.

Case Reference: In the case of No. 19299 Minchu, Zhejiang 0212, Yinzhou District People's Court (2018) of Ningbo City, the man transferred 13400 yuan to the woman and noted that it was used to repay the mortgage. The court held that it could not prove that the money was directly used to repay the mortgage, and there was no written agreement between the two parties on "return if not married". It was a gift and rejected the request for return. It can be seen that the financial transactions during cohabitation and love, lack of loans or conditional agreements, generally can not be returned. Trial Court: Ningbo Yinzhou District People's Court Case No.:(2018) Zhejiang 02

12Minchu No. 19299

7. Frequently Asked Questions

Can a cohabitation break-up divide property like a divorce?

No. Cohabitation does not apply to the common property system of husband and wife, the property of both parties shall be treated according to "their respective ownership and general common": the property under their respective names shall be divided according to the proportion of capital contribution, and there is no rule of "joint ownership of income after marriage and equal division of divorce.

Can I get back all the money I spent during cohabitation?

No. Daily common consumption (rent, utilities, meals) cannot be returned. Before filing a lawsuit, the scope of the claim should be rationally evaluated to avoid mixing the "emotional account" with the "property account".

Does living together for many years constitute a de facto marriage?

After February 1, 1994, cohabitation without marriage registration will no longer be recognized as de facto marriage, no matter how long cohabitation is; those who have met the substantive requirements of marriage and live together in the name of husband and wife before February 1, 1994 will be treated as de facto marriage. De facto marriages are treated in terms of property and inheritance as if they were formal marriages, yet the legal consequences differ significantly.

During cohabitation, a child was born—how is child support calculated?

The cohabitation relationship does not affect the parent-child relationship. Children born out of wedlock enjoy the same rights as children born in wedlock, and the standard is the same as the divorce situation (determined according to the proportion of 20%-30% of the other party's total monthly income combined with the actual needs of the children); Involving the confirmation of parent-child relationship, can be confirmed through paternity test and litigation.

8. Practical Insights from a Lawyer

If you want to get the money back after breaking up with cohabitation, the first thing you need to understand is that cohabitation is not protected by marriage, and the handling method cannot copy the general ledger of divorce. The law is more divided according to the nature of property: the daily expenses of living together, such as eating together, paying rent and water and electricity, are usually common consumption and cannot be returned in general. Large purchases of real estate, vehicles, etc., according to the general common relationship combined with the proportion of capital contribution treatment; There is a clear loan agreement, according to the loan claim; Large amounts of property paid for the purpose of marriage have room for return only when the conditions are not fulfilled. First, give each sum of money to a good category, and then talk about whether you can ask for it and how much you can ask for it.

After classification is proof.The boundary between common consumption and large capital contribution depends on the transfer records, remarks, consumption scenes and the agreement reflected in the chat. Whether a sum of money was borrowed or spent together often depends on whether there was an agreement to return it in the dialogue at that time. Real estate vehicles such as registered in whose name, the actual contribution of how much, but also to the registration information one-to-one correspondence. The nature of the request should match the evidence. If you advocate borrowing, you should look for traces of the agreement on borrowing. If you advocate dividing the common, you should focus on the proportion of capital contribution. If you choose the wrong cause of action, you may not be able to use all the materials.

The easiest pit to step on is to pack all the expenditures into a number and ask for a refund. As a result, most of them belong to common consumption and are rejected as a whole, and even the parts that could have been claimed are also implicated. Instead of seeking perfection, it is better to make a few sure strokes clear first, and the direction will be more stable. Attention should also be paid to the calculation of the statute of limitations, and do not delay the deadline in hesitation. If both parties already have children, upbringing and visiting are handled according to the relationship between parents and children, regardless of whether they are married or not. This part should be arranged separately and should not be discussed with the return of property, otherwise it is easy to take care of one thing and lose the other.

The rules of cohabitation property disputes can be summed up in one sentence: the law protects "property input" rather than "emotional contribution". Daily consumption is not returned, large capital contributions are divided proportionally, loans are repaid, and bride price is determined according to the rules of marriage contract-each of which depends on evidence. Three suggestions to cohabiting parties: first, the nature of large transfers must be stated in the remarks (loans, capital contributions for house purchase, bride price, etc.), and important agreements are completed in a written agreement, which is the only "amulet" after the breakup; Second, before jointly investing in the purchase of real estate vehicles, write down the proportion of capital contribution and ownership of property rights, and go through joint registration when necessary; Third, after the relationship breaks down, sort out the transfer records and vouchers as soon as possible, rationally evaluate the scope of claims, and claim rights within the statute of limitations in a timely manner to avoid delay leading to the loss of evidence.