Insights

How to calculate the property of remarriage in Ningbo? List of dispute prevention for remarried families

Ningbo Author：LuXu WANG

left and ended again. In many people's eyes, it is "the original match is good", but in law, it is a brand-new starting point of property. To state the conclusion upfront: a remarriage does not have retroactive effect—property that was already clearly divided during the previous marriage remains each party’s premarital personal property and does not automatically revert to marital joint property; only income earned and property acquired after the remarriage registration are subject to the rules governing marital joint property. In order to restore the common ownership, a new agreement or name-adding behavior is needed. In order to reduce disputes in remarried families, it is the most effective way to write the list of pre-marital property and post-marital rules into a written agreement.

Legal characterization of 1. remarriage: identity recovery is not equal to property recovery

Article 1083 of the Civil Code of the People's Republic of China stipulates: After divorce, if both parties voluntarily wish to resume their marital relationship, they shall re-register their marriage at the marriage registration authority. The remarriage is a "new marriage" in nature-it restores the status of the spouse, and the marriage relationship is re-established from the date of re-registration, rather than "taking back" the previous marriage ".

Therefore, the property that has been divided and owned by them at the end of the previous marriage is still owned by them after the remarriage; the deposits, real estate, stock rights and so on under their own names before the remarriage belong to the personal property before the remarriage, and they will not participate in the division when they divorce again, unless otherwise agreed by both parties. The common misconception is that "remarriage, the previously separated suite has changed back to two people"-this kind of "restoration" does not happen automatically in law, and in order to re-share a certain property, there must be a new written agreement, name addition or joint contribution.

The ownership details of all kinds of property after 2. remarriage

category 1, property under their own names before remarriage: personal property, which does not participate in the division; including the income from the division of the previous marriage, personal savings and purchase before remarriage.

category 2, labor income and business income of both parties after remarriage: common property of husband and wife, which is consistent with the rules during the first marriage-salary bonus, production and operation investment income, intellectual property income, etc. (Article 1,062 of the Civil Code).

category three, inherited or donated property after remarriage: common in principle, but the will or gift contract clearly only belongs to one party is personal property (item 3 of article 1063).

Category IV, Post-marital income of personal property before marriage: Distinguish according to Article 26 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's Republic of the People's Republic of China -- the fruits (such as the interest of deposits before marriage) and the natural appreciation (such as the price of real estate before marriage increases with the market) belong to the individual; the operating income belongs to the common. The most typical point of disagreement is rent: the rent of pre-marital real estate after marriage is mostly recognized as operating income in judicial practice and may be classified as common property; If the pre-marital real estate uses common income to repay the loan or decorate, the other party may claim compensation for the principal and interest of the loan and the value-added part of the remarriage (explain that the compensation rules for joint repayment established in Article

78are also applicable to remarriage).

category five, personal real estate replacement before remarriage after marriage: if the new house is replaced with the full amount of the pre-marital real estate sales and the evidence chain is reserved, the new house may still be identified as personal property; if it is mixed with joint funds or registered in the names of both parties, it will be treated according to the joint property or the proportion of capital contribution, and the completeness of the evidence will determine the result.

Children of 3. remarried families are segregated from former marital property

Remarried families often involve children from previous marriages. There are three main points of isolation: first, in terms of property form, one party's gift to the children of the former marriage and the property reserved for the children of the former marriage should be clearly distinguished from the current family property to avoid disputes over inheritance and division after mixing; Second, in terms of identity arrangement, the beneficiary can be designated through will or insurance, and specific property can be left to the children of the former marriage-when there is no will, the remarried spouse and the children of the former marriage are both legal heirs (Article 1,127 of the Civil Code), and the distribution of the estate is completely in the legal order, which is very easy to cause conflicts. Third, in the arrangement before death, the flow of property is locked in advance by means of gift, insurance fund trust and written agreement, which is much lower than the cost of competing for property behind.

What needs to be reminded is that if the large amount of gift to the children of the former marriage uses the common property after remarriage without the consent of the current spouse, it may be determined to dispose of the common property without consent when divorcing again, and the current spouse can claim less or recover the property-directional arrangement, and must take the double insurance of "written consent of one's own money.

List of core terms of the 4. remarriage family agreement

  1. List of their respective pre-marital property: real estate, deposit, equity, financial management item by item and attached with vouchers;
  2. The mode of property after marriage: jointly owned or agreed to own separately, how to share the family expenses;
  3. Disposition rules for major property: large expenditures, guarantees and loans require written consent of both parties;
  4. Arrangements for children from a previous marriage: scope of gifts, amounts of financial support for education and healthcare, and inheritance reservations;
  5. personal real estate before remarriage post-marriage income attribution: how to determine the rent and value-added;
  6. Debt segregation: the rules of knowledge and signature of debt before remarriage and debt after remarriage;
  7. Default provisions for future partition or inheritance: ensure alignment between agreements and wills to prevent conflicting clauses.

The agreement must be in written form and kept separately, and the property involved can be notarized or registered by adding names to enhance the effectiveness; the content of the agreement must not violate the mandatory provisions of the law, and must not damage the legitimate rights and interests of children.

5. Common Misunderstandings and Positive Solutions

Misunderstanding 1: "The remarriage is equal to the automatic restoration of common property". Positive solution: remarriage only restores the status of spouse, not the common property.

Misunderstanding 2: "The real estate before marriage is for two people after remarriage". Positive solution: personal property is still personal property before remarriage.

Misunderstanding 3: "It is not necessary to discuss with the present for large gifts to former married children". Positive solution: The use of large gifts of common property must be approved by the spouse, otherwise it may be found that the common property is disposed of without authorization, and the divorce will be reduced or recovered.

Myth 4: “If I don’t make a will, my children from a previous marriage can still inherit according to my wishes.” Positive solution: The legal inheritance is distributed equally in the order of the heirs, the remarried spouse and the children of the former marriage have a share in the absence of a will, and the directional inheritance must be arranged by will, gift or insurance.

Myth 5: "It doesn't matter if the terms of the remarriage agreement are vague, but the feelings are good anyway". Positive solution: vague terms mean not signing-the list is not specified, the consent mechanism is not clearly written, when disputes occur, each holds the same word, and the agreement is useless.

Deduce example (example, fictitious): both parties remarry after divorce, the property that has been returned to one party before remarriage has been clearly divided in the previous divorce, and the property has not been re-agreed to be shared after remarriage. In the case of redivorce, the property is still recognized as the personal property of the remarried party before marriage is not divided, and the other party only gets compensation for the joint repayment and the corresponding value-added after remarriage; in another case, the remarried party used the joint income to give a large gift to the children of the former marriage, did not agree with the current spouse, and was found to have disposed of the common property without consent when divorcing again, and the current spouse claimed to receive partial support for a small share.

6. remarriage and debt succession

In addition to property, the direction of debt should also be calculated clearly. First, the personal debt before the remarriage is still the personal debt-the debt that has been determined to be borne by one party at the end of the previous marriage, the remarriage does not become a joint debt as a result of the remarriage, and the creditor cannot ask the spouse to pay it off jointly on the grounds that "you are together again. Second, the joint debt before the remarriage is not paid off, after the remarriage, the two parties are still jointly responsible for the settlement-the debt is not eliminated by divorce, nor because of the remarriage "come back", the proportion of the previous divorce agreement is only valid within the two parties, can not fight against creditors. Third, new debts incurred after remarriage shall be determined according to the rules of joint debts of husband and wife (Article 1064 of the Civil Code)-if one party to remarriage raises debts in the name of an individual and exceeds the needs of the family's daily life, it is in principle a personal debt, except for those used for common life, joint production and operation or subsequent ratification by the other party; if one party in a remarried family runs an enterprise and the other party does not participate in the business, special attention should be paid to the identification of the boundaries of "joint production and operation" to avoid muddleheaded debt. Fourth, be wary of the operational misunderstanding of "remarriage debt"-some people think that before remarriage to the other party's name, debt left in their own name can be "isolated", in fact, the transfer of property within marriage and malicious debt evasion in divorce proceedings and creditor avoidance litigation may be penetrated. There are only two positive solutions to the debt problem: clear written confirmation of their respective debts before remarriage, and written co-signing or clear use of large amounts of debt after remarriage.

The key points of the arrangement of 7. insurance, trust and directional inheritance

The choice of tools for the directional inheritance of remarried families directly affects whether the property can "follow your wishes". In the insurance arrangement, the writing method of the designated beneficiary is the key: if the "legal" is written, the insurance premium will be treated according to the estate and will enter the legal inheritance track, and the remarried spouse, the children of the former marriage and the current children may all participate in the distribution; If the name and proportion of the specific beneficiary are stated, the insurance premium will go directly to the beneficiary and does not belong to the estate, thus bypassing inheritance disputes. When writing a beneficiary, you should also pay attention to the same as the will-the will leaves the property to the children of the former marriage, the beneficiary of the policy is the current spouse, the two do not conflict, but if you want to make a certain fund "earmarked" (such as the education of the children of the former marriage), the combination of annuity insurance and designated beneficiaries is more secure. On the connection between trust and will, insurance fund trust and family trust can set the use of funds and the conditions of issuance in advance, which is suitable for families with large property and hope for cross-generational arrangements. Finally, a high-frequency misunderstanding is suggested: the oral agreement of remarried couples that "we will take care of our own children in a hundred years" does not have the effect of inheritance in law. when a will is not written, the legal inheritance is still evenly distributed according to the order of spouse, children and parents. oral promises are often worthless when inheritance occurs-only when the arrangement is made in writing is responsible for the children of both marriages.

Practical arrangements for daily financial management of 8. remarried families

In addition to the agreement, the daily financial management of remarried families decides whether the agreement can be implemented. Three practical aspects are worth learning. First, the account structure: it is suggested that the "common account and each individual account" should be operated on a two-track basis-the common account should be used for daily family expenses, mortgage, water and electricity, and children's education. Both parties should deposit and keep clear accounts on a monthly basis. Personal accounts retain their premarital property and personal income to avoid mixing family expenses with personal property, which will be clear at a glance when they are divided in the future. Second, the double-sign mechanism for large expenditures: major matters such as house purchase, car purchase, large-sum financial management, external guarantee, etc. must be agreed in writing by both parties, written in the agreement and put into operation-the bank reserves a double seal, and the financial account is set up for double confirmation to prevent problems before they occur. Third, regular reconciliation and voucher filing: make an inventory of common accounts, real estate, insurance policies and financial management at the end of each year, and file vouchers, contracts and transfer records on an annual basis, which is not only a family financial health examination, but also an evidence bottom account in case of future litigation. In particular, two types of funds that are easy to "leak" are reminded: first, the pre-marital account still has wages recorded after marriage-the part recorded after marriage is common property, so don't mistake it for "this account is mine"; The second is to set up education funds and insurance for children of former marriage. The payment account and source of funds should be clearly stated to avoid disputes over recovery caused by being deemed to use common property for the benefit of others.

9. Frequently Asked Questions

After remarriage, is the property divided by the previous divorce still common?

Not counting. The remarriage does not automatically restore the original common property that has been divided, and the property under their respective names before the remarriage is the personal property before the marriage, unless otherwise agreed or renamed by the parties.

Is the money I earn after remarriage still common?

Yes. After the remarriage, the labor income and business income of both parties belong to the joint property of the husband and wife in principle, which is consistent with the rules of the first marriage.

Who is the rental of the property after remarriage before marriage?

In judicial practice, rent is mostly recognized as operating income, which may be included in the joint property of husband and wife; the interest on premarital deposits belongs to the individual. There is a written agreement from the agreement.

How do you want to leave the house to your ex-married child?

Designate the targeted arrangement of the beneficiary through a will or insurance, and specify the scope of the gift to the children of the former marriage in the remarriage agreement, and obtain the written consent of the spouse when using the common property.

Do remarried families have to sign a property agreement?

Strongly recommended. Remarriage family property relations are more complex, written agreements set out pre-marital list, post-marital ownership and arrangements for their respective children, can significantly reduce the probability of future disputes.

10. Practical Legal Insights

The remarriage is like going back to the past emotionally, but it is a brand new beginning legally. Property that has been clearly divided and owned by each other at the time of divorce is still their premarital personal property after remarriage and will not automatically be converted back into common property. Many people assume that once a couple remarries, that apartment automatically becomes jointly owned again—this is a misconception. In order to re-share a property, there must be a new written agreement, name addition or joint contribution of such clear actions, otherwise the law will not automatically restore.

The separation of children and premarital property is more likely to cause disputes in remarried families. Before remarriage, it is better to make a list of the real estate, deposits and equity under their respective names in advance, write down the ownership and source, and both parties sign for confirmation and keep them separately. The upbringing and inheritance arrangements involving the children of the former marriage should also be made clear separately and should not be expected to be discussed later.After marriage, if one party uses the common income to repay the other party's pre-marital real estate loan, decoration, or one party's separate contribution to their own children, the corresponding compensation and ownership is also easy to dispute, it is recommended to leave a written record when these things happen.

The most effective way to avoid disputes is to write the rules into the agreement. The agreement can stipulate the ownership of property before remarriage, how to calculate the income after marriage, how to deal with the expenses for their respective children, how to share the common debts, the more specific the better, and notarization of property if necessary. At the same time remind, remarriage does not change the debt ownership that has been formed before marriage, one party's old debt before marriage will not become a common debt because of remarriage, but do not be persuaded by the statement that it is a husband and wife anyway, it does not matter to sign a word, easily in the other party's debit or guarantee on the name. To put the ugly words in front is more conducive to stabilizing the relationship.

The remarriage is a restart of feelings, but it is not a legal backtracking of property: it only restores the identity of the spouse and does not automatically tie back the property clearly separated from the previous marriage to the common community. Remarried families should put their trust on paper-the list of pre-marital property, the management mode after marriage, the mechanism of consent for major punishment, and the arrangement of their children. The more specific, the more convenient. The vague tacit understanding often becomes the most expensive price when it is divided again.