What about the property and children after the Ningbo marriage is found to be invalid or revoked.
In Xincai, Henan Province, a couple registered their marriage in 2003 and had a son, living together for more than a decade. The husband later underwent a paternity test and discovered that the child was not biologically his. He then filed for divorce, sought reimbursement for the child support he had paid over the years, and also demanded compensation for emotional distress. Upon investigation, the court uncovered a more fundamental issue: the two individuals’ mothers are sisters, making them collateral relatives within three generations—meaning that, from the date of registration, their marriage has been invalid. The court did not grant a divorce but declared the marriage invalid, changing the cause of action from a divorce dispute to a dispute over the invalidity of the marriage. Ultimately, the child was placed in the mother’s custody; the mother was ordered to refund 30,000 yuan in child-rearing expenses and pay 40,000 yuan in compensation for emotional distress, while the husband’s request for property division as if the marriage had been dissolved by divorce was rejected. (Source: Civil Judgment No. 〔2022〕Yu 1729 Minchu 2567 of the People’s Court of Xincai County, Henan Province; the parties’ names have been anonymized.)
This case has pierced two misunderstandings: one is to regard "invalid marriage" as a special divorce; the other is to think that if the marriage is invalid, the children and property will be written off. In Ningbo, whether a party discovers after marriage that their spouse is already married to another person, or that the marriage was registered between close relatives, or whether a serious illness was concealed prior to marriage and an annulment is sought, the same set of rules applies in all cases.First, an invalid or revoked marriage is not legally binding from the beginning, and the two parties do not have the rights and obligations of the husband and wife. The property acquired during cohabitation shall first be agreed by the two parties, and if the agreement fails, the people's court shall decide according to the principle of taking care of the non-fault party (Article 1054 of the Civil Code); third, children born to both parties are subject to the general provisions of parents and children, and maintenance, maintenance and inheritance rights are not affected.The following combined with the real judgment, from six aspects.
1. which marriages will be annulled and which can be annulled
There are two types of defects in the validity of marriage: "invalid" is directly denied by law; "revocable" gives the right of choice to the injured party, and the right is eliminated after the time limit.
1. In three cases, the marriage is absolutely invalid.
Article 1051 of the Civil Code stipulates that a marriage shall be invalid under any of the following circumstances: (1) bigamy; (II) there is a kinship that prohibits marriage; (III) has not reached the legal age of marriage.
- Bigamy. Where a person who is already married registers another marriage with another person, the prior marriage remains valid until the subsequent marriage is declared invalid; the subsequent registration is void ab initio.
- There are kinship relationships that prohibit marriage. Article 1,048 of the Civil Code stipulates that marriage is prohibited between direct relatives or collateral relatives within three degrees of kinship. In the aforementioned Xincai case, both mothers are sisters, commonly referred to as "cousins through the maternal line," which falls under this circumstance. The court declared the marriage invalid pursuant to Article 1051, paragraph (II).
- Not to the legal age of marriage. Article 1,047 of the Civil Code stipulates that men may not marry before the age of twenty-two, and women may not marry before the age of twenty; any marriage registration conducted before reaching the prescribed age is invalid.
The invalid situation is legal and closed. If the marriage is confirmed to be invalid for reasons other than these three, the court will reject it. "Disagreement" and "no feelings" can only be divorced.
2. In two cases, the marriage can be revoked.
Articles 1052 and 1053 of the Civil Code provide for two types of revocable marriages. First, in cases of coerced marriage: the party subjected to coercion may request the annulment of the marriage, and such a request must be made within one year from the date the coercive act ceases; if the party was unlawfully deprived of personal liberty, the request must be made within one year from the date personal liberty is restored. Second, concealment of a serious illness: If one party suffers from a serious illness, they shall truthfully disclose this fact to the other party prior to marriage registration; failure to do so entitles the other party to request annulment of the marriage, which must be filed within one year from the date on which they knew or ought to have known of the grounds for annulment. This year constitutes the period of limitation for exercising the right of rescission; it is neither suspended nor interrupted, and if the right is not exercised within this period, it shall be extinguished.
3. Who will apply and how will the procedure go?
Article 9 of the (I) of Interpretation stipulates that the subjects who have the right to request confirmation of the invalidity of the marriage include the parties to the marriage and interested parties. The interested parties are the close relatives of the parties on the grounds of bigamy, under the legal age of marriage, and relatives that prohibit marriage. (Bigamy also includes grassroots organizations). There are three procedural points to note: In cases seeking a declaration of invalidity, the plaintiff’s withdrawal of the suit shall not be permitted, and mediation is not applicable to issues concerning the validity of marriage (Article 11); after a court accepts a divorce case and, upon examination, determines that the marriage is indeed invalid, it shall inform the parties and render a judgment declaring the marriage invalid in accordance with the law (Article 12)—this is precisely the basis for the Xincai case being reclassified from “divorce” to “declaration of invalidity”; if the same marital relationship is separately brought before the courts as both a divorce action and an action for a declaration of invalidity, the divorce case shall be stayed pending the judgment in the declaration-of-invalidity case (Article 13).
What does 2. mean by "invalid from the beginning": it is not a divorce, nor does it mean a white life
The marriage is invalid as a special kind of divorce, will be in the identity and property on the double step pit.
1. Since the beginning is not legally binding, the parties are not "ex-husband and ex-wife"
Divorce is the dissolution of a once valid marriage, and the two parties are "former spouses" after the divorce. However, an invalid or revoked marriage has no legal binding force from the beginning, and the parties do not have the rights and obligations of husband and wife-the two have never become husband and wife, but only a cohabitation relationship. Naturally, there is no such thing as "divorce. In the Xincai case, the plaintiff’s first claim was “requesting divorce from the defendant.” After ascertaining the existence of grounds for invalidity, the court duly informed the parties and proceeded to adjudicate the marriage as void.
2. The matrimonial property system does not apply, and there is no "one-half"
In principle, the income from legal marriage belongs to the common property of husband and wife, and is generally divided equally in divorce. There is no such presumption in invalid marriage. During the period of cohabitation, the wages, bonuses, remuneration for labor services, investment income and the property inherited or donated by each party belong to each party in principle. Only the indistinguishable property such as the property purchased by joint investment and the income from joint production and operation can be divided. The principle of “one half for each party” does not apply in an invalid marriage.
3. A table to see the difference
| Contrast Item | Marriage Invalidation/Revocation | Divorce | |-|-|-|-| | Legal Characterization | No legally binding force from the beginning, never becoming a husband and wife | Dissolution of a once valid marriage | | Property Rules | Not applicable to the joint property system of husband and wife. Agreement first, not judgment according to the principle of taking care of the no-fault party | Equal division of joint property after marriage in principle, can be less divided due to fault | | status relationship | no rights and obligations of husband and wife, no inheritance rights of spouse | former spouse to each other, financial compensation and financial assistance under certain conditions | | relief | no fault party requests damages (article 1054) | divorce damages, housework compensation and financial assistance | | children | apply to the general provisions of parents and children, and rights are not affected | apply to the general provisions of parents and children |
Special reminder: The other party to an invalid marriage does not have the right to inherit the spouse, because he (she) has never been a spouse; but the children born to both parties are still their first-order heirs.
How to deal with property during 3. cohabitation.
Marriage is denied, but the belongings that two people live together and buy are real. Article 1054 of the Civil Code gives a clear order of treatment.
1. If there is an agreement, follow the agreement first.
Article 1,054 provides that property acquired during cohabitation shall be disposed of by agreement between the parties. If both parties can clearly specify the ownership and valuation of real estate, bank deposits, vehicles, and equity interests, the law respects their autonomy of will, and the associated costs are minimized.
2. The agreement is not: according to the proportion of capital contribution, and take care of the no-fault party.
If the agreement fails, the people's court shall make a judgment in accordance with the principle of taking care of the no-fault party. Specific rules can be found in Article 4 of Interpretation (II): property acquired individually, inherited individually, or received as a gift shall belong to the respective individual; property purchased with joint contributions, income from joint production and business operations, and other property that cannot be clearly distinguished shall be divided based on each party’s contribution ratio, with due consideration given to factors such as the duration of cohabitation, the presence of common children, and the extent of each party’s contribution to the property. Where the contributions cannot be determined, the provisions of Articles 308 and 309 of the Civil Code shall apply by analogy, with each party’s share calculated on an equal basis; additionally, in light of the principle of “giving due consideration to the non‑faulty party,” the faulty party may receive a smaller share. Therefore, cases of this typeThe weight of the evidence is "contribution": Purchase money, mortgage repayment flow and transfer records, are the key to claiming share.
3. The revelation of this case: why the "divorce division of property" will be rejected.
Returning to the Xincai case, the plaintiff sued for "divorce", which in essence demanded that the property be disposed of in the form of divorce. However, since the marriage is void ab initio, the premise of “marital property” does not exist. Consequently, the court ultimately addressed only issues concerning child custody, the return of child support payments, and compensation for emotional distress, while dismissing all other claims brought by the plaintiff. When seeking to divide jointly owned property acquired during cohabitation, the focus should be on proving your financial contribution to that property, rather than making a vague claim of “one-half for each party.”
4. Bigamy: shall not infringe upon the property rights and interests of the lawful spouse
Article 1054 specifically stipulates that in the case of an invalid marriage caused by bigamy, the disposal of property shall not infringe upon the property rights and interests of the parties to the lawful marriage. If a person who is already married acquires property with their subsequent "spouse" using the joint property from their legal marriage, the legal spouse may still assert their rights; moreover, Article 16 of Interpretation (I) stipulates that when a court hears cases involving void marriages caused by bigamy and such cases involve property disposition, the legal spouse shall be allowed to participate in the litigation as a third party with an independent claim.
4. Damages from the No-fault Party: Starting from the "40000 Yuan for Mental Damage" in this case
1. Legal basis: Article 1054, paragraph 2
The second paragraph of Article 1054 of the Civil Code stipulates that if the marriage is invalid or revoked, the no-fault party has the right to claim damages, which includes both material and moral damage. “The non-fault party” refers to the party who bears no fault for the grounds that render a marriage invalid or subject to annulment, such as, for example, a spouse who was concealed from regarding a serious illness, or a party who was subjected to coercion.
2. Why was 40000 yuan sentenced in the Xincai case
In the Xincai case, the defendant gave birth to Zhang 3 with others, and the child was raised and looked after by the plaintiff and his parents after it was born. The court held that this act objectively caused mental damage to the plaintiff and also caused property losses due to the expenses of raising Zhang, so it was supported within a reasonable range: combining the fault liability of both parties and the actual fact of raising,The child support fee is set at 30000 yuan and the mental damage compensation is set at 40000 yuan.. It can be seen that the amount claimed (in this case, 216000 yuan for alimony and 50000 yuan for mental loss) is not equal to the amount of compensation awarded, and the court will decide according to the degree of fault, duration, local living standard, etc.
3. Key points of proof and point of presentation
To assert this right, three points should be grasped: first, the fault lies with the other party. If both parties know the cause of invalidity (e. g. knowing that close relatives still insist on registering marriage), the court may determine that neither party is a "no-fault party" and the claim for compensation cannot be supported; Second, the evidence should fall on the other party's "concealment, deception or coercion", such as chat records, disease diagnosis and medical records, alarm records or witness records; third, it may be filed together in the same action for confirmation of invalidity (or revocation), or it may be filed separately after the effective judgment has entered into force, but it should not be delayed for a long time.
What to do with 5. children: paternity testing, maintenance and maintenance return
The marriage is invalid, and the children are the most affected. The law is clear: while a parent’s marriage may be declared invalid, the rights and obligations between parents and their children remain unaffected.
1. The relationship between parents and children is not changed by the annulment of marriage.
The third paragraph of Article 1054 of the Civil Code stipulates that the provisions of this Law on parents and children shall apply to the children born to the parties to an invalid or annulled marriage. Who will directly raise the children shall be determined according to the principle of Article 1084 in the best interest of minor children: in principle, the mother will directly raise the children under the age of two, and if the agreement fails to reach the age of two, the court shall decide according to the specific circumstances of both parties; The party who does not directly raise the child shall bear the maintenance fee. Article 1,071 also explicitly stipulates that non-marital children shall enjoy the same rights as marital children. In the Xincai case, Zhang Mou3 was determined by forensic examination to have no blood relationship with the plaintiff; the court ordered that he be raised by his biological mother, Gan Mou, who shall bear all costs of his upbringing.
2. Paternity testing and alimony return: what to do if you are "cheated and raised"
Another main line of the Xincai case is paternity testing: the plaintiff commissioned the identification on his own in February 2016, and the identification opinion of the Institute of Medical Genetics of Henan Provincial People's Hospital was "does not support the existence of biological parent-child relationship between samples". The maintenance of a child who has no legal obligation to raise a child is a "fraudulent upbringing" that has been deceived, and one party has the right to demand the return of the maintenance paid and to claim compensation for moral damage. There are three key points: First, prioritize evidence—parentage test results constitute crucial evidence; self‑sponsored tests may be challenged by the opposing party, so, if necessary, you may request the court to appoint a re‑evaluation. Second, clearly define the scope of reimbursement: typically, only actual expenses for child support, education, and medical care are recoverable, supported by bank transfer records and receipts; the court will determine the amount based on the duration of child‑rearing and the degree of fault attributable to each party. Third, prioritize the child’s best interests: the recovery of child‑support payments is distinct from the issue of child custody, and the child will continue to be raised by the biological mother.
3. Inheritance rights are not affected
Article 1,127 of the Civil Code stipulates that children (including children born in wedlock, children born out of wedlock, adopted children and stepchildren with dependent relationships) shall be the first-order legal heirs. The validity of the parents’ marriage does not affect the children’s right to inherit their parents’ estate. It is important to distinguish: the other party in an invalid marriage does not have spousal inheritance rights, as they were never a spouse; however, the inheritance relationship between children and their parents remains unchanged.
Can 6. who have registered their marriage still be remedied: the treatment of the disappearance of invalid situations
Article 10 of the interpretation (I) stipulates that if the parties request to confirm the invalidity of the marriage in accordance with Article 1051 of the Civil Code, and the statutory invalidity has disappeared when the lawsuit is filed, the people's court will not support it. In other words, whether a marriage is void is determined by the status at the time the lawsuit is filed.
The "disappearance" of the three situations is different: before the legal age of marriage -- if both parties have reached the legal age of marriage at the time of prosecution, the invalid situation will disappear, the court will no longer declare it invalid, and the marriage will be treated as effective, which is the most feasible remedy; bigamy -- absolutely invalid, and will not be cured by the passage of time. The first article of the (II) also stipulates that even if the legal marriage party has divorced or the spouse has died at the time of prosecution, the court also did not support the defendant's claim that the latter marriage would become valid. There is a kinship that prohibits marriage-blood relationship will not disappear over time and is absolutely invalid. In addition, Article 14 of the (I) of interpretation stipulates that after the death of one or both spouses, the court shall still accept the request of the surviving party or the interested party to confirm the invalidity of the marriage.
7. Frequently Asked Questions
After a marriage is declared invalid, are we considered “divorced”? Can we remarry?
It doesn’t count as a divorce. A null and void marriage is not legally binding from the outset and the parties have never acquired spouse status. After the judgment confirming the invalidity takes effect, the status of both parties shall be restored to unmarried and the marriage may be registered separately. The issue of property and children shall be dealt with in accordance with Article 1054 of the Civil Code. Note that, before a judgment takes legal effect, if one party registers another marriage with someone else, such conduct may still constitute bigamy.
is cheated to raise a non-biological child, can all the alimony be recovered?
It is usually difficult to obtain the "full amount." The court will take into account the length of maintenance, actual expenses, the fault of both parties, and the local standard of living. In the Xincai case, the plaintiff claimed to return 216000 yuan. The court decided to return 30000 yuan based on the fault liability and the actual upbringing facts, and at the same time supported 40000 yuan for mental damage. The more complete the evidence (bank transfers, receipts, expert opinions), the stronger the basis for the amount claimed.
If the other party has committed bigamy, can I simultaneously request a smaller share of the marital property and compensation for damages?
Yes, the two have different properties. In terms of property, the court shall, in accordance with Article 1054 of the Civil Code, deal with the principle of "taking care of the no-fault party". Bigamy is a major fault, and the fault party may have less points. As a no-fault party, you may also request damages separately. If property disposal is involved, an application may be made for the legally married spouse to participate in the proceedings as a third person with an independent claim (Interpretation of (I) 16).
8. Lawyer's Practical Insights
Many parties think that as long as the marriage is determined to be invalid or revoked, they can divide the family property in half and clear what they should have, just like normal divorce. This judgment needs to be corrected in time. The invalidity of marriage is not legally binding from the beginning, there is no rights and obligations between the husband and wife, and there is no default division of the common property of the husband and wife, and the property acquired by each during the period of cohabitation can only be dealt with according to the agreement, and if the agreement fails, the court will take care of the innocent party's judgment. Therefore, the first step is not to settle accounts in a hurry, but to judge which category you belong to first: only bigamy, relatives who prohibit marriage, and those who have not reached the legal age of marriage may be deemed invalid. Divorce or revocation of marriage is the reason for emotional discord and deception. Don't choose the wrong path.
If you really want to claim the nullity or annulment of the marriage, the request for prosecution should be designed in layers: first request to confirm the validity of the marriage, and then deal with the property, child support and damages of the no-fault party during the period of cohabitation. Many people only focus on the title of effectiveness, and as a result, the compensation and property arrangements that can be claimed are left out. The evidence should be fixed in advance the starting and ending time of living together, their respective contributions and income, who actually takes care of the children, and the specific materials of the other party's fault. The claim of confirmation itself does not take the initiative to deal with maintenance and compensation for you, it must be clearly stated in the complaint, and the court will not supplement the claim for you.
also pay attention to a time problem that is often ignored: if the invalid situation stipulated by law has disappeared at the time of prosecution, for example, when the legal marriage age was not reached at the time of registration, and now both parties have reached the standard, the court will no longer support the request for confirmation of invalidity. This means that it is risky to regard the confirmation of invalidity as a zero-cost shortcut. Once rejected, the only way to end the relationship is to go back to the divorce process, which is time-consuming. The no-fault party's claim for damages should also be made as early as possible. It will not appear automatically. It needs to be proactively claimed and matched with evidence in the same procedure. If it is delayed, it will often miss the most favorable opportunity.
Summarize in one sentence: if the marriage is invalid or revoked, the legal effect is "no binding force from the beginning, not divorce"; The cohabitation property is agreed first, the party without fault is not taken care of and the judgment is combined with the capital contribution; The party without fault can claim damages, and those who have been cheated to raise non-biological children can also claim to return the maintenance fee; The child's upbringing, maintenance fee and inheritance right are not affected. For the parties concerned, the most important thing is three things: early claim-the right of revocation is only one year, and invalid cases such as bigamy and close relatives should be confirmed by the court as soon as possible; Fixed evidence-capital contribution, paternity test opinions, materials concealed or coerced by the other party, and property ownership certificates; Deal with it together-property, children and compensation should be put forward in one lawsuit as far as possible.