Insights

How is marital relocation compensation allocated after a divorce in Ningbo?

Ningbo Author：LuXu WANG

during the marriage between mr. zhang and ms. li, mr. zhang's house was demolished before marriage, and he got a sum of demolition compensation. After the divorce, Ms. Li advocated her own share of the compensation and asked for a split. Such disputes are not uncommon in Ningbo, given the extensive urban renewal and relocation projects taking place in the old city. The conclusion is that the compensation for the demolition of personal houses before marriage belongs to personal property in principle. However, the compensation is often not monolithic-if it includes resettlement compensation, temporary resettlement subsidy, transition fee and other items for family members calculated according to the family population, or includes compensation corresponding to the addition (expansion and decoration) of common property after marriage, the part jointly owned by husband and wife can be divided. The first step in dealing with such disputes is to split the compensation according to the composition.

1. Legal Basis and the Principle of "Form Transformation"

Article 1063 of the the People's Republic of China Civil Code stipulates that the premarital property of one party is the personal property of the husband and wife; Article 1062 stipulates that the property acquired during the existence of the marriage relationship is the joint property of the husband and wife in principle. Article 26 of the (I) of the Supreme People's Court on the Interpretation of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that the fruits and natural appreciation of the personal property of one spouse after marriage shall remain the personal property of one spouse.

The house before marriage is demolished after marriage, and the compensation for the value of the house itself is legally regarded as the "morphological transformation" of the property before marriage: the house is gone, but the property value corresponding to the house is converted into compensation, and the nature of the ownership does not change due to the morphological change-just as the pre-marital property is still the pre-marital property after the deposit is withdrawn and deposited into a new account. Therefore, compensation that simply corresponds to the value of the house itself (housing value compensation, property rights exchange corresponding to the resettlement house), in principle, belongs to the personal property of the person being demolished, and does not become common property because the demolition occurs within marriage.

But the demolition compensation is not all for the house itself. The expropriation compensation scheme usually includes a variety of items: housing value compensation, relocation fee, temporary resettlement subsidy (transition fee), loss of suspension of production and business, relocation incentive signed on schedule, and resettlement subsidy calculated for the registered population. The nature of different projects is different: the housing value compensation corresponds to "things" (pre-marital real estate) and belongs to individuals; The resettlement subsidy calculated by population corresponds to "people" (family members), of which the part belonging to the spouse and other family members belongs to the corresponding members or their common-this is the core source that can be divided in the compensation; Incentive compensation depends on the specific expression of local policy documents; compensation corresponding to the addition (expansion, decoration) after marriage is common property because the addition occurs during the marriage and usually uses common property or common labor.

Item-by-item dismantling of the composition of 2. compensation

Upon receiving a demolition compensation agreement or a compensation breakdown, you can categorize each item according to the following criteria:

  1. Compensation for the value of the house (including resettlement housing provided through property rights exchange): corresponding to the value of the demolished house itself. This compensation for the pre-marital house belongs to the individual who is demolished, and the corresponding compensation for the reconstruction, expansion and addition of common property after marriage is common property.
  2. Relocation fee, temporary resettlement subsidy (transition fee): For actual expenditures related to relocation and temporary resettlement. If the transitional period occurs during marriage and while the family is living together, any related subsidies are typically used to cover household transition expenses and, in practice, are allocated based on the family’s shared living needs; claims may be made for the spouse’s share. The amount involved is generally not substantial, and the primary focus of disputes usually centers on the population resettlement allowance.
  3. Population-based resettlement subsidies, housing subsidies: The portion calculated based on the registered household population constitutes the property interests of each such individual. If the spouse belongs to the registered population at the time of collection and the compensation scheme is the object of calculation, the corresponding share shall be attributed to the spouse personally or as joint property.
  4. Compensation for the loss of production and business suspension: for the loss of the house used for operation. If the house is registered in the name of an individual but is used for joint operation after marriage, the part of the loss compensation corresponding to the joint operation may involve common interests.
  5. Incentive compensation such as signing and relocation bonuses: You must refer to the original expropriation and compensation plan to determine whether the bonus is calculated based on the “house,” the “household,” or the “number of residents.” There is room for recognition as common property if it is rewarded by household, by population and occurs within marriage.

In the actual operation, the party who advocates the division should first obtain the compensation plan announced by the expropriation department of the place where the house involved in the case is located and the demolition agreement of himself, and check the compensation items and calculation criteria item by item-the compensation plan states that the project "according to the registered population x ten thousand yuan per person" and the project "according to the construction area of the house to be expropriated" have completely different ownership. If the self-access is blocked, an application for investigation and evidence collection may be submitted in the lawsuit, requesting the court to obtain the demolition agreement and compensation details retained by the collection department.

3. Subdivision of situations and segmentation methods

Subdivided by time and status, there are mainly several types of scenarios for the division of compensation:

  1. received compensation for the house before marriage, demolition after marriage and divorce: Dismantle the composition first -- the compensation for the value of the house belongs to the individual, and the part of the compensation for family members such as population resettlement can be divided; if the negotiation fails, it will be claimed together in the divorce proceedings.
  2. joint reconstruction after marriage and demolition after expansion: common property or common labor is invested in reconstruction and expansion, and the corresponding replacement value compensation is divided according to the proportion of input and contribution, which is usually based on common property.
  3. The resettlement house with the property right exchange has not been delivered yet: the part of the resettlement house corresponding to the premarital house belongs to the individual, and the resettlement area increased due to population factors belongs to the corresponding members; the division of the resettlement rights and interests can be agreed in advance in the divorce, and registration can be handled after the house is delivered.
  4. At the time of divorce, the demolition agreement was signed but the compensation was not paid.: The allocation of the compensation payment may be stipulated in the divorce agreement, or it may be left unresolved for the time being and asserted once it is actually received—joint property that was not addressed during the divorce may still be subject to a separate lawsuit for division after the divorce.
  5. Demolition only after divorce: The judgment benchmark is the marital status and the composition of compensation items at the time of demolition. The compensation corresponding to the house before marriage still belongs to the original owner, but the compensation share due to the joint addition before divorce can still be claimed. Pay attention to the timely fixed evidence.

What needs to be prompted is the procedural path: property such as compensation for demolition and relocation that has not been dealt with at the time of divorce can still be sued for property disputes after divorce; the appeal of this kind of lawsuit is "dividing the remaining common property", and whether the compensation belongs to the "common property that has not been dealt with at the time of divorce" depends on the above project splitting conclusion. The party advocating division bears the burden of proof for the "part belonging to the common property", and the compensation details, the flow of accounts and the expropriation scheme are the three most basic sets of evidence.

4. evidence list and operation steps

To handle the division of demolition compensation funds, follow these steps:

  1. Preserve the original materials: relocation compensation and resettlement agreement, detailed list of compensation, announcement of expropriation and compensation scheme, bank receipt record, and copy and keep them as soon as possible.
  2. Obtain collection documents: apply to the expropriation and compensation implementation unit in the place where the house involved in the case is located for obtaining the compensation scheme and compensation details; if self-obtaining is blocked, submit an application for investigation and evidence collection in the lawsuit and request the court to obtain it.
  3. item-by-item classification: divide and check according to the four categories of "house value compensation-population resettlement compensation-incentive compensation-additional compensation after marriage", and calculate the part belonging to common property.
  4. Evidence of fixed ownership: the ownership certificate of the house before marriage, the purchase price certificate (proof obtained before marriage), the capital contribution certificate attached after marriage, decoration contract and invoice.
  5. Negotiation or Litigation: Negotiate a property division plan and execute a written agreement; if no agreement is reached, raise the issue concurrently in divorce litigation, or file a separate lawsuit for post-divorce property disputes after the divorce has been finalized.

5. Analysis of Common Misconceptions

Misunderstanding 1: "The compensation for demolition and relocation is the common property of husband and wife, and everyone who sees it has a share". Error. The compensation shall be divided according to the project: the value compensation of the house itself corresponds to the premarital real estate, which belongs to the personal property of the demolished person; Only the part of the family members involved, such as the resettlement compensation calculated by population and the corresponding compensation added after marriage, may belong to the common property, and the spouse is less than "half of the total amount".

Misunderstanding 2: "As long as the house is demolished after marriage, compensation is considered as common property".Error. The judgment benchmark is not "demolition time" but "compensation project nature". If the house is demolished before and after marriage, the compensation for the value of the house still belongs to the individual; what the spouse can claim is limited to the part of the compensation involving common interests.

Misunderstanding 3: "The population resettlement fee is for the head of the household, but the spouse cannot get it".Error. Resettlement subsidies calculated based on the registered population constitute a property interest belonging to each individual in that population. When land is expropriated and the spouse is included in the registered population, with the compensation plan being calculated on that basis, the corresponding share shall belong to the spouse personally and is independent of the household head’s entitlement.

Myth 4: “If the divorce agreement doesn’t specify a compensation payment, it can never be awarded.” Error. The joint property of the husband and wife that has not been processed at the time of divorce can still be divided separately after the divorce-Ninghai Court (2011) Yongning Minchu No. 1335 judgment confirmed that the property that has not been divided at the time of divorce can still be distributed between the two parties according to the capital contribution after subsequent disposal. The same applies to the unpaid compensation rights and interests for demolition and relocation. If any omission is found after divorce, another lawsuit shall be filed in time.

Misconception 5: “Whose name is on the compensation agreement, that person gets the money.” Error. The subject of the compensation agreement and the substantive attribution of the compensation rights and interests are two issues: the agreement may only be signed in the name of the registered person of the demolished house, but the resettlement share calculated by population belongs to the registered population, and the divorce division is determined according to the substantive rights and interests rather than the signature of the agreement.

Litigation Points of Property Disputes after 6. Divorce

If the division of compensation needs to go to court, the details of the procedure determine the success or failure. On the cause of the case, the division of compensation not processed at the time of divorce shall apply to the "property dispute after divorce. In terms of jurisdiction, it is under the jurisdiction of the basic people's court of the defendant's domicile, which can be accepted by the courts of all districts (counties and cities) in Ningbo. On the material, in addition to the complaint and proof of identity, the original divorce agreement or judgment, the demolition compensation agreement and details, the compensation to the account flow, the claim belongs to the common property ownership basis-the original divorce document "does not involve compensation" status is the basis for the establishment of the case, must be submitted together.

The limitation issue is a high-frequency dispute of property disputes after divorce: one party conceals and transfers common property (the situation of Article 1092 of the Civil Code), and if the other party finds out after divorce and requests for another division, it should be claimed within three years from the date of discovery; for the division request of common property that is not involved by both parties at the time of divorce and newly discovered afterwards, in practice, it is mostly treated as common property division, however, in order to avoid the loss of evidence and the other side of the defense, should still be prosecuted as soon as possible. It should also be noted that if the original divorce agreement explicitly stipulates a waiver or has already disposed of any compensation rights, any subsequent claim will face the obstacle of whether such waiver is valid. When signing a divorce agreement that involves future entitlements such as compensation payments or resettlement housing, be sure to think carefully before putting pen to paper; where necessary, include provisions in the agreement to address “unresolved rights.”

On the evidence-proof strategy in litigation, the plaintiff should make "the split form of compensation" as the core evidence: list the name, amount and calculation basis of the compensation items item by item (whether by population/area), and mark the items and reasons that the plaintiff thinks belong to the common property, which is convenient for the judge to examine item by item, and is more convincing than the general proposition of "split the compensation by half.

class case reference: the court held that the marriage in the name of the family to jointly apply for land grant to build a house, the building rights and interests have been transformed into demolition rights and interests, belonging to the joint property rights and interests of husband and wife, the divorce is not divided should be divided; the defendant on the grounds that it does not belong to the scope of civil litigation, the plaintiff is not qualified and other defenses are not established, ordered to pay the plaintiff compensation of 450000 yuan. Trial Court: Case No. of Jiangbei District People's Court, Ningbo City, Zhejiang Province:(2017) No. 920, Minchu, 02

05District, Zhejiang Province

7. FAQ

Is all demolition compensation considered marital joint property?

No. The compensation corresponding to the value of the pre-marital house itself belongs to personal property (morphological transformation), and only the share of the family members involved, such as the resettlement compensation calculated by population and the corresponding compensation added after marriage, may belong to the common property. It cannot be said in general terms that "the proceeds of demolition after marriage are common property".

Once the property is demolished after marriage, does that mean half of the compensation will be divided?

No. The prerequisite for division is that the compensation includes a share of the couple’s joint property, and that share must be calculated based on the components of the compensation. The compensation for the value of the house belongs to the individual who is demolished, and the spouse can claim the corresponding share of population resettlement, additional compensation, etc., and the amount is usually not "half of the total amount".

At the time of divorce, the demolition agreement has been signed but the payment hasn’t been received yet—what should I do?

The distribution scheme of compensation can be specified in the divorce agreement and the payment arrangement after the payment is received; if it is not handled, it can be sued and divided separately after the compensation is actually received. It is suggested that the "signed but not received" compensation rights and interests should be clearly written in the divorce agreement to avoid disputes over the ownership of rights and interests in the future.

The resettlement allowance is calculated per person—does the spouse qualify for a share?

Yes. Resettlement subsidies calculated based on the registered population constitute a property interest belonging to each individual in that population; if, at the time of expropriation, the spouse’s household registration is listed at the expropriated residence and the spouse falls within the scope of persons considered under the compensation plan, the corresponding share shall be owned individually by the spouse. The household registration book and the population registration records at the time of expropriation are key pieces of evidence.

8. Lawyer's Practical Insights

When handling disputes over demolition compensation, the first step is not to rush into filing a lawsuit; instead, you should break down the components of the compensation. The house before marriage is demolished after marriage, and the compensation corresponding to the value of the house itself belongs to personal property in principle, and does not change its nature because the form changes from house to money;However, the compensation plan often includes resettlement subsidies calculated according to the registered population, temporary resettlement transition fees, relocation incentives signed on schedule, and compensation corresponding to joint investment in expansion and renovation after marriage. These parts may have common elements. As soon as the parties came up, they advocated that the whole transaction should be divided or not given, mostly because they did not do the splitting work.

From the perspective of operation rhythm, you should go to the expropriation department, street or original property right unit as soon as possible to obtain the expropriation compensation resettlement plan and itemized compensation details, match the source and calculation basis of each sum of money, and at the same time fix the ownership certificate of the house before marriage and the capital contribution certificate attached after marriage. For the part that has been divided or spent, the transfer record should be used to restore the whereabouts of the funds, so as to prevent the other party from spending the money early to perfunctory. Only by clearly identifying what is individual and what is common can there be a basis for the proposition and the negotiation can be carried on, otherwise it is easy to be led by the other party in terms of numbers.

On the point of negotiation and litigation, it is suggested that the common parts that can be strived for should be listed separately as the bargaining space, and the individual parts should not be fixed, so as to avoid being mixed up by the other party with the way of half-way. If the money is not processed at the time of divorce, and there is no need to wait until the omission is found afterwards, you can claim the path of property disputes after divorce, but you should sort out the evidence as soon as possible and pay attention to the limitation period. The most labor-saving approach to such cases is to dismantle the composition clearly, prepare solid documents, and then decide to what extent.

The core methodology of the division of compensation for house demolition before and after marriage is "dismantling item by item and taking the right seat": the house value compensation belongs to the individual following the house's premarital attribute, the population resettlement compensation belongs to the family members following the population attribute, the additional compensation after marriage belongs to the husband and wife following the joint investment, and the incentive compensation depends on the caliber of the scheme. For the parties concerned, the most important thing is to keep the compensation agreement, details and expropriation plan when the demolition occurs, and to calculate the divisible shares item by item in the event of divorce. If negotiation fails, it shall be claimed in divorce proceedings or property disputes after divorce in a timely manner, and the ability to prove evidence shall not be lost due to loss of evidence (loss of agreement and nowhere to check the details). Demolition policies vary from project to project, and checking the original compensation plan of the project before claiming rights is the safest starting point.