How to divide the property during cohabitation in Ningbo? What is the difference with marriage?
Xiao Zhang has been living with her boyfriend for five years and they jointly run an online store; he contributed more of the capital, but the store is registered under his name. During the breakup, Xiao Zhang requested a division of the shop’s profits and the jointly purchased vehicle, but the man replied, “We never got married, so let’s just each keep what’s ours.” Disputes over the division of jointly owned property in cohabitation cases are not uncommon in Ningbo, and the rules governing their resolution differ significantly from those applicable to divorce-related property division. Conclusion: The cohabitation relationship is not protected by marriage and family, the personal and property relations of both parties are independent, and the common property system of husband and wife is not applicable; If there is an agreement on the property obtained during cohabitation, and if there is no agreement and negotiation fails, the respective income (wages, bonuses, labor remuneration, business investment, etc.) shall be owned by each other. The property purchased by the joint investment and the income from joint production and operation shall be based on the respective contribution ratio, taking into account the situation of living together, the presence of common children, the size of the contribution and other factors (Article 4 of the (II) 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).
1. cohabitation ≠ marriage: personal and property are more independent
In accordance with Article 1,049 of the Civil Code, where marriage registration has not been completed, no rights and obligations of a marital nature shall arise. The parties in a cohabitation relationship are independent in their personal relations (non-spouse rights, no inheritance rights, no maintenance obligations) and property relations (not applicable to the joint system of post-marital income), and in principle their respective income belongs to them. Compared with marriage, cohabiting parties are significantly weaker in terms of property protection: there is no statutory presumption of common property, no liquidation procedure and compensation for domestic work in the event of divorce, and no rule that all income is shared during the marriage. Therefore, property disputes arising from living together during cohabitation can only be dealt with back to the general civil law rules of "agreed priority, shared ownership, capital contribution"-which is the most fundamental difference between cohabitation and divorce division. For this very reason, it is far more important to enter into a written agreement when making substantial financial contributions toward the acquisition of assets during cohabitation than to resort to litigation afterward.
2. Explanation of Article 4, Section (II): Priority of Agreements and the Two-Tier Classification
Article 4 of the Interpretation (II) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's the People's Republic of China of China, which came into effect on February 1, 2025, specifically responds to the "analysis of cohabitation where both parties have no spouse": the property acquired during cohabitation shall be dealt with according to the agreement; if there is no agreement and the negotiation fails, the people's courts shall deal with the (I) separately according to the following circumstances-the wages, bonuses, labor remuneration, intellectual property rights income, the property inherited or donated by each party, and the income from separate production, operation and investment shall belong to each party; the property jointly funded by the (II) or the income from joint production, operation and investment and other indistinguishable property shall be based on the proportion of their respective contributions, the division takes into account factors such as common living conditions, the presence of common children, and the size of the contribution to the property. There are three main points of dismantling: first, "there is an agreement from the agreement", oral or written agreement does not violate the mandatory provisions of the law and public order and good customs, the court respects; Second, "their respective income belongs to their own", during cohabitation, one party's salary, gift, inheritance and separate investment income are not shared in principle due to cohabitation; Third, "joint investment is based on the proportion of capital contribution", co-funded purchase of saloon cars, co-operation of the store income, first look at the proportion of capital contribution, and then combined with the common life, children and contribution of the comprehensive adjustment. It should be noted that this article applies to cohabitation where "neither spouse has a spouse"; cohabitation where one spouse has a spouse is illegal cohabitation, and the disposal of property also involves the protection of the rights and interests of the legitimate spouse and the examination of public order and good customs, with stricter rules.
Breakdown of 3. Typical Situations: Disposition of Six Classes of Property
1. Wages and remuneration for services. each belongs to its own, even if the income of both parties is very different and one party has no income for a long time, cohabitation will not produce the obligation of "joint support"; however, the labor services paid for the family during the period of living together can be considered as a contribution factor when dividing the common property.
2. Joint operating income (online shop, studio, live account). For shops registered in the name of one party, first look at the registration and contribution: for those who jointly contribute or operate, the income will be divided according to the proportion of contribution; the operating properties such as online shops and live accounts involve the platform rules and account value evaluation, which can be evaluated through negotiation or entrusted evaluation, the Ningbo court has extended the scope of property division to new types of property such as virtual property and business accounts (according to the White Paper on the Trial of Marriage and Family Cases (2019-2021) of the Yinzhou Court).
3. Houses and vehicles jointly financed. The property shall be treated as jointly owned in proportion to the respective contributions; if registered solely in one party’s name, the registering party shall pay monetary compensation corresponding to their share or cooperate in registering the co-ownership. Proof of investment (transfer remarks, bank statements) is central to determining the shareholding interests.
4. Property voluntarily donated by one party. can be dealt with according to the relationship of gift, and generally can't ask for return; but the large payment (the nature of bride price) on the condition of marriage can be dealt with according to the rules of return of bride price after breaking up -- unregistered marriage should be returned in principle, comprehensive common living time, childbirth, reasons for non-registration, use of betrothal gifts, etc. are determined as appropriate (the Supreme People's Court's "Regulations on Several Issues Concerning the Application of Law in the Trial of Cases Involving betrothal disputes" implemented on February 1, 2024).
5. Debt during the period of living together. During cohabitation, the debts incurred by one party in his own name shall be borne by him personally in principle; if the debts are used for living and operating together and the other party benefits, they can be treated as joint debts and shared according to the proportion of capital contribution.
6. Children born during cohabitation. Cohabitation is not protected by marriage law, but children born out of wedlock have the same rights as children born in wedlock (Article 1071 of the Civil Code). The issues of raising, visiting and supporting fees are dealt with by reference to children born in wedlock, and the court will also take care of children as a discretionary factor when dividing property.
4. Comparison with the main differences in divorce division
The first is the scope of property: divorce is applicable to the system of joint property of husband and wife, and the income within marriage is shared and divided equally in principle; there is no such presumption for cohabitation, and each belongs to his own country and the joint investment is based on the capital contribution. Second, fault treatment: divorce has a system of damages (bigamy, domestic violence, etc.) and a rule of little division (property infringement); In the case of violence, abuse, transfer of property and other fault acts committed by one party in a cohabitation relationship, the court may incline to the innocent party when dividing the common property (comprehensive discretion), but there is no legal framework for divorce damages. Third, the procedure and status consequences: divorce must be registered or litigation to dissolve the marriage relationship, involving a cooling-off period, maintenance, maintenance, inheritance and other chain arrangements. Fourth, the rules of care: the division of divorce takes care of the rights and interests of the children, the woman and the innocent party in accordance with the law; the division of cohabitation is based on capital contributions, and care is reflected in discretionary factors rather than statutory principles. Overall, the level of property protection in cohabitation is lower than that in marriage, and a written agreement serves as a supplementary measure.
5. Operational recommendations and evidence list
Suggestions during the cohabitation period: 1. Sign a written agreement when purchasing assets (houses, vehicles, online stores, etc.) with large joint investment, and specify the proportion and ownership of capital contribution, and register as common ownership if conditions permit; 2. Keep the original evidence such as transfer records (use of remarks), operating accounts, chat records, etc.; 3. If joint operation is involved, agree on the income distribution and withdrawal mechanism, online shop, live account clear registration and valuation methods; 4. If the negotiation fails after the break-up, fix the capital contribution certificate as soon as possible and evaluate the application for property preservation to prevent one party from disposing of the common property; 5. Involving child support, refer to the rules of legitimate children to deal with and retain the support evidence. The core of the evidence list is: capital contribution documents, business and income records, the meaning of joint investment (agreements, chat records), and proof of common life and children.
6. common mistakes
Misunderstanding 1: "de facto marriage" after cohabitation for many years, divorce is divided according to divorce. After February 1, 1994, our country no longer recognizes de facto marriage (except for supplementary registration that meets the conditions), and the system of joint property of husband and wife is not applicable to the analysis of cohabitation property, and each belongs to each other and the joint investment is based on the capital contribution.
Misunderstanding 2: The name of the person registered is the name of the person, and the other party's contribution does not have to be returned. Joint capital contribution can claim share or discount compensation according to the proportion of capital contribution, and the capital contribution certificate is the key; capital contribution can be traced, and the property right depends on registration and agreement.
Misconception 3: If one cohabiting partner has no income, they can claim half of the other partner’s assets upon separation. No. Cohabitation does not give rise to a presumption of co-ownership of income, and the party without income may claim the division and discretionary care of the joint input rather than half of the other party's personal property.
Misconception Four: Expenses incurred during cohabitation constitute a joint investment. Daily consumption, rent, water and electricity and other living expenses belong to the common living cost, which is generally not considered as capital contribution. Only the money that can be proved to be jointly invested in the purchase of assets or operation will be treated as capital contribution.
7. Common Dispute Handling Process: Path Guidance from Breaking up to Referee
Different from divorce, there is no special procedure for the settlement of property disputes in cohabitation. Follow the general civil litigation path: the first step is to negotiate and reach a written agreement on the scope of common property, the proportion of capital contribution and compensation, and specify the time of separation and property handover; the second step of mediation is to apply to the people's mediation organization for mediation or mediation before litigation by the court, involving virtual property and business account valuation, first negotiate to determine the assessment method; the third step of litigation, to the defendant's domicile or habitual residence court (involving real estate can also be to the real estate court) to file a cohabitation relationship analysis dispute or common property division dispute, the choice of the case depends on the main dispute; the fourth step of execution, after the judgment of the other party's non-performance of the application for enforcement. In terms of the statute of limitations, the right to claim property is generally subject to a three-year statute of limitations; requests for the return of betrothal gifts are also subject to the statute of limitations and should be claimed in a timely manner after the breakup.
There are three special hints in the procedure: first, the cohabitation relationship itself does not need to be "dissolved", the court does not accept cases that simply request the dissolution of the cohabitation relationship, but only deals with property and children disputes (if the cohabitation of a spouse is involved, the court will not accept it and inform it to deal with it separately); second, property preservation is also applicable. If one party transfers common property at the initial stage of the breakup, involving the upbringing of children, with reference to the principles of divorce disputes, the wishes of children over the age of eight, domestic violence and other considerations are also applicable. It is recommended that the parties complete an inventory of assets and secure relevant evidence within one month after the breakup, reconcile all accounts related to “joint investments,” and then determine an appropriate negotiation plan or litigation strategy.
8. Frequently Asked Questions
How to divide the online store opened together during cohabitation?
In case of joint investment or joint operation, whether there is an agreement or not shall be considered first; in case of no agreement, the profit of the store shall be divided based on the proportion of capital contribution, taking into account factors such as common life and contribution. After the value of the store itself can be evaluated, one party can obtain and compensate the other party.
During cohabitation, if one party falls ill, is the other party obligated to provide support?
cohabitation does not produce legal maintenance obligation, but when the common property is divided, the court can take proper care of the sick party, or the party with better conditions can give a one-time economic help (the general practice of discretion).
Can the bride price given after the breakup be returned?
In principle, it should be returned if the marriage registration is not handled, but the amount of return will be determined according to the comprehensive consideration of the length of the common life, whether or not to give birth, the reasons for not registering and the use of the bride price, instead of the full amount of return.
How is child support calculated for children born to cohabiting parents?
Children born out of wedlock have the same rights as children born in wedlock, and the party who does not directly support them should bear the maintenance fee. The standard is the same as that of children born in wedlock, which is determined according to the actual needs of the children, the income of the other party and the local living standard.
Can I get back the daily transfer to the other party during cohabitation?
Generally not. Transfers of the nature of daily consumption and living expenses are regarded as common living expenses and do not give rise to the obligation of return; transfers that can prove that they are jointly funded in the acquisition of property or business inputs may claim a share or return according to the contribution; and large payments conditional on marriage (the nature of the bride price) are subject to the rules of the return of the bride price.
9. Lawyer's Practical Insights
After cohabitation and separation, the parties are most likely to talk with the expectation that "we are similar to husband and wife", and the result is that they run into a brick wall everywhere. In handling the case, it should be made clear that the cohabitation relationship is not protected by marriage and family, the personal and property relations of both parties remain independent, and the joint property system of husband and wife is not applicable. The basic logic of dealing with cohabitation property is that there is an agreement from the agreement; if there is no agreement and negotiation fails, the respective income shall, in principle, belong to each other, and the property purchased by the joint capital and the income from the joint production and operation shall be divided on the basis of the proportion of their respective capital contribution, combined with the common living conditions, the presence of children, the size of the contribution and other factors. There is a big difference between the rules and the division of divorce. Accept this premise first, and then the judgment will not deviate.
Specifically, the approach to handling different types of property also varies. For jointly funded real estate and vehicles purchased, the focus is to find out the relationship between capital contribution and registration. The income of jointly operated shops and online shops should be distinguished between input and labor contribution. Property under one party's name but actually used jointly requires evidence to explain joint contribution or common use. As for daily consumption and expenditure of a gift nature, it is usually no longer reversed. Since there is no presumption of common ownership, the burden of proof falls on the party claiming the division, so bank transfers, purchase contracts, operating accounts, chat confirmation and other traces are particularly important. Usually there is no trace, directly determines how much can be claimed when breaking up.
When it is really impossible to reach an agreement, the process is generally to negotiate by oneself first, to negotiate the part that can be clarified and form a written agreement; if the negotiation fails, the part of joint investment and joint operation can be divided through litigation.In practice, it is suggested that large amount of capital contribution, real estate registration and business capital contribution should be clearly agreed in writing or chatting at the early stage of communication. Don't think that "talking about money hurts feelings". It will be very passive to supplement the evidence until the breakup. In addition, the return of bride price or large amount of property should be judged in combination with the purpose of payment, the time of common life and the actual situation, and should not be generalized. By clarifying the rules and keeping the evidence well, the property issues of cohabitation can also be handled in an orderly manner.
The underlying logic of the division of cohabitation property is "there is no presumption of marriage, everything depends on agreement and evidence of contribution": there is agreement from agreement, there is no agreement to return to each other, and the joint investment is adjusted according to the proportion of contribution. Compared with marriage, cohabitation is weaker in protecting property. It is especially important to make a written agreement in advance-sign an agreement with large amount of capital contribution, note the purpose of transfer, and keep accounts for business operations. Only when we break up can we make clear and understand the "joint investment.