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Ningbo divorce, inheritance disputes, the application of the new law or the old law?

Ningbo Author：LuXu WANG

first make the conclusion clear: to judge whether to use the civil code or the marriage law or the inheritance law before the implementation of divorce and inheritance disputes, what we see is not "when to sue and when to file a case", but when the legal facts that cause the disputes occur.In principle, the Civil Code applies to legal facts that occur after its effective date of January 1, 2021; for legal facts that occurred before its effective date, the then‑applicable Marriage Law, Inheritance Law, and their judicial interpretations shall apply. If a legal fact commenced before the effective date and continues beyond it, the Civil Code shall apply. Only when the circumstances fall under statutory exceptions such as “favorable retroactivity” or “blanket retroactivity” may the Civil Code be applied to facts that occurred prior to its entry into force. Particular attention should be paid to divorce and inheritance cases: for the same marriage or the same will, if it spans January 1, 2021, the applicable rules and the outcomes you can obtain may differ.

1. Why does the question of "using the new method or the old method" arise?

On May 28, 2020, the Third Session of the 13th National People's Congress adopted the Civil Code of the People's Republic of China, which came into effect on January 1, 2021. Following the implementation of the Civil Code, the previously fundamental laws governing marriage and family, inheritance, and adoption—the Marriage Law, the Inheritance Law, and the Adoption Law—as well as the General Principles of Civil Law and the General Provisions of Civil Law, were all repealed. Their relevant provisions have been incorporated and consolidated into the sections on marriage and family and on inheritance within the Civil Code.

The problem follows: A couple who registered for marriage in 1998 did not divorce by agreement in 2019 and filed a lawsuit in 2022. Which law should the court decide? An old man printed a will with a computer in 2018 and died in 2022. This printed will was not specifically stipulated in the inheritance law at that time. How should the court determine it? The continuity of life and the time boundary of law are misplaced-this is the origin of the question of "new law or old law.

It should be noted that the Civil Code does not simply and uniformly repeal all prior laws. It includes reservations, modifications, and new provisions regarding the rules governing marriage and family law as well as inheritance. For example, with respect to the determination of marital joint debts, Article 1064 of the Civil Code establishes the “joint debt, joint signature” rule. In the area of inheritance, new forms of wills—namely, printed wills and video-recorded wills—have been introduced; the scope of derivative succession has been expanded; and a system for estate administrators has been established.

2. Basic principle: Laws shall not have retroactive effect.

The basis for handling such issues is the "Several Provisions of the Supreme People's Court on the Temporal Effect of Applying the Civil Code of the People's Republic of China" (Interpretation [2020] No. 15). This provision was adopted at the 1821 st meeting of the Judicial Committee of the Supreme People's Court on December 14, 2020, with a total of 28 articles, and will come into force on January 1, 2021 in synchronization with the Civil Code, and its effect covers cases of first and second instance that have not yet been concluded by the People's Court after the implementation.

Its first cornerstone is the principle of “laws do not have retroactive effect”—in simpler terms, “new laws apply to new matters, and old laws apply to old matters.” A law only has binding force over events that occur in the future. Article 1 of the Interpretation by the Supreme People’s Court [2020] No. 15 breaks down this principle into three layers of meaning:

  • For civil disputes arising from legal facts that occur after the Civil Code comes into effect, the Civil Code shall apply;
  • For civil disputes arising from legal facts that occurred prior to the effective date of the Civil Code, the laws and judicial interpretations in force at that time shall apply, unless otherwise provided by law or judicial interpretation;
  • Where a legal fact that existed prior to the effective date of the Civil Code continues after such date, civil disputes arising from that legal fact shall be governed by the Civil Code.

The key lies in the four characters "legal fact." A legal fact refers to an objective circumstance that can give rise to, modify, or terminate a legal relationship. It includes legal acts (such as registering a marriage, entering into a contract, or making a will) and legal events (such as the death of a person). To determine which law—new or old—applies, the first step is always to identify the relevant legal facts and then ascertain on which side of the effective date they occurred.

The third meaning pertains to “continuous legal facts.” Some legal facts do not come to an end on a particular day upon their occurrence; rather, they persist beyond the effective date. For example, a marital relationship continues from the date of registration, and a contract remains in effect from the date of its execution until after 2021. In this regard, if the “focus” of the legal facts lies in events occurring after the effective date, the Civil Code shall apply; if the dispute concerns an act that was already completed before the effective date—such as a payment made in 2020—then the law in force at the time of that act shall continue to apply.

It should also be noted that, pursuant to Article 5, the Civil Code shall not apply to cases that were finally adjudicated before the Civil Code came into effect, whether the parties apply for a retrial or the case is reviewed under the trial supervision procedure. In other words, the temporal effect of the law follows the case—old cases that have already been conclusively resolved will not be reopened or overturned simply because a new law has come into force.

3. Two important exceptions

“Non-retroactivity” is a principle, but it is not a rigid, inflexible rule. Interpretation No. 15 of 2020 opens two exceptions to the general principle: one is “retroactivity in favor of the party,” and the other is “retroactivity for matters left unregulated.”

(I) Favorable retroactivity: when applying the new law is more just.

Article 2 of this provision stipulates: for civil disputes caused by legal facts before the implementation of the Civil Code, if there are provisions in the laws and judicial interpretations at that time, the provisions at that time shall apply in principle, except for those that are more conducive to protecting the legitimate rights and interests of civil subjects, maintaining social and economic order, and promoting socialist core values. This is “retroactive application in favor of the party,” which allows courts to apply the Civil Code when the aforementioned “three more favorable” criteria are met.

(II) Retroactive application of the new law: when the old law has no provisions but the new law does. Article 3 of

stipulates that the civil disputes caused by legal facts before the implementation of the Civil Code can be applied to the provisions of the Civil Code if there are no provisions in the laws and judicial interpretations at that time, except for the obvious derogation of the legitimate rights and interests of the parties, the increase of the legal obligations of the parties or the deviation from the reasonable expectations of the parties. This is "blank-slate retroactivity." For example, Article 1053 of the Civil Code, which provides that if one party conceals a serious illness prior to marriage registration, the other party may request annulment of the marriage, is a newly added provision not found in the former Marriage Law; accordingly, if one spouse brings an action for annulment on this ground, the court may invoke this new article.

It should be noted that the applicable prerequisites for retroactive application in favor of the individual and for filling statutory gaps are not the same and must not be used interchangeably: when making a determination, one should first ascertain whether the old law contains any relevant provisions, and then decide which framework to apply. Furthermore, Article 4 provides that where the old law contains only general principles while the Civil Code sets forth specific provisions, the old law shall apply; however, the specific provisions of the Civil Code may be invoked in the reasoning of the judgment—this constitutes a compromise whereby “reasoning may draw upon the new law, but the judgment still relies on the old law.”

4. Common intersections in the field of marriage and family

When applying these principles to marriage and family cases, there are several keySeamless connectionrules that need to be kept in mind.

Marriage and the validity of marriage. In cases of marriage entered into under duress, Article 1052 of the Civil Code grants the party subjected to duress the right to seek annulment of the marriage; however, such a request must be made within one year from the date on which the coercive act ceases. Article 26 of the provision makes it clear that if a party requests annulment of a marriage on the grounds that he was coerced into marriage before the implementation of the Civil Code, the time limit for the exercise of the right of annulment shall apply to the second paragraph of Article 1052 of the Civil Code, that is, the time limit of "one year" shall be calculated according to the new law. As for the annulment of marriage, Article 1051 of the Civil Code continues to limit such cases to three scenarios—bigamy, a prohibited familial relationship, and failure to reach theLegal marriage age—thus maintaining continuity with the previous Marriage Law.

Divorce. Article 1079, paragraph 5, of the Civil Code has added a provision stating: “If, after a people’s court has ruled against granting a divorce, the parties continue to live separately for one full year, and one party subsequently files another divorce lawsuit, the divorce shall be granted.” Article 22 of the regulation explicitly states: For cases arising before the Civil Code came into effect, where a court has previously ruled against granting a divorce and the parties have since lived separately for one full year, if one party files for divorce again, Article 1079, paragraph 5, of the Civil Code shall apply. A typical feature of such cases is that the fact of “separation for one year” spans the effective date, representing a continuity in the factual circumstances.

Marital property and joint debts. This is the most sensitive area in terms of the differences between the old and new laws in the field of marriage and family. Article 1064 of the Civil Code establishes the rule of "joint debt and co-signing": debts incurred by the husband and wife who sign jointly or by one party after the fact, as well as debts incurred by one party in his or her own name during the marriage for the daily needs of the family, are joint debts of husband and wife; those that exceed the daily needs of the family are not considered joint debts in principle, unless the creditor can prove that the debt is used for the husband and wife to live together, to produce and operate together, or on the basis of the common will of both parties.

The key lies in how the temporal effect is determined. Before February 2017, judicial practice was once based on Article 24 of the (II) on Judicial Interpretation of Marriage Law. Spouses who did not borrow money were often "jointly and severally" liable. In 2017 and 2018, the Supreme People's Court issued notices successively requesting to review the authenticity of debts and protect the litigation rights of non-borrowers. After the implementation of the Civil Code in 2021, Article 1064 raised "co-signing of debts" as a legal rule. Therefore, when determining whether a debt is a joint debt, one should not rely solely on “when the lawsuit was filed,” but rather consider the time at which the debt arose and the applicable criteria for its determination: debts incurred and disputed before the Civil Code came into effect shall, in principle, be governed by the legal standards in force at that time; if the relevant legal facts continued after the Civil Code took effect, or if the conditions for favorable retroactive application or gap-filling retroactive application are met, Article 10

64of the Civil Code may be applied.

5. Common Cohesion in the Field of Inheritance

The field of inheritance is the area in which Judicial Interpretation No. 15 of 2020 contains the most specific provisions, and the reason is straightforward: the Inheritance Chapter of the Civil Code has introduced and amended numerous systems, while the legal facts underlying inheritance cases often “span” the date of its entry into force.

Form and validity of a will. The former Inheritance Law provided for only five forms of wills: notarized, handwritten, prepared by a scrivener, recorded, and oral. The Civil Code has added provisions for printed wills and video-recorded wills (Articles 1136 and 1137) and has abolished the rule that “a notarized will takes precedence.” Article 15 of the provision makes it clear that if a will is made by a testator in a printed form before the implementation of the Civil Code and the parties dispute the validity of the will, Article 1136 of the Civil Code shall apply, except where the estate has been processed before the implementation of the Civil Code. This means that a will printed in 2018 and controversial in 2022 can be examined by the court according to the civil code for the formal requirements of the printed will (more than two witnesses are present, the testator and the witness sign page by page and indicate the date of the month and year)-even if the word "printed will" has not been written into the law when making the will.

In response to this, Article 23 stipulates that: if the decedent has made a notarized will before the implementation of the Civil Code, and has made a new will after the implementation, if there is a dispute over the contents of several wills after his death, the third paragraph of Article 1142 of the Civil Code shall apply, that is, "if there are several wills and the contents conflict, the last will shall prevail". Under the old law, the rule of “notarized wills take precedence” has thus been superseded.

Succession by representation and succession by the children of siblings. Article 1128 of the Civil Code expands the scope of derivative succession from “the lineal descendants of one’s children” to “the children of one’s siblings.” Under the former inheritance law, if a sibling predeceased the decedent, their children (i.e., nephews and nieces) were not entitled to inherit by way of substitution; however, the Civil Code now grants them such right of substitution. Article 14 of the provision makes it clear that if the decedent dies before the implementation of the Civil Code, the estate is neither inherited nor bequeathed, and the children of his brothers and sisters request subrogation, paragraphs 2 and 3 of Article 1128 of the Civil Code shall apply, except where the estate has been processed before the implementation. This rule has, for the first time, given nieces and nephews of individuals who had already passed away before its implementation the possibility of inheriting.

Loss of inheritance rights and the estate administrator. Article 13 of this provision makes it clear that Article 1125 of the Civil Code shall apply to the dispute over whether the ex-successor has lost the right of inheritance in items 4 and 5 of Article 1125, paragraph 1, of the Civil Code (such as concealment, embezzlement, fraud, coercion of the decedent to set up a change of will, etc.). The estate administrator system is a newly established institution under the Civil Code (Articles 1145 to 1148). Upon the commencement of succession, the role may be assumed by the executor named in the will, an elected heir, all the heirs collectively, or, failing such appointments, by the civil affairs department or the village committee of the deceased’s last domicile. For inheritance disputes that arose prior to the implementation of the Civil Code and have not yet been fully resolved, courts shall also apply the relevant provisions of the Civil Code when appointing and supervising estate administrators.

6. How to determine the specific circumstances?

You can demonstrate path determination using several typical scenarios.

Scene 1: Married in 1998, divorced in 2019.Both the legal facts of registering a marriage and dissolving a marriage occurred prior to the effective date of the Civil Code; therefore, the then‑applicable Marriage Law shall apply in principle. Unless the case involves newly added provisions of the Civil Code, gaps in the previous law, or meets the conditions for favorable retroactive application, the court will resolve issues of property division and child custody in accordance with the Marriage Law and its judicial interpretations.

Scenario 2: Made a will in 2018 and passed away in 2022. Before the execution of the will, the fact that the decedent's death begins the succession occurs after the execution. Inheritance begins at the time of the decedent's death, so this inheritance dispute applies in principle to the Civil Code. If the will is a printed will, the validity shall be reviewed according to Article 1136 of the Civil Code applicable to Article 15. If the children involving brothers and sisters request subrogation inheritance, it shall be handled according to Article 14 (provided that the estate has not been processed).

Scene Three: A Persistent Fact Spanning the Effective Date.With respect to marital relationships, child-rearing obligations, and the performance of joint debts that continue from before the effective date into after, disputes arising therefrom shall, in principle, be governed by the Civil Code. However, it is important to distinguish: if the dispute concerns a specific act that was already completed and concluded before the new rules took effect—such as whether a particular payment in 2019 constitutes marital debt—it may still be evaluated according to the legal standards applicable at that time.

The basic order of judgment can be summarized as: firstly lock the legal fact and its occurrence time;If there are no special convergence and retroactive clauses in [2020] No. 15, if there are no special clauses, return to the "three sentences" in the first article, and finally see if there are exceptions that are favorable to retroactive and blank retroactive.

7. why this judgment is important

Because the new law or the old law is applied, the results are often very different.

Take the example of a will. Under the old inheritance law, "notarized will priority", a 2019 notarized will, even if it is overturned by the 2020 self-written will, is still subject to notarized will. The same 2019 notarized will, if the case is at the point of convergence, which law applies, the ownership of the estate may be completely reversed.

Take marital debt as an example. A debt borrowed in 2016 in the name of the husband and beyond the needs of the family's daily life may be recognized as a joint debt of the husband and wife under the old standard, and the wife shall bear joint and several liabilities. Under the civil code's "co-signing of debts" standard, creditors may not constitute joint debts if they cannot prove that the debt is used for husband and wife's common life, joint production and operation or based on common intention. For spouses who are not in debt, this is the difference between "whether or not to repay hundreds of thousands for the other party.

Take derivative succession as an example. The brother and sister of an old man died in 2020. The old man died in 2022 and there was no first-order heir. The estate may belong to the state or the collective according to the old law. According to Article 1128 of the Civil Code and in combination with Article 14 of the Regulation, his nephew has the opportunity to inherit in subrogation.

8. practical advice

First, draw the timeline clearly when filing a case and presenting evidence. Mark the key nodes such as marriage registration, divorce, separation, debt formation, making a will and the death of the decedent one by one against January 1, 2021. The timeline is clear, and the question of "whether to apply the new law or the old law" is often half solved.

Second, prepare the basis of the old law. For facts that occurred before the implementation, we cannot just copy the provisions of the Civil Code. It is necessary to find out the "Marriage Law", "Inheritance Law" and relevant judicial interpretations and notices at that time, especially Article 24 of the "(II) for Judicial Interpretation of Marriage Law" and the two notices of the Supreme People's Court on marital debts in 2017 and 2018, so as to avoid "only talking about the new law and not talking about the old law" leading to the loss of evidence.

Third, make good use of "favorable tracing". If the facts of the case occurred before the implementation, and the provisions of the Civil Code are obviously more conducive to protecting one's own legitimate rights and interests, one should take the initiative to make a request for the application of the Civil Code in the litigation, explaining clearly how the "three more conducive" are established, and turning the exception rule into one's own offensive point.

Fourth, pay attention to the “but” clauses in the transitional provisions. Article 14 and Article 15 both carry "except that the estate has been disposed of before the implementation of the Civil Code". If the other party advocates the application of the civil code, it can first check whether the estate has been divided before implementation-this is often the decisive link.

9. FAQ

Question 1: Should we focus on “when to file the lawsuit” or on “when the facts occurred”?

Look at the time of the fact. If a legal fact occurs after January 1, 2021, the Civil Code shall apply in principle; if it occurs before it, the law at that time shall apply in principle. The time of prosecution itself is not a criterion of judgment.

Question 2: We got divorced in 2019, but only discovered in 2022 that the other party had concealed assets. Can we redivide the marital property?

Before the fact of divorce takes place, whether it can be divided again and how to calculate the statute of limitations should be judged in principle in combination with the law at that time and the Civil Code; Article 1092 of the Civil Code clearly stipulates the situation of hiding and transferring common property, and the statute of limitations for requesting division again usually starts from the date of discovery, and the details should still be determined in combination with the convergence rules.

Question 3: Is the printed will made in 2018 definitely invalid?

Not necessarily. According to Article 15 of Law Interpretation [2020] No. 15, the will printed before the implementation of the Civil Code shall be subject to Article 1136 of the Civil Code for disputes over its validity. As long as it meets the formal requirements such as witness, page-by-page signature, date of year, month and date, it may be deemed valid, except where the estate has been processed before the implementation.

Question 4: Which law applies to the determination of marital joint debts?

The core issue lies in the timing of debt formation and the criteria for its recognition. If it is formed after implementation or continues until after implementation, the rule of Article 1064 of the Civil Code, "Co-signing of debts", shall apply.

Question 5: Can the children (nephews) of brothers and sisters inherit?

Article 1128 of the Civil Code added nephew subrogation inheritance. If the decedent dies before the implementation, and the estate is neither inherited nor bequeathed, the children of his brothers and sisters may request subrogation in accordance with Article 14 of the provisions, except where the estate has been disposed of before the implementation.

Question 6: Which law applies when the second trial only crosses January 1, 2021?

Law Interpretation [2020] No. 15 shall come into force on January 1, 2021, and the first and second instance cases that have not been concluded after the implementation shall be applicable to this provision; the civil code shall not apply to the cases that have been finally tried for retrial or retrial according to the procedure of trial supervision.

Practical experience of 10. lawyers

When dealing with such cases, the first thing is not to file a case in a hurry, but to sit down and draw the "timeline" clearly. What really determines which law to apply is when the legal fact that gave rise to the dispute occurred: the date of registration of the marriage, the form and time of the formation of the will or agreement, the date of the death of the decedent, the time of the payment and the signing of the contract, all with evidence. As soon as many people come up and ask "whether the new law or the old law should be used for prosecution now", the direction is biased-the time of prosecution is usually not decided to apply, but the time when the facts occur is decided.

Each node on the timeline must have a corresponding evidence support. For example, if a marriage or inheritance crosses the line of January 1, 2021, the facts of continuity-long-term living together, continuous repayment of loans, long-term unchanged after the conclusion of the will, etc., should be fixed, and used to claim that such facts that continue until after the implementation of the Civil Code apply. If the other party may invoke the old law to strive for a favorable conclusion, you should prepare the counter evidence of "when is the starting point of the facts" in advance to avoid being led away. During the period that is beneficial to one's own side, one should consciously highlight and give evidence.

In terms of timing, the closer the dispute of rule switching is, the more you should think about the differences between the two results under the old and new laws before the court session, judge which path is more beneficial to you, and then decide which fact to advocate and which period to emphasize. What needs to be reminded is that this is a typical judgment that needs to be compared item by item in combination with the facts of the case. After the case file is obtained, it should first correspond the time point of the fact with the evidence one by one, and then talk about the application of the law. It should not be taken for granted by impression or a sentence "all according to the civil code.

In the face of "the new law or the old law", it is enough to remember three sentences: first, look at when the legal facts occur, not when the prosecution; second, the facts before implementation use the old law in principle, and continue to use the new law after implementation; third, the old law has provisions and the new law is more reasonable (beneficial to trace back), the old law does not provide but the new law has provisions (blank trace back), are two doors that can be pushed voluntarily.

When it comes to operation, it is suggested to finish three things in the consultation and filing stage: organize the complete time line, prepare the legal basis at that time, and reason around the favorable tracing, blank tracing and preparation. In inheritance cases, it is also necessary to check whether the inheritance has been processed before January 1, 2021, because this is directly related to whether the convergence clause can be used. The application of the old and new laws is not a paper concept and deserves to be clarified at the beginning of the case.