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How to divide the property of Ningbo cohabitation and breakup? 4 types of capital contribution determination

Ningbo Author：LuXu WANG

Without a license, they bought a house, set up a shop and gave birth to children together. How to calculate the money when they broke up is a kind of family consultation that has grown rapidly in Ningbo in recent years. Many people think that living together for many years is equivalent to a husband and wife, and they can ask for half a cent; others think that without a legal relationship, they can't get a penny. Neither understanding is accurate. Such disputes do not apply to the common property system of husband and wife, but return to the general rules of capital contribution, common and creditor's rights and debts.

The legal difference between 1. cohabitation and marriage

the registration of a marriage gives rise to the statutory co-ownership of property, mutual maintenance obligations and inheritance rights; cohabitation without registration of marriage does not have these status effects. This distinction is the starting point for dealing with all property disputes.

1. The system of joint property of husband and wife does not apply.

The wages, bonuses and operating income obtained during the period of cohabitation shall, in principle, be owned by each other and shall not be automatically converted into common property as a result of living together. A party claiming that a property is jointly owned has the burden of proof and needs to prove the existence of a joint contribution, joint operation or a clear joint agreement.

2. Dissolution of cohabitation without litigation

the cohabitation relationship itself can be terminated at any time and does not need to be dissolved by the court. If the parties sue, the court generally does not accept a request for the dissolution of the cohabitation relationship, but deals with the division of property and the maintenance of children. In the case of bigamy or cohabitation of a spouse with another person, the rules are different.

What rules are used to determine the acquisition of property during 2. cohabitation?

After stripping the identity attribute, all that remains is the common relationship and the debt relationship, and the path of judgment is clear.

1. Agreement takes precedence, no agreement presumption according to the share.

Article 108 of the the People's Republic of China Civil Code stipulates that if the co-owner does not agree on the common real or movable property as joint or joint, or if the agreement is not clear, it shall be regarded as joint, except that the co-owner has family relations. The cohabiting parties are usually not considered to have a legal family relationship, so in the absence of an agreement to the contrary, the share is determined in proportion to the contribution.

2. Treatment of income from joint operations

where the two parties jointly contribute capital or work together to operate a shop or other business, the proceeds may be treated as a common share, and the proportion of capital contribution and actual labor input shall be taken into account in the division. If a party only provides services without contributing capital, it may claim the corresponding remuneration for the services or an appropriate share of the proceeds, but it is generally difficult to claim it in half.

How to determine the share of 3. co-financed purchase.

The house is the largest and most controversial part of the cohabitation analysis, and there is a fundamental difference between the idea and the divorce of the husband and wife.

1. Registration name does not equal final vesting

if the house is registered in the name of one party, but the other party can prove that it participated in the down payment or jointly repay the loan, it may claim the corresponding share according to the actual capital contribution or request the return of the capital contribution and share the corresponding value-added. The evidentiary materials include transfer vouchers, loan repayment bank running water, chat records at the time of purchase and co-signed internal agreements.

2. The different legal effects of the four types of contributions.

The first category is the direct capital contribution clearly used for the purchase of a house, which can be claimed to be shared by share. The second category is joint repayment of loans, which can claim the return of the principal share and the corresponding appreciation. The third category is the investment in decoration and furniture and household appliances, which is generally treated as an addition or unjust enrichment, and advocates discount compensation. The fourth category is daily common life consumption expenses, which are usually not returned.

Is the transfer of money during 4. love a gift or a loan?

After the break-up, the number of cases requiring the return of large transfers has increased year by year, and the core of the determination is the true meaning of the payment.

1. Four common considerations

judicial practice is usually combined with folk customs, common living time, the use of funds and the size of the amount of comprehensive judgment. Small transfers with special meanings are mostly recognized as gifts to enhance feelings; those with large amounts and used for major matters such as house purchase, car purchase, debt repayment, etc., are more likely to be recognized as conditional gifts or loans.

2. Payment for the purpose of marriage

for the payment of a bride price for the conclusion of a marriage relationship, the payer may request a refund if the parties ultimately fail to register the marriage, and the proportion of the refund shall be determined by taking into account such factors as the time of common life, the actual use of the money and whether or not to give birth. If there is a debit clause or a clear repayment agreement, it shall be handled according to the private lending relationship. According to the "Answers to Several Questions Concerning the Trial of Marriage and Family Cases" issued by the First People's Court of Zhejiang High Court, for those who have not registered for marriage but have lived together, the return of bride price shall be determined as appropriate by combining the time of living together, childbirth, reasons for non-registration, use of bride price, etc. According to the Supreme Law's regulations on bride price disputes (implemented in February 2024), small gifts for birthdays and daily consumption do not belong to bride price, registered marriage and living together do not support return in principle.

5. arrangements for the upbringing of children born during cohabitation

children born out of wedlock have the same rights as children born in wedlock, without any derogation from the fact that the parents have not registered their marriage.

1. Criteria for determining dependency

those who are under the age of two shall be directly raised by the mother as the principle; if they have reached the age of two and fail to reach an agreement, they shall be judged in accordance with the principle that is most beneficial to the minor children; those who have reached the age of eight shall respect their true wishes. Judgment factors include the stability of the living environment, the actual undertaker of daily care and the ability of both sides to raise.

2. Maintenance and parent-child relationship confirmation

the party who does not directly support the child shall bear the maintenance fee, and the calculation shall be the same as that of the child born in wedlock. If there is any objection to the paternity relationship, it may apply for paternity test in the lawsuit; if one party refuses to cooperate and the other party has provided necessary evidence, the court may presume that the claim is established.

The choice of 6. prosecution and the list of evidence.

The wrong choice of case will directly affect the scope of the trial and the direction of proof, and the legal relationship should be clarified before filing a case.

1. Three types of common causes

involving the division of common property, usually by cohabitation relationship analysis of property disputes filed. The three types of requests may be made separately or in combination, as appropriate.

2. Six directions of evidence preparation

first, proof of common life, such as rental contract, photos of common residence and witness testimony; Second, the capital contribution certificate and bank flow; Third, the purchase contract and real estate registration information; Fourth, the accounts of joint operation and industrial and commercial registration materials; Fifth, the statement of property ownership in the chat record; Sixth, the birth medical certificate and household registration materials of children.

7. case proof

in practice, the two parties have not registered for marriage and lived together for many years, during which they purchased a house and registered it in the name of one party, and the other party claimed that they participated in the down payment and jointly repaid the loan, and sued for division. The court held that the cohabitation relationship did not apply to the common property system of husband and wife, and that the house should be handled in accordance with the common rules, and after verifying the actual proportion of capital contribution and the amount of loan repayment between the two parties, it was determined that it constituted a common share, determined the share according to the proportion of capital contribution and ordered the registrant to pay the corresponding discount compensation. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

In practice, one party transfers money to the other party one after another during the period of love and cohabitation, and sues for full refund after breaking up. The court distinguishes the nature of the money, and does not return the small transfer with special meaning as a gift to promote feelings. For the purchase of large assets, the amount obviously exceeds the level of daily consumption and the payment is for the purpose of entering into marriage, combined with the time of living together and the actual use of the money, it is decided to return the money according to a certain proportion. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

8. Risk Alert

  • co-funded purchase did not sign a written share agreement, only oral commitment as the basis, after the break-up of the evidence is extremely passive.
  • The capital contribution is delivered in cash and there is no receipt, the chain of funds is broken, it is difficult to prove the correspondence with the purchase behavior.
  • Mistake that cohabitation for many years can be divided according to the husband and wife standard half, the lawsuit request from the fact of capital contribution, easy to be greatly reduced.
  • After breaking up, the other party is allowed to dispose of the house registered in his name, and if he fails to apply for preservation in time, he may not be able to execute the judgment.
  • The inclusion of daily common living expenses in the return request is not only difficult to obtain support, but may also affect the court's judgment on the overall claim.

9. FAQ

after ten years of cohabitation, can the property be divided 50-50?

Can't of course half-and-half. The common property system of husband and wife does not apply to cohabitation, and the income obtained by each of them shall, in principle, be owned by each of them. The party claiming common ownership is required to prove the existence of a joint contribution, joint operation or joint agreement, and if there is no agreement to the contrary, the share is usually determined according to the proportion of capital contribution.

The house is written with the name of the other party. Can I come back with a down payment?

can claim. The key is to prove the correspondence between capital contribution and purchase behavior, and to submit materials such as transfer vouchers, loan repayment flow, chat records at the time of purchase, etc. If the evidence is established, it may claim a common share according to the proportion of the capital contribution, or request the return of the capital contribution and share the corresponding value-added.

Can the money transferred during love be returned after parting?

It depends on the nature of the payment. Small transfers with special meanings are usually recognized as gifts and will not be returned. If the amount is large and is used for major matters such as house purchase and car purchase, or if the payment is made for the purpose of concluding a marriage, the return may be claimed, and the proportion of return shall be determined in combination with the time of common life, the purpose of the payment and other factors.

Is the standard of alimony the same for children born without a license?

The same. Children born out of wedlock have the same rights as children born in wedlock, and the party who does not directly raise them shall bear the maintenance fee, and the calculation caliber is completely consistent with that of children born in wedlock. The ownership of support shall be determined in accordance with the principle of direct support by the mother under the age of two and the true will of the child at the age of eight.

Practical Experience of 10. Lawyers

cohabitation does not give rise to a system of joint property between husband and wife, which must first be accepted: the money earned and income earned by each other are, in principle, separate and will not automatically become common because they have lived together for many years. If you want to say that a property is common, you have to prove that you have contributed money, have been jointly operated by both parties, or have had a clear common agreement. Therefore, if you break up and divide the property, don't rush to talk about how to divide it. Instead, you should clarify the source of each property: who gave the money, when it was given, whose name it was registered in, and where the money went.

The most easily confused is the transfer during love. Whether the transferred money is a gift or a loan, the court will not only look at whether there is a transfer record, but will judge it in combination with the size of the amount, whether there is any remark, the context of the transfer, and the statements of both parties at that time: red envelopes for holidays and small expenses for daily meals and shopping are mostly treated as gifts; Only those with a large amount of money and a clear purpose or repayment intention can be deemed as loans. Therefore, it is much more important to keep the chat content at that time than to keep only the transfer screenshots. If I use the money first and return it to you later, it often determines the fate of the money.

If you really want to sue, you have to choose the right request and cause of action. Simply request the dissolution of cohabitation, the court generally does not accept, can deal with the division of common property and child support, so in the complaint should be around the contribution, common, creditor's rights and debts to make a request. If you are worried about the transfer of property or the sale of a shared house, you should apply for preservation as soon as possible. The child's problem is considered separately for custody and maintenance, and don't get entangled with property. Remember one thing: cohabitation is about evidence and figures. It is more useful to calculate the capital contribution and prepare enough evidence than to talk about many feelings.