Ningbo marriage was found to be invalid, property, children and compensation how to do.
Many people will encounter the same confusion: one party is bigamy, or the two are collateral blood relatives within three generations, or one party has not reached the legal marriage age when they get married. After such a marriage is declared invalid by the court, how to divide the property earned by living together over the years, who owns the children, and whether they can be compensated? Let's put the conclusion first: the court's declaration of the marriage is just a legal denial of the validity of the marriage, which does not mean that everything in the relationship is written off. The property acquired during cohabitation shall be dealt with in accordance with the rules, and the children born to them shall still be subject to the provisions of parents and children, and the relationship between parents and children shall not be changed due to the invalidity of the marriage; the party who is not at fault for the invalidity of the marriage may also claim damages from the party at fault. In short, the marriage has been annulled, but the division of property and matters concerning the children must still be handled one by one in accordance with the law.
1. The starting point of the consequences: it has never had legal binding force from the beginning.
Article 1054 of the Civil Code stipulates that invalid or annulled marriages are not legally binding from the beginning, and the parties do not have the rights and obligations of husband and wife. The two words “from the very beginning” here are very important. Article 20 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code further clarifies that the so-called non-legally binding from the beginning means that an invalid marriage or a revocable marriage is confirmed to be invalid or revoked in accordance with the law., It is determined that the marriage is not protected by law from the beginning. Once the court renders a judgment declaring the marriage invalid, the marriage is not recognized by law from the date of registration.
Many people confuse annulment with divorce, but the two are actually entirely different. The premise of divorce is a legal and valid marriage, which deals with the dissolution of the existing marriage relationship; while an invalid marriage has no legal effect from the beginning, what the court does is to confirm the invalidity, not to dissolve the marriage. The parties do not have the rights and obligations of husband and wife, do not enjoy the right of spouse between each other, and are not ex-husband and ex-wife, but have not had the status of husband and wife in the legal sense since the beginning.
There are also special features in the procedure. Article 11 of the (I) of interpretation stipulates that after the people's court accepts a case requesting confirmation of the invalidity of the marriage, the plaintiff's application for withdrawal shall not be permitted; mediation shall not be applied to the trial of the validity of the marriage, and a judgment shall be made in accordance with the law; the part involving the division of property and the upbringing of children may be mediated, and a judgment shall be made together if no agreement is reached. Following the judgment, the court shall also confiscate the marriage certificates of both parties and forward the final and effective judgment to the local marriage registration authority. There is only one core of these procedures: first find out whether the marriage is effective or not, and then talk about property and children.
2. How should the property be handled?
When the marriage is confirmed to be invalid, the first thing that comes into effect is property. Article 1054 stipulates that property acquired during cohabitation shall be disposed of by agreement between the parties; if the agreement fails, the people's court shall make a judgment in accordance with the principle of taking care of the innocent party. Article 22 of the (I) of Interpretation further stipulates that for a marriage that has been confirmed to be invalid or revoked, the property acquired by the parties during the period of cohabitation shall be treated as joint ownership, except for the property that is proved to be owned by one of the parties. When the two articles are combined, the order of handling is very clear: first, it depends on whether the two can negotiate. If the negotiation fails, the court will make a judgment. When making a judgment, the principle of taking care of the no-fault party should be highlighted.
Here, special attention must be paid to avoid directly applying the rules governing marital property. After a marriage is declared invalid, the parties do not have the rights and obligations of spouses, and, in principle, the marital property regime does not apply. The characterization of property depends on evidence: if a party claims that a property belongs to itself, it must produce evidence to prove that it is personal property. The allocation of the burden of proof often directly determines the extent to which one party prevails. This is not the same as the rule that the income after marriage in a legal marriage is in principle the common property of the husband and wife and is generally equal at the time of division.
If the reason for invalidity is bigamy, the rules should be tightened even further. Article 1054 clearly stipulates that the property disposal of an invalid marriage caused by bigamy shall not infringe upon the property rights and interests of the parties to the legal marriage; Article 16 of the (I) of interpretation also stipulates that when the people's court hears a case of an invalid marriage caused by bigamy, if property disposal is involved, the parties to the legal marriage shall be allowed to participate in the lawsuit as a third party with independent claim. In other words, the legal spouse of the party who committed bigamy has the right to join the lawsuit and claim the portion of the property that rightfully belongs to them.
As for how to determine the joint contribution, the focus is on obtaining evidence: the transfer records of banks or Alipay and WeChat, the signers on the purchase and purchase contracts, the payment flow of decoration and mortgage, the registration of property rights, and the statements about contribution and attribution in the chat records of both parties are all important bases for the court to judge the joint contribution. Debts incurred for the purpose of common living and joint business operations are generally recognized in practice as joint debts and are to be shared by both parties.
3. What should we do about the child?
Beyond one’s possessions, what people find hardest to let go of is their children. The last paragraph of Article 1054 stipulates that the provisions of this Law on parents and children shall apply to the children born to the parties. This statement carries significant weight: when a marriage is declared invalid, what changes is only the marital status between the parents; it does not alter the blood relationship between the parents and their children. The rights and obligations between parents and children shall not be affected by the invalidation of their parents' marriage, and children shall enjoy the same rights as children born in wedlock, and no organization or individual shall endanger or discriminate against them.
The determination of custody shall be governed by the general rules of law pertaining to parent–child relationships. Children under the age of two shall be directly raised by their mothers as a principle; children who have reached the age of two, if an agreement fails, the people's court shall, in accordance with the specific circumstances of both parties, make a judgment in accordance with the principle of being most beneficial to the minor children; children who have reached the age of eight, Their true wishes shall be respected. In cases of marital invalidity, the criteria for determining child custody are no different from those in divorce cases; the focus is on which parent is better able to promote the child’s healthy development.
The parent who does not have direct custody of the child shall bear the costs of child support. Maintenance expenses, including living expenses, education expenses and medical expenses, are generally paid monthly, and the amount can be determined according to the actual needs of the children, the affordability of both parents and the actual living standard of the local area; if there is a fixed income, it is usually paid according to the proportion of 20% to 30% of the total monthly income. The party who does not directly support also has the right of visitation, and the other party has the obligation to assist. The nullification of marriage generally has no effect on the children's surname, household registration, schooling and other matters. Children are innocent, and the legal protections afforded to them do not diminish simply because their parents’ marriage is invalid.
4. Damages compensation for the party without fault
Paragraph 2 of Article 1054 stipulates that if the marriage is invalid or annulled, the party without fault has the right to claim damages. This is a new provision added to the Civil Code, modeled after the system of damages compensation for the faultless party in divorce proceedings. The innocent party has invested energy and money before the marriage is declared invalid. If the marriage is invalid or revoked due to the fault of the other party, it will be damaged both mentally and economically. Therefore, the law gives it the right to claim compensation.
To claim this compensation, several conditions must be met. First, the party asserting the right of claim must be free from fault. In an invalid marriage, the innocent party is the party who meets the substantive elements of the marriage and is unaware of the fact that the other party does not meet the substantive elements of the marriage. Second, the other party has committed a legally recognized fault or unlawful act, and it is precisely this fault that has led to the marriage being declared invalid or annulled. Third, the marriage was declared invalid or revoked, causing objective damage to the innocent party, including personal damage, property damage and moral damage. The right holder is limited to the party free from fault; if both parties are at fault, neither party shall be entitled to the right.
There is no fixed standard for the amount of compensation, which is determined by the court according to the combined fault degree, damage consequences, economic conditions of both parties and local living standards. In terms of proof, three types of evidence need to be prepared: first, evidence that one is not at fault, such as not knowing the other party's illegal situation; second, evidence that the other party is at fault, such as concealing medical history or bigamy materials; third, evidence of the consequences of damage and its causal relationship with the invalid marriage. Taking care of the no-fault party in the division of property and claiming damages separately are two paths that can be used together; in the case of bigamy, damages shall also not infringe on the property rights and interests of the parties to the legal marriage.
5. Should the betrothal gifts be returned?
How to deal with the bride price when the marriage is invalid, there is no specific article in the law, and in practice, it is generally judged by referring to the provisions of Article 5 of the (I) of Interpretation of Marriage and Family. The article lists three situations in which the bride price can be returned: first, the parties have not registered their marriage; second, the parties have registered their marriage but have not lived together; and third, the payment before marriage has led to difficulties in the life of the payer. The application of the second and third items is conditional on the divorce of both parties.
In the scene of invalid marriage, although both parties have registered their marriage, once the registration is confirmed to be invalid, this marriage has no legal binding force from the beginning, which is equivalent to not establishing a valid marriage relationship. Therefore, the party who pays the bride price can often ask for return. However, the court will consider whether the two parties live together, the length of time they live together, the amount of the bride price, local customs and habits, the degree of fault of both parties, the actual use of the bride price and whether they have children, etc., and finally decide on the amount of the refund.
The request for the return of the bride price can be claimed together with the disposal of the property during the cohabitation and the damage compensation of the no-fault party, and there is no need to divide it into several cases to go back and forth. For the payer, keeping the transfer voucher, matchmaker's testimony, betrothal list and other evidence is the key to getting the money back.
6. who can apply for annulment
Article 9 of the Interpretation (I) stipulates that the subjects who have the right to request confirmation of marriage invalidity according to Article 1051 of the Civil Code include the parties to the marriage and the interested parties. The scope of interested parties shall be determined separately according to the specific reasons for invalidity: on the grounds of bigamy, the close relatives and grass-roots organizations of the parties concerned; on the grounds that they have not reached the legal age of marriage, the close relatives of those who have not reached the legal age of marriage; on the grounds that there is a kinship that prohibits marriage, the close relatives of the parties concerned.
The position of the parties in the litigation is also regulated: if the interested party makes a request, the interested party is the plaintiff, both parties to the marriage relationship are the defendants, and if one of the spouses dies, the surviving party is the defendant. After the death of one or both spouses, if the surviving spouse or any interested party applies to the people’s court for a declaration of the invalidity of the marriage, the people’s court shall accept the case. If the invalid reason involves suspected crimes such as bigamy, you can also report the case to the public security organ, and the procuratorial organ will initiate a public prosecution in accordance with the law to investigate the criminal responsibility of the bigamy party.
A very critical limitation is the disappearance of the situation. Article 10 of the (I) of interpretation stipulates that if the parties request to confirm the invalidity of the marriage, and the legal situation of invalid marriage has disappeared at the time of filing a lawsuit, the people's court shall not support it. The most typical example is under the legal age of marriage: one party is under the age of marriage at the time of marriage, but the legal age of marriage has been reached at the time of prosecution, and the marriage can no longer be declared invalid on this ground. The reason is that the legal cause of invalid marriage is relative, not absolute. Once the lack of conditions is made up, the original marriage will be transformed into legal and valid, and the right of claim will be eliminated.
However, rectification is not applicable in all cases. Bigamy violates monogamy and violates public order and good customs. There is no room for conversion from illegal to legal in nature: even if the previous marriage has been terminated at the time of application, the latter marriage should still be deemed invalid. Therefore, to judge whether it can be corrected or not, we must first look at the specific reasons for invalidity.
7. Differences from voidable marriage
Void marriages and voidable marriages are often discussed together, but they differ in nature. Invalid marriage corresponds to the three legal circumstances stipulated in Article 1051: bigamy, kinship that prohibits marriage, and underage of marriage. These three categories are serious violations of the law. Once established, they are absolutely invalid from the beginning. The revocable marriage corresponds to articles 1052 and 1053. The reason is coercion and concealment of major diseases. The law gives the injured party the right to choose whether to maintain the marriage.
Article 1052 stipulates that in the case of marriage under coercion, the coerced party may apply to the people's court for the annulment of the marriage; in the case of the annulment of the marriage, it shall be made within one year from the date of termination of the coercive act; in the case of the party whose personal freedom is illegally restricted, it shall be made within one year from the date of restoration of personal freedom. What is coercion is clearly defined in Article 18 of the (I) of interpretation: if the perpetrator threatens to cause damage to the life, body, health, reputation and property of the other party or his close relatives, forcing the other party to marry against his true will, it can be regarded as coercion. Article 1053 stipulates that if one party suffers from a major illness, it shall truthfully inform the other party before the marriage registration; if it does not truthfully inform, the other party may request the people's court to cancel the marriage, and it shall know or should know it. The reason for cancellation is filed within one year.
A common feature of both is time sensitivity. One year of revocation belongs to the period of exclusion. Article 19 of the (I) of Interpretation stipulates that the one-year period specified in Article 1052 shall not apply to the suspension, interruption or extension of the statute of limitations; if a party who has been coerced or illegally restricted his personal freedom requests the annulment of the marriage, the provisions of paragraph 2 of Article 152 of the Civil Code shall not apply. This year is basically fixed, and we must hurry up in practice. Another point that is easy to be misunderstood is that, whether it is coercion or concealment of major diseases, requests for annulment of marriage can only be made to the people's court, and the marriage registration authority will no longer accept such applications. Once a voidable marriage is revoked by the court, its legal consequences are the same as invalid marriage, and article 10
54applies.
8. practical suggestions and key points of proof
Combined with the previous rules, whether you are the party who claims the marriage is invalid or the party who is applied, you can prepare from the following directions.
- Act early. The right of annulment of a revocable marriage does not apply to suspension, interruption and extension during the one-year period of exclusion, and once the period is extended, the request for annulment is not supported.
- Systematic forensics. Marriage registration files, paternity test conclusions, transfer and repayment flow, purchase and purchase contracts and registration, decoration bills, and chat records about capital contribution and ownership should be preserved as far as possible.
- Merger Claims. The confirmation of the nullity of marriage, the disposition of property during cohabitation, the maintenance and maintenance of children, visitation rights, damages and the return of bride price are best presented together in one case.
- Pay attention to special restrictions. In the case of invalidity due to bigamy, property disposal and compensation shall not infringe upon the property rights and interests of the parties to the legal marriage.
- Emphasize procedural characteristics. The effect of marriage is not applicable to mediation, not allowed to withdraw at will, property and children can be part of mediation.
9. Frequently Asked Questions
1. After the marriage is declared invalid, can the marriage be registered again?
Sure. An invalid marriage is not legally binding from the beginning, the parties do not have the rights and obligations of husband and wife, and are not in a state of having a spouse in law, which does not affect their re-registration of marriage. However, if the cause of the invalidity is bigamy, the act of bigamy itself may be suspected of being a crime.
2. Must property acquired during an invalid marriage be divided equally?
No. The two parties will deal with it by agreement first, and the court will decide if the agreement fails. Property owned by one party without evidence shall be treated as common ownership, and the court will take care of the non-fault party. The actual result may not be a simple equal division.
3. Will the child definitely be awarded to the mother?
Not necessarily. Under the age of two, the principle shall be directly raised by the mother; if the agreement fails at the age of two, the court shall make a judgment in accordance with the principle of being most beneficial to the minor children; if the child has reached the age of eight, the true wishes of the child shall be respected.
4. Does the compensation claimed by the innocent party include moral damages?
includes. Damages cover personal injury, property damage and moral damage, but the right holder must be the innocent party; if both parties are at fault, neither party has the right to claim this right.
5. The other party conceals a major disease, how long must I propose to cancel it?
It should be filed with the people's court within one year from the date when the cause of cancellation is known or should be known. This year belongs to the period of exclusion, does not apply to the suspension, interruption or extension of the statute of limitations, and can only be requested to the court.
6. When we got married, we didn't reach the legal age of marriage. Now, can we declare the marriage invalid?
No. If the statutory invalid circumstances have disappeared at the time of filing a lawsuit, the people's court shall not support it. If a party who has not reached the legal age of marriage later reaches the age of marriage, he may no longer request the annulment of the marriage on this ground.
10. Lawyer's Practical Insights
Marriage is declared invalid, and the procedure is very different from divorce. Many people don't know the direction at the beginning. In cases where the marriage is confirmed to be invalid, the court will not accept the withdrawal of the case, nor will mediation be applied. The issue of validity must be concluded by the judgment, and only the property and children can mediate. Therefore, if you are the party advocating invalidity, don't expect to "negotiate in private and not file a case". The evidence of the cause of invalidity should be fixed as soon as possible. If you are a party worried about being declared invalid, you should prejudge the three consequences of identity, property and compensation in parallel, and the earlier you intervene, the more active you will be.
The easiest thing to lose in property is to directly copy the idea of sharing the common property of husband and wife. Under the invalid marriage, the income during the cohabitation period shall, in principle, be treated as common. If one party claims that a certain property belongs to himself, he shall produce evidence to prove that it is personal property, and if the evidence fails, it shall be divided as common. Therefore, you should now sort out the sources of real estate, deposits, operating income and capital contribution certificates, who gave it and how, and use evidence to make clear "who belongs to" instead of taking it for granted.
For the party without fault, don't forget to claim the damages together, which is a piece that many people easily miss. Judge whether you are at fault, where the other party is at fault, whether the direct relationship can claim compensation and whether you are "taken care of" when dividing ". With regard to children, the relationship between parents and children is not changed by the annulment of marriage, and maintenance and maintenance payments are handled as usual. As for whether the bride price will be returned or not, it should be combined with factors such as whether to register, whether to live together, and the length of life. It is not appropriate to generalize. It is better to talk about the amount in the mediation stage to avoid being delayed to the end.
Gather up the previous content: When the parties in Ningbo encounter the situation that the marriage is determined to be invalid, they don't have to think that they have no way to claim the property and children just because the marriage is invalid. The correct way is: first find out which specific cause of invalidity belongs to, and judge whether there is room for the situation to disappear or another cancellation procedure is needed; Then the property acquired during cohabitation shall be dealt with in the order of priority of agreement, common ownership and care for the innocent party. The upbringing, alimony and visitation of children shall all return to the relationship between parents and children. The party who has no fault for the invalid marriage shall claim damages in time; the bride price is treated as appropriate with reference to rules such as failure to register a marriage, taking into account the time of living together, the fault of both parties, the amount of payment, etc. In the case of a revocable marriage, prosecution must be brought within the time limit prescribed by law, and attention must be paid to the procedural characteristics of cases of nullity of marriage.