Is Ningbo's monthly salary common after marriage?- Zhiheng Law Firm

first give a conclusion: in principle, the monthly salary after marriage belongs to the common property of husband and wife-the legal judgment of this money is based on "whether it is obtained during the existence of the marriage relationship", rather than "whose bank card has been entered". To exclude it from the marital property, there is only one way: both spouses must enter into a written agreement on the system of separate property, clearly specifying its scope. What is truly prone to accounting errors is the allocation of income that spans multiple periods, such as year-end bonuses, equity incentives, and housing provident fund contributions, as well as the determination of ownership over post-marriage income generated from pre-marital assets.

1. Legal basis and criteria for determining that post-marital wages are jointly owned property

The first paragraph of Article 1062 of the the People's Republic of China Civil Code stipulates: "The following properties obtained by the husband and wife during the existence of the marriage relationship shall be the common property of the husband and wife and shall be jointly owned by the husband and wife: (1) Wages, bonuses and labor remuneration; income from (II) production, operation and investment; income from (III) of intellectual property rights; and the property inherited or donated by the (IV), except those specified in Item 3 of Article 1063 of this Law; (V) other property to be owned jointly. Paragraph 2 of the same article further stipulates: “Husband and wife have equal rights to manage their joint property.”"

In contrast to the provisions, three elements of judgment can be disassembled:

Temporal requirement (most crucial): The property must have been acquired “during the subsistence of the marriage.” During the subsistence of the marital relationship, the period shall be deemed to commence on the date of marriage registration and terminate upon the completion of divorce registration, the entry into force of a divorce judgment or mediation statement, or the death of either party. Any monthly salary, overtime pay, or performance bonuses earned during the marriage—regardless of when the funds are actually received—shall be considered marital property.
type requirements: the provisions clearly list wages, bonuses, labor remuneration; operation, investment, intellectual property rights gains and inheritance gifts (not clearly only belong to one party) and so on are included together.
Basic requirements: Article (V) "Other jointly owned property" is concretized by Article 25 of the Interpretation (I) of the Supreme People's Court on the Application of Marriage and Family Code of the the People's Republic of China Civil Code of the People's Republic of China, that is, the income obtained by one party from personal property investment, the housing subsidy, housing accumulation fund, basic pension and bankruptcy resettlement compensation actually obtained or should be obtained.

Husband and wife have equal right to deal with common property. In principle, both parties should agree on the disposal of important property. Unauthorized disposal by one party may constitute unauthorized disposal.

2. The boundary between joint property and personal property

Article 1063 of the Civil Code lists the personal property of one of the spouses: (1) the premarital property of one of the (II); the compensation or compensation obtained by one of the spouses due to personal injury; the property determined to belong to only one of the spouses (III) in the will or gift contract; the daily necessities for the exclusive use of one of the (IV); (V) other property that should belong to one of the spouses.

To determine ownership, one must consider two factors simultaneously: first, whether the asset was acquired during the marriage; second, whether it possesses an inherent personal nature or is explicitly designated as belonging solely to one party.

Obtained before marriage, it still belongs to the individual after marriage: deposits, real estate, vehicles, equity, etc. before marriage will not be automatically converted into common property after marriage due to the continuation of marriage.
Acquired during marriage, but possesses personal characteristics.: The compensation and insurance claims obtained from work-related injuries, traffic accidents and medical damages belong to personal property based on personal dependence; whether the premium paid by family-funded insurance during the marriage is common property or not should be disassembled (see the practical tips at the end of the article for the caliber of Ningbo Intermediate People's Court).
those acquired within marriage but clearly only belong to one party: the property stated in the will or gift contract that "only belongs to a certain person" is personal property; those not stated are jointly owned by the husband and wife.

Once these two aspects become intertwined, it’s easy to conflate “my premarital savings” with “the salary accumulated after marriage.” In practice, many parties mistakenly believe that there is a house before marriage has a deposit, after marriage income "naturally belongs to their own", in fact, marital wages and premarital property must be listed separately, separately qualitative.

3. How should special income such as year-end bonuses, housing provident fund, and equity incentives be allocated?

Special income is considered “special” because its “time of receipt” often does not coincide with the “period during which the labor was performed,” and therefore these two aspects must be analyzed separately.

Year-end bonus: A year-end bonus is typically a reward for the entire period of employment during the previous year or the current year. If the appraisal period falls entirely within marriage, it is common property; if the appraisal period spans the point of marriage or divorce, in practice, it is generally converted according to the proportion of the month in marriage-for example, the year-end bonus of 54000 yuan corresponds to 12 months of the whole year, of which 7 months in marriage are counted as common property according to 31500 yuan. The conversion basis is the assessment period, not the bonus payment date.
housing accumulation fund and housing subsidy: according to item (II) of article 25 of the (I) of interpretation, the housing accumulation fund and housing subsidy actually acquired or should be acquired during the existence of marital relationship belong to common property. During division, the basis is typically the balance in the individual account contributed to during the marriage; the pre-marital balance in the account does not constitute marital property.
Individual pension account: As clarified in item (III) of Article 25 under Interpretation (I), it is considered joint property. If the divorce has not reached the retirement age and cannot actually be withdrawn, the amount paid in the personal account of the marriage and its interest may be claimed to be divided or discounted.
equity incentive and stock option: those granted within marriage and the conditions for exercising rights have been met within marriage are generally recognized as common property; those granted within marriage but agreed to continue to serve for several years after divorce before exercising rights, the court usually only includes the proportion corresponding to the service period within marriage into the division. Keep all grant documents, service-period agreements, and vesting records; it is difficult to reconstruct complex incentive plans based solely on verbal statements.
Reissue of wages and payment of unpaid wages: For those who are in arrears during pre-marital labor and reissue within marriage, the mainstream practice is to deal with them according to the proportion of entering marriage during the labor period.

The treatment of this kind of income directly determines which party the "hidden hundreds of thousands" belongs to when divorcing, and the evidence especially depends on the income certificate, assessment documents and deposit records issued by the unit.

4. To whom do the proceeds from premarital savings and premarital property belong after marriage?

Article 26 of the explanatory (I) stipulates: "The income generated by the personal property of one spouse after marriage, except the fruits and natural appreciation, shall be recognized as the joint property of the husband and wife. "This clause serves as the overarching provision for handling premarital property and its post-marriage income; the key lies in distinguishing among three categories:"

Fruits and income accruing to an individual: Natural fruits such as the interest earned on premarital deposits and rental income derived solely from the use of premarital property are, in principle, still considered the individual’s personal property.
Natural appreciation belongs to individuals: the appreciation of pre-marital real estate due to the rise of market conditions and the appreciation of pre-marital collectibles accompanying the market are natural appreciation because they are not put into post-marital labor and management, so they are not divided into common property.
Operating income and investment income shall be jointly owned.: The income generated by purchasing stocks, funds, financing and continuous operation and management with pre-marital deposits, and the income generated by renting the real estate before and after marriage and needing to be put into repair, collection and management labor, including the contribution of labor and management after marriage, are mostly recognized as common property in practice. The key to the distinction is not "when the principal came", but "whether labor and management were invested after marriage".

What needs to be pointed out is that the definition of rental rent of houses before and after marriage is not completely unified in different regions: the courts that tend to operate income will include it in common property, and some courts will treat it as individual according to fruits. When a large rent dispute is involved, the focus of proof should be judged in the light of recent similar judgments of the local court.

5. Wanting to turn wages into personal property: the establishment and proof of a written agreement

The first paragraph of Article 1065 of the Civil Code stipulates: "The man and the woman may agree that the property acquired during the existence of the marriage relationship and the pre-marital property shall be owned by themselves, jointly or partly by themselves or partly by themselves. The agreement shall be in writing. Paragraph 2 provides: “Any agreement between spouses regarding property acquired during the marriage as well as premarital property shall be legally binding on both parties.”"

Accordingly, a valid agreement on the regime of separate property must satisfy:

Written form: If you say orally that "each earns his own money and each spends his own money", and the other party denies it afterwards and there is no other evidence to prove it, it is almost impossible to get support, and the marital income is still treated as the legal common property.
The content is clear: specify the applicable object (marital salary, bonus, operating income or all the property), applicable scope (the property under each name belongs to each other, etc.) and effective time. A mere stipulation stating “each party’s income shall belong to that party” may, due to its ambiguity, be construed strictly in litigation.
can prove that: the agreement text is signed and dated by both parties; the notarization can significantly reduce the dispute of "whether I really mean it or not.
The validity of the third party is limited: according to the third paragraph of Article 1065, when the husband or wife has external debts, only if the relative party knows the agreement, can the debtor's personal property be paid off. In other words, the system of separate property primarily governs relations between spouses and does not automatically prevail against bona fide creditors who are unaware of such arrangements.

It is also necessary to distinguish "marital property agreement" from "divorce property division agreement": the former occurs during the existence of marriage and aims to arrange the property system; the latter takes divorce as the background, which is different in nature and effect rules and cannot be replaced by each other.

6. What should you do if your wages are transferred, hidden, or squandered?

Article 1092 of the Civil Code stipulates: "If one of the spouses hides, transfers, sells, destroys or squanders the common property of the husband and wife, or forges the joint debt of the husband and wife in an attempt to encroach on the property of the other spouse, the party may be divided less or not divided during the divorce and division of the common property of the husband and wife. After divorce, if the other party discovers any of the aforementioned conduct, they may file a lawsuit with the People’s Court to request a re‑division of the marital property."

Relief in the event of divorce division: If one party transfers a large amount of marital wages to his parents, relatives and friends, opens an account in the name of another person, or makes abnormal consumption or gambling profligacy in a short period of time, the other party can prove that he or she transfers and squanders common property, and request that he or she be divided less or not.
Action for Subsequent Division of Marital Property after Divorce: If such property is discovered only after the divorce, a separate lawsuit may be filed to request a further division. According to Article 84 of the (I) of Interpretation, the statute of limitations for the claim is three years, calculated from the date of discovery by the parties-the "date of discovery" is critical, and long-term laissez-faire will lead to the passage of the statute of limitations.
Advance relief within marriage: According to Article 1066 of the Civil Code, if one party hides, transfers, sells, destroys, squanders the common property of husband and wife or forges the common debt and other acts that seriously damage the interests of the common property, the other party can directly request the court to divide the common property during the existence of the marriage relationship without waiting for divorce.

The fixed evidence should be taken as early as possible: the inquiry and preservation of bank running water are limited by the storage period of the bank system, and the earlier it is retrieved, the more complete it will be; if the details of the other party's account cannot be obtained by itself, it can apply for a court investigation order in the lawsuit or be retrieved by the court according to the application. Electronic evidence such as WeChat chat and transfer screenshots is difficult to be accepted due to many defects in proof (Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021) also holds this observation), and should be based on official vouchers issued by banks and provident fund management departments.

7. Case breakdown and demonstration examples

Breakdown by account, distribution method and income type, the common conclusions are as follows:

If the salary is deposited into an old bank account opened before marriage, it still constitutes joint property, as the classification depends on the time of acquisition rather than the time the account was opened.
If wages are paid directly in cash by the employer: the nature of the funds as joint property remains unchanged, but the difficulty of providing evidence significantly increases; therefore, pay stubs, attendance records, and proof of income should be preserved.
the operating income of individual industrial and commercial households or freelancers on one side: it belongs to the production and operating income, and the income during the operating period after marriage is the common property, which should be based on the operating accounts.
New wages paid during divorce proceedings: those obtained before the divorce judgment or mediation takes effect are still common property and are often included in the division base in practice.

The following examples are deduced according to the common judgment standards (example, fictitious):(1) The man's salary after marriage is all deposited into his personal account, which accumulates about 620000 yuan in five years. When the court still determines that all of them are the joint property of husband and wife, and the woman gets the corresponding rights and interests according to the salary accumulation;(2) Both parties sign a written agreement before marriage to stipulate that "their salary and bonus shall be owned by their own after marriage, at the time of divorce, the man's post-marital salary was not included in the division of common property;(3) If one party transfers about 380000 yuan to his parents' account in batches within six months before the divorce proceedings and cannot explain the reasonable use, the court determines that it is a transfer of common property, and the division is about 20% less.

8. common mistakes

Misunderstanding: My salary is my personal property when it goes into my own card. Positive solution: Qualitatively, it depends on the acquisition time within marriage, regardless of the account registration and the account opening subject of the card. No matter whose card is paid after marriage, it is the common property.
Misunderstanding: The system of separate property is implemented when it is verbally said that each person is in charge of his own money. positive explanation: the agreement must be in written form and the scope should be clearly stated. if the oral agreement cannot be proved, it should still be treated as legal common property.
Misunderstanding: The year-end award is given to "me" by the company and belongs to me personally.Correct answer: The year-end bonus corresponds to the performance evaluation period; the portion attributable to the marriage period is treated as joint property, while any portion spanning multiple periods is prorated based on the proportion of months within the marriage.
Misunderstanding: Of course, the money earned from pre-marital savings is still mine. Positive explanation: the deposit interest belongs to the individual, but the financial management and stock income after marriage are generally recognized as common property.
Misunderstanding: I transfer my salary to my parents for safekeeping, not a transfer. Positive explanation: the transfer of large amount, no reasonable use and flowing to close relatives is easy to be identified as hiding and transferring common property, facing little or no division.
Misunderstanding: When the compensation for work-related injuries is paid, it should also be divided when divorcing. Positive solution: The compensation or compensation obtained due to personal injury is personal property, not common property, and does not need to be divided.

9. FAQ

Is Married Wage a Common Property?

in principle. Wages, bonuses, remuneration for services, etc. obtained during the marriage belong to the joint property of the husband and wife (article 1062 of the Civil Code).

The salary is paid to my own card, is it still common?

Count. Qualitative look at whether the acquisition time is in marriage, do not look at the account registered in whose name, after marriage wages into either party's account does not change the nature of common property.

How can we turn the post-marriage salary into personal property?

The husband and wife make a written agreement on separate property system, stating the scope of application and effective time, and it is better to handle notarization; only oral agreement can not resist the legal common property system.

How to divide the year-end bonus and provident fund when divorcing?

The year-end bonus is converted according to the proportion of the month of marriage in the assessment period; the housing accumulation fund and housing subsidy paid in marriage belong to common property according to Article 25 of the (I) of the explanation, and are divided according to the balance of the account in marriage.

After the divorce, if you find that the other party has transferred wages before, can you still chase them?

Sure. According to Article 1092 of the Civil Code, the lawsuit for re-division is filed. Note that the limitation of action shall be three years from the date of discovery (Article 84 of the (I) of Interpretation).

10. Practical Insights from a Lawyer

Whether wages are common property or not, the law has already given a clear answer, and the real gap is who can make the accounts clear. In handling cases, one party often said, "I am earning all the money and I am paying back the mortgage", but he could not come up with a complete flow of water. On the other hand, the other party only compiled the salary card, bonus payment record and provident fund payment details into a table, which made the claim appear powerful. Therefore, the first thing is to sort out the sources of income during the marriage-salary, performance, year-end bonus, provident fund and equity incentive.

Money that is credited to your account across different time periods is the easiest to miscalculate. Year-end bonus and equity incentive often correspond to a period of labor, and the judgment of attribution should return to "whether this period of labor occurs during marriage or before marriage", rather than when the money will arrive. Housing subsidies, provident funds, such as welfare funds, should also be carried out separately. As for the income of pre-marital deposits and pre-marital real estate after marriage, it cannot be generally considered that "as long as it is increased after marriage, it is common". It is necessary to distinguish whether it belongs to natural value-added or the value-added brought by putting into operation after marriage and jointly repaying the loan.

If you want your income after marriage to be your own, the only safe way is to write down the scope clearly with written agreement when the relationship is still good, sign by both parties, and notarize it if necessary, instead of making up a "post-event agreement" after falling out ". On the other hand, if it is found that the other party in the marriage large cash withdrawal, frequent transfer to relatives, surprise purchase of financial management or insurance, this is often not normal consumption but the signal of property outflow, should be fixed as soon as possible, preservation of clues, and in the negotiation or litigation to claim the corresponding consequences, rather than sitting and waiting for the other party to make the account even.

The post-marriage salary belongs to the joint property of husband and wife in principle, and the qualitative view is the acquisition in marriage rather than the account name; if you want to exclude the joint, you can only rely on the clear and provable written separate property system agreement. What really determines the amount of division is often how to convert inter-period income such as year-end bonus, equity incentive and provident fund, and how to distinguish the fruits, natural appreciation and operating income of premarital property-it is suggested to let the salary go to my account and keep the complete flow of water at ordinary times, arrange the assessment period, grant and exercise documents for inter-period income in advance, and keep separate accounts for pre-marital property and marital income. If it is found that the other party has transferred large amounts of wages, it is more useful to fix the bank flow and apply for an investigation order in the first place than to argue after the fact.