How to deal with the unregistered marriage cohabitation relationship in Ningbo

Mr. Wang and Ms. Li have lived together as husband and wife for many years without having registered their marriage, and they have a son together. The two parties are now experiencing a breakdown in their relationship, and they have disputes regarding child custody and the division of property. In a nutshell: For unmarried cohabiting couples who have not registered their marriage, the parties do not enjoy the rights and obligations of spouses; property acquired during the cohabitation period is treated as general joint ownership (with each party retaining ownership of property for which they can prove their individual contribution); child custody shall be governed by the relevant provisions on parent–child relationships, and non-marital children shall enjoy the same rights as marital children.

1. Legal Status: Cohabitation is not marriage, but it is still protected by law.

Article 1,049 of the Civil Code stipulates that both parties intending to marry shall personally apply for marriage registration at the marriage registration authority; if they meet the requirements prescribed by this Law, the registration shall be granted and a marriage certificate issued; upon completion of the marriage registration, the marital relationship is established. Unregistered cohabitation between a man and a woman does not create marital effects and is not subject to the matrimonial property regime, mutual support obligations, inheritance rights, or divorce provisions. However, the law does not allow a vacuum of rights and interests in cohabitation: Article 3 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 if a party files a lawsuit only to request the dissolution of the cohabitation relationship, the people's court will not accept it; if it has already accepted it, it will rule to reject the lawsuit; if a party files a lawsuit due to disputes over property division or child support during cohabitation, the cohabitation, the people's custody, the cohabitation, the people's relationship, ", however, the issue of property and children" needs to be managed ".

The boundary of de facto marriage should be clearly defined: 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; if they live together without registration after that date, they will no longer recognize de facto marriage and can only be treated as cohabiting (Article 7 of the relationship of marriage. In determining the rights and obligations following the termination of a cohabitation relationship, one must first ascertain whether the situation falls within the time frame applicable to de facto marriage, and then decide whether to apply divorce-related rules or rules governing the division of property in cohabitation.

2. Property Division: Capital Contribution and Contribution

During cohabitation, the marital property regime does not apply to the division of property. The general principles are as follows: property for which each party can prove their individual contribution shall belong to that party; property purchased with joint contributions shall be owned as tenants in common in proportion to each party’s contribution; where contributions cannot be distinguished and the property is deemed to be jointly owned, it shall be divided based on the extent of each party’s contribution and the principle of fairness. The common situation is split: if one party purchases the house in its own name, it shall be owned by that party, and the other party shall prove that it has contributed to the division; If both parties jointly contribute to the purchase of the house and register in the name of both parties, the share shall be confirmed according to the proportion of capital contribution, and the presumption of insufficient capital contribution certificate shall be jointly shared. Wages and incomes during cohabitation shall be owned by each other (different from marital common property system).

Risks are concentrated in the commingling of funds: During cohabitation, for major expenditures such as purchasing a home or a vehicle, be sure to retain bank transfer notes and a written funding agreement specifying each party’s contribution ratio; cash contributions should be supported by withdrawal records and corroborated by witness testimony. If the parties are unable to reach an agreement upon separation, they may file a lawsuit for the division of property acquired during cohabitation. The court shall determine ownership based on proof of contributions and factual evidence; where the evidence is insufficient, the court shall make a ruling in accordance with the circumstances.

3. Child custody: Non-marital children shall receive the same protection as marital children.

Article 1,071 of the Civil Code stipulates that non-marital children shall enjoy the same rights as marital children, and no organization or individual may harm or discriminate against them; the biological father or mother who does not directly raise a non-marital child shall bear the responsibility for paying child support for minor children or adult children who are unable to support themselves. The same rules apply to the determination of custody of children as those born in wedlock: the principle of following the mother shall be taken as the principle under the age of two; Comprehensive judgment shall be made according to the principle of most favorable to minor children when they have reached the age of two; Respect their true wishes when they have reached the age of eight (Article 1084 of the Civil Code); The maintenance fee shall be determined on the basis of 20% to 30% of the total monthly income (Article 49 of marriage and family. The biological father must first establish his paternity through a paternity test or by filing a lawsuit to confirm the parent–child relationship before addressing issues of child support and custody—this is a prerequisite unique to custody cases involving non-marital children.

Special hints are needed: if a spouse has a child born to cohabitation with another person, the biological mother may claim alimony; if a spouse has cohabitation with another person, the other spouse may claim compensation for divorce damages according to Article 1091 of the Civil Code, and the wrong party may be involved in the criminal liability of bigamy (bigamy living together in the name of husband and wife).

4. Other issues related to the termination of cohabitation relationships

The first is the return of bride price: for those who have not registered their marriage but have lived together, according to Article 6 of the judicial interpretation involving bride price in 2024, the court will decide whether to return and the proportion according to the time of living together, the situation of pregnancy, the fault of both parties, etc.-for those who have lived together for a long time and have given birth, the return proportion is low. Second, inheritance: the cohabiting partner is not the legal heir, and the other party cannot inherit as a spouse after the death of one party. Third, regarding debts: In principle, any debt incurred by one party during the cohabitation period shall be borne by that party individually; debts arising from joint business operations or joint consumption shall be shared in proportion to each party’s contribution, and the presumption of marital joint liability shall not apply.

5. Operational steps

1. Determining the nature of the relationship: The date of February 1, 1994, serves as the threshold for determining whether a de facto marriage exists, thereby deciding whether divorce rules or cohabitation rules shall apply.
2. Negotiate child support: determine the ownership of the custody, the amount and payment method of the maintenance fee, and the visiting arrangement.
3. Sort out the property: each capital contribution certificate, the list of jointly purchased assets, the joint operating accounts, and determine the share according to the capital contribution and contribution.
4. The lawsuit that cannot be negotiated: only the lawsuit of property division and child support can be accepted by every grass-roots court in Ningbo, and the proof of capital contribution and evidence of parent-child relationship should be prepared when the lawsuit is filed.
5. Protecting Children’s Rights: When necessary, first file a lawsuit to establish the parent–child relationship, and then assert claims for child support and visitation rights.

6. Gifts, betrothal gifts, and debts during cohabitation

Property transactions during cohabitation are handled in three categories. One is a large payment for the purpose of marriage (the nature of bride price), which is returned in principle if both parties have not registered or lived together; For those who have not registered but have lived together, they shall be returned as appropriate according to Article 6 of the Judicial Interpretation on bride price in 2024 (see this series of special articles on bride price). Second, in the case of a general gift that has been actually delivered and is not subject to any conditional stipulations, it generally cannot be revoked at will; however, if one party makes a gift of substantial assets such as real estate or vehicles on the condition of “marriage,” and that condition has not been fulfilled, the other party may request the return of the property or compensation in its monetary value. Third, the debt, during the period of cohabitation, one party in the name of the individual in principle to repay the debt, does not apply to the husband and wife joint debt presumption rules. During the period of cohabitation, the mutual gift and loan should be clearly separated: the transfer should be marked with "loan" or "gift", and the large amount of capital transactions should be written with a debit note or agreement, otherwise the qualitative dispute will last for a long time after the break-up.

Parent-child relationship confirmation and upbringing implementation of 7. illegitimate children

The upbringing of a non-marital child is premised on the establishment of the parent–child relationship. If the biological mother sues the biological father for alimony, the father-child relationship must be proved first: if the birth medical certificate states the biological father, it can usually be directly identified; If it is not stated or denied by the biological father, if one party applies for paternity test and the other party refuses to cooperate without evidence to the contrary, the court may determine that the claim of the party confirming the paternity relationship is established (Article 39 of the (I) for Interpretation of Marriage and Family). The statute of limitations and procedural rules governing a claim for recognition shall be governed by the provisions applicable to status‑related cases and shall not be subject to the general statute of limitations for claims. Practical points for the implementation of maintenance: first, maintenance shall be calculated from the date of prosecution, and those not paid before can be claimed together within a reasonable range; Second, the standard of maintenance for illegitimate children is the same as that for legitimate children, which is determined on the basis of 20% to 30% of the total monthly income. Third, if the biological father refuses to recognize and refuse to identify, he shall apply for enforcement after presuming paternity through litigation. Fourth, in accordance with article 1071 of the Civil Code, "the same rights as children born in wedlock" are claimed together in inheritance disputes. It is recommended that the biological mother promptly secure evidence of the parent–child relationship (e.g., birth records, paternity test results, records of parent–child interactions) to avoid delays that may complicate the presentation of evidence.

8. the drafting points of the breakup agreement

Cohabitation breakups differ from divorces in that they lack the oversight of a civil registration process, and disputes are often resolved through “separation agreements.” An enforceable breakup agreement proposal contains six items: first, the relationship confirmation, which states that both parties shall terminate the cohabitation relationship and do not interfere with each other from a certain date; The second is the property arrangement, which lists the ownership, discount compensation amount and payment period of real estate, vehicles, deposits and financial management item by item. The third is the arrangement of children, specifying the ownership of custody, the amount and payment method of alimony, visiting time and handover method; The fourth is the division of debt, it is stated that the debts under their respective names shall be borne by each, and the settlement and recovery of common debts shall be agreed upon; fifth, the household registration and documents, involving the transfer of household registration, the change of children's names, and the clear processing time limit for the handover of documents; sixth, the non-entanglement and breach of contract clause, which stipulates that one party violates the agreement in breach of contract or compensation. The agreement shall be signed in writing and kept by both parties; for agreements involving substantial assets, notarization or drafting by a professional is recommended to enhance its evidentiary force and enforceability. Please note: A separation agreement is not enforceable against bona fide third parties. Even if the agreement stipulates that “the debt shall be borne by the man,” the creditor may still claim the joint debt from both parties; internal recourse shall be governed by the terms of the agreement. Clauses in the agreement pertaining to child custody shall continue to be reviewed based on the best interests of the child, and the agreement may not be used to deprive the child of their rights.

Class Case Reference: Yuyao People's Court (2016) Zhejiang 0281 Minchu No. 9330 Case, both parties cohabited after the wedding and did not register the marriage, and the court ordered to return the bride price of 70000 yuan; the man also claimed that the down payment of the house jointly funded during the cohabitation was not supported because there was no evidence of capital contribution. It can be seen that when the cohabitation relationship is terminated, the property is in principle determined according to the contribution, and the party with insufficient evidence shall bear the adverse consequences. Trial Court: People’s Court of Yuyao City Case Number: (2016) Zhe 02

81Min Chu 9330 No.

9. FAQ

Myth 1: Living together for many years constitutes a de facto marriage.

Error. Unregistered cohabitation after 1 February 1994 no longer recognizes new de facto marriages and does not automatically produce marital validity regardless of the number of years of cohabitation, only property and children are protected by law.

Myth 2: Property acquired during cohabitation is automatically divided equally.

Error. Cohabitation is not subject to the marital property regime; division of assets must be proven based on contributions and financial input, and each party’s income generally remains their own.

Misconception 3: You can file a lawsuit to “divorce.”

Error. Those who have not registered their marriage can only sue for the division of property and child support during the period of cohabitation, and the court will not accept the request for "dissolution of cohabitation" itself (except for the cohabitation of a spouse with another person).

Misconception 4: Child support for non-marital children is set at a lower standard.

Error. Children born out of wedlock are equally protected as children born in wedlock, and the standards for maintenance and the rules for determining custody are completely consistent.

If you buy a house together during cohabitation and only write the name of one party, can you split up?

Yes, but to prove the contribution. If joint contributions can be proven, the property shall be divided in proportion to the respective contributions; the party whose name is on the title must provide evidence to prove that the funds were their own. Transfer notes, contribution agreements, and joint repayment records are key evidence, and cash contributions are difficult to identify.

After a breakup, if the child’s surname is changed, is the other party’s consent required?

Needed. The change of the surname of a minor child generally requires the consensus of both parents, and the other party who changes the surname without authorization may request the restoration of the original surname; the change of surname does not affect the obligation to pay alimony, and parents may not refuse to pay alimony because of the change of surname of the daughter.

During our cohabitation, my partner secretly took out a loan without telling me—am I obligated to repay it as well?

Generally not returned. Cohabitation does not apply to the presumption of joint debt of the husband and wife, and the borrowing for personal consumption is borne by the borrower.

Where is the cohabitation breakup agreement going to be notarized?

Notary offices in Ningbo’s urban areas and all counties (county-level cities) can handle such matters; as long as the agreement does not violate mandatory legal provisions and the expressions of intent are genuine, it can be notarized. For matters involving the transfer of real estate, the notarial certificate may be accepted as one of the registration documents, subject to the specific requirements of the accepting agency.

How should a small shop jointly run during cohabitation be divided upon breaking up?

First look at the registration and capital contribution: the registered operators of individual industrial and commercial households claim business rights and interests, and the other party must prove the fact of joint capital contribution and joint operation; the partnership or company is distributed according to capital contribution and contribution, and those with unclear accounts can apply for audit. The capital contribution certificate and business records are the core evidence.

During cohabitation, a child is born, but the man refuses to acknowledge paternity and also refuses to undergo a paternity test. What should be done?

can sue to confirm the parent-child relationship and apply for paternity test. If the man refuses to cooperate without evidence to the contrary, the court can presume that the claim of one party to confirm the parent-child relationship is established (Article 39 of the Interpretation of Marriage and Family), and then claim alimony accordingly.

10. Practical Legal Insights

We have lived together for many years without a license. When our relationship breaks down, we are most likely to be mistaken for the same division as husband and wife. This is not the case under the law: cohabiting partners do not have the rights and obligations of spouses. Property acquired during the cohabitation period is treated as general joint ownership; if it can be proven that the property was contributed by each party individually, it shall belong to that party. Only when such proof cannot be provided may the property be divided equally as common joint ownership. Therefore, the first thing to deal with this kind of problem is to sort out the family's money account-who made the down payment, who repaid the loan, who paid the decoration and large expenses, and solidify these relationships with transfer records, contracts and invoices.

Children are harder than property: children born out of wedlock have the same rights as children born in wedlock, and the party who does not directly support them has to bear the maintenance fee. If necessary, they should first confirm their identity through parent-child relationship, and then claim the cost of support and education. Gifts, betrothal gifts and common debts during cohabitation are also high-frequency disputes, and the judgment also returns to the nature-whether it is a free gift, conditional payment, or common living expenses, the nature of the money is clarified, and whether it is returned or not is the basis. These disputes are often mixed with daily money transactions. The sooner the vouchers are sorted out, the less likely it is to be led by the other party.

Instead of being angry with each other when breaking up, it is better to write a breaking-up agreement, which makes clear the one-time agreement on property liquidation, child support and visitation, debt sharing and subsequent non-entanglement. The more specific, the less repeated. If the other party refuses to admit the account and refuses to negotiate, stop relying on verbal pulling, prosecute and submit complete sets of evidence as soon as possible. In particular, it is important to prevent one party from quietly transferring deposits during their common life, or disposing of the common property registered in their own name, and fixing clues as soon as they find abnormalities, the sooner the better.

Unregistered marriage cohabitation relationship, the law "does not protect the relationship, protect rights and interests": cohabitation itself is not protected by the marriage law, but property contributions, child support, claims and debts are handled according to their respective rules. Suggestions to the parties concerned: during the period of cohabitation, keep the vouchers of capital contribution, transfer and consumption, and sign a written agreement for large amount of joint purchase to indicate the share; Involving children, timely confirm the parent-child relationship, take the initiative to assume the obligation of raising, to avoid long-term suspension of rights; When the relationship breaks down, priority should be given to negotiation. If negotiation fails, it should be settled through property division and child support as soon as possible to avoid loss. If you choose to live together for a long time, it is recommended to make up the marriage registration and obtain the complete protection of the marriage system at one time.