Interpretation II of the Supreme People’s Court about Several Problems Concerning the Application of the Marriage Law of the People’s Republic of China

(December 26, 2003)

With a view to correctly hearing the cases of disputes over marriage and families, the following interpretation is made about the relevant problems concerning the application of the Marriage Law by the people’s court in accordance with the Marriage Law of the People’s Republic of China (hereinafter referred to as the Marriage Law), the Civil Procedural Law of the People’s Republic of China and other relevant laws and regulations:

Article 1 The people’s court shall refuse to accept any lawsuit filed by the parties concerned to stop the cohabitation. But, if the parties concerned plead to stop the "cohabitation between a person who has a spouse but co-habitats with a third person" as provided for in Articles 3, 32 and 46 of the Marriage Law, the people’s court shall accept such lawsuits and stop the cohabitation in accordance with the law.

The people’s court shall accept the lawsuits filed by the parties concerned due to disputes over the partitioning of property or the upbringing of children.

Article 2 After the people’s court has accepted a pleading for announcing a marriage invalid, if it finds, upon examination, that the circumstance is true,it shall make a judgment announcing the marriage invalid in accordance with the law. If the plaintiff pleads for withdrawing the lawsuit, he (she) shall be disapproved.

Article 3 After the people’s court has accepted a suit of divorce, if it finds, upon examination, that the marriage is invalid, it shall inform the parties concerned of this and shall make a judgment announcing the marriage invalid.

Article 4 Where the people’s court hears a case of invalid marriage involving the partitioning of property or the upbringing of children, it shall make separate a ruling about the determination of the validity of marriage and about the handling of other disputes respectively.

Article 5 Within a year after the death of either the husband or wife or both of the husband and wife, if the existing party or the interested party files anapplication for announcing the marriage invalid, the people’s court shall accept the application.

Article 6 If the interested party files an application to the people’s court for announcing a marriage invalid in accordance with Article 10 of the Marriage law, the interested party shall be the applicant, and the two parties to the marriage shall be the parties against whom the application is filed.

If either the husband or wife is dead, the existing party shall be the party against whom an application is filed.

If both of the husband and wife are dead, they shall not be listed as the parties against whom an application is filed.

Article 7 Where, with regard to a same marriage, the people’s court has accepted a suit of divorce and an application for announcing the marriage invalid, it shall hear the case of divorce after it has made a judgment about the case of applying for announcing the marriage invalid.

After the marriage as mentioned in the preceding paragraph is announced invalid, if it is related to the partitioning of property or the upbringing of children, the hearing shall continue.

Article 8 The clauses about the partitioning of property in a divorce agreement or the agreement reached by the parties concerned on the partitioningof property shall be binding on both the husband and wife.

Where the party concerned files a lawsuit due to disputes over the above-mentioned agreement on the partitioning of property, the people’s court shall accept the lawsuit.

Article 9 Within one year after the husband and wife are divorced on the basis of agreement, if they back out on the issue concerning partitioning of property and files a suit for modifying or canceling the agreement on the partitioning of property, the people’s court shall accept their application.

After the people’s court has accepted their suit, if it finds that no circumstance of fraud or coercion exists when the agreement on the partitioning of property is established, it shall dismiss the pleading of the parties concerned.

Article 10 If it is found that the pleading of a party concerned for the return of the betrothal gifts given to the other party according to the tradition is under any of the following circumstances, the people’s court shall support himor her:

(1) Both parties fail to complete the marriage register formalities;

(2) Both parties have completed the marriage register formalities,but as a matter of fact, they fail to cohabit;

(3) The betrothal gifts given prior to the marriage make the giver live in difficulty.

The application of Items (2) and (3) in the preceding paragraph shall be based on the precondition of divorce between both parties.

Article 11 During the existence of the marriage, the following properties shall fall within the scope of "other properties that shall be jointly owned" as provided in Article 17 of the Marriage Law:

(1) The income gained by a party from the personal property as an investment

(2) The housing subsidies and the public accumulation fund for housing construction that both parties have actually obtained or should obtain;

(3) The endowment insurance, bankruptcy resettlement compensations.

Article 12 The "income gained from intellectual property" as providedin Item (3) of Article 17 refers to the property income that has already been obtained or is sure to be obtained during the existence of the marriage.

Article 13 A military army man’s injury and death insurance compensation, the injury and disability allowances and the subsistence and medical allowances shall fall within the scope of personal property.

Article 14 Where the people’s court hears a case of divorce involving the partitioning of the demobilization pay, the self-selection employment subsidiesand other lump-sum money given to the military army man shall be calculated by multiplying the number of years during which the marriage exists by the annual average amount, the result of calculation thereof shall be property jointly owned by the husband and wife.

The term "annual average amount" as mentioned in the preceding paragraph refers to the calculation result by dividing the total amount of the above-mentioned expenses by the actual number of years. The actual number of years shall be the margin between the average life expectancy– 70 years and the actual age of the army man when he joins the army.

Article 15 When the husband and wife partition the jointly owned portfolios such as stocks, bonds and investment shares etc., and stocks of unlisted joint-stockcompanies, if they fail to reach an agreement through negotiation or are hard to partition the property on the basis of market price, the people’s court may divide the amount in proportion.

Article 16 When the people’s court hears a case of divorce involving the partition of jointly owned property, the capital contributions made to a limited company in the name of one party shall be handled according to the following circumstances if the other party isn’t a shareholder of this company:

(1) If both husband and wife agree to assign part of or all of the contributions to the spouse of the shareholder, if more than half of the shareholders consent and the other shareholders explicitly waives the priority to purchase the shares, the spouse of this shareholder may become a shareholder of this company;

(2) After the husband and wife have reached an agreement on the to-be-transferred shares formed by capital contributions, if more than half of the shareholders oppose to the transfer, but are willing to purchase the shares at an equal price, the people’s court may partition the income from the transfer of shares incurred from contributions. If more than half of the shareholders are opposed to the transfer of shares, and if they are unwilling to purchase the shares at an equal price as well, they shall be deemed to consent to the transfer, and the spouse of the shareholder may become a shareholder of this company.

The proof used for showing the consent by more than half of the shareholders as mentioned in the preceding paragraph may be a resolution of the shareholders’ meeting or a written statement of the shareholders obtained by other lawful means.

Article 17 When a people’s court hears a case of divorce involving the partition of jointly owned property, the capital contributions made to a partnership enterprise in the name of one party shall be handled according to the following circumstances if the other party isn’t a member of this partnership enterprise, and if both the husband and wife agree to assign all or part of the shares in the partnership enterprise to the spouse uponnegotiation:

(1) If all other partners agree on the assignment, the spouse may become a partner in accordance with the law;

(2) If the other partners disagree on the assignment and refuse to exercise the priority to be transferred under equal conditions, the property income from the transfer may be partitioned;

(3) If the other partners disagree about the assignment and refuse to exercise the priority to be transferred, but they consent that the partner may withdraw from partnership or may be return part of the shares, the property returned back may be partitioned;

(4) If the other partners disagree to the transfer, refuse to exercise the priority to be assigned and oppose to the partner’s withdrawal from partnership or returning part of the shares, they shall be deemed to consent to the assignment, the spouse may become a partner in accordance with the law.

Article 18 With regard to a sole-investor enterprise established by the husband and wife in the name of either of them, when the people’s court partitions their jointly owned property in this sole-investor enterprise, it shall handle the property according to the following circumstances:

(1) If one party insists on running the enterprise, after the enterprise assets have been assessed, the one who obtains the enterprise shall give corresponding compensations to the other;

(2) If both insist on running the enterprise, on the basis of price competition, the one who obtains the enterprise shall give corresponding compensations to the other;

(3) If both parties are unwilling to run the enterprise, the relevant provisions in the Individual Sole-investor Enterprise Law of the People’s Republic of China shall be applicable.

Article 19 With regard to a house rented by one party before marriage and purchased by using jointly owned property after marriage, unless the house ownership certificate is registered under one party, the house shall be determined as a property jointly owned by the husband and wife.

Article 20 When both parties fail to reach an agreement on the value and ownership of the house among the properties jointly owned by the husband and wife, the people’s court shall handle it according to the following circumstances:

(1) If both parties claim on the ownership of the house and agree toobtain it by price competition, they shall be supported;

(2) If one party claims on the ownership of the house, an assessment shall be made by an assessment institution according to the market price, and the party who acquires the ownership of the house shall compensate the other party correspondingly;

(3) If neither of them claims on the ownership of the house, the house may be auctioned upon the application of the parties concerned, and the income arising from the auction shall be partitioned.

Article 21 If both parties are at dispute over a house without ownership or without complete ownership and fail to reach an agreement upon negotiation，it is improper for the people’scourt to rule on the ownership of the house, it shall, in light of the actual circumstance, rule that the house be used by the parties concerned.

If the parties concerned are at dispute over a house as mentioned inthe preceding paragraph after having acquired the complete ownership, they may bring a separate lawsuit in the people’s court.

Article 22 Before the parties concerned get married, if the parents spend money on purchasing a house for them, the money shall be determined as a personal donation to their own son or daughter except that the parents clearly express that the money is donated to them both.

After marriage, if the parents spend money on purchasing a house for them, the money shall be determined as a donation to both the husband and wife except that the parents clearly expressed that the money is donated to one party.

Article 23 Where a creditor files a claim for the personal debt of a party before marriage against his (her) spouse, the claim shall not be supported unless the creditor is able to prove that the debt is used for their joint family living after marriage.

Article 24 During the existence of the marriage, if either the husband or wife files a claim for a personal debt in the name of one party, the debt shall be treated as a joint debt of the husband and wife, unless either the husband or wife is able to prove that the creditor and the debtor have clearly stipulated it as a personal debt or to show that the debt is under any of the circumstanceas prescribed in the third paragraph of Article 19 of the Marriage Law.

Article 25 Where the divorce agreement of the parties concerned, the judgment, ruling, or letter of mediation has decided on the issue concerning the partitioning of properties, the creditor is still entitled to file a claim against the husband and wife for their joint debt.

After one party has cleared off the joint debt, if he or she file a claim against the other party for recovery on the basis of the divorce agreement or the legal writing of the people’s court, the claim shall be supported by the people’s court.

Article 26 If either the husband or wife is dead, the existing party shall bear several and joint liabilities for the joint debt formed during the existence of marriage.

Article 27 After the parties concerned have gone through the divorce registration formalities in the marriage registration organ, if a party raises a claim for compensation for damage in the people’s court according to Article46 of the Marriage Law, the people’s court shall accept the claim. But if theparty concerned has clearly waived such claim when handling the divorce based on agreement, or when he (she) raises the claim, it exceeds one year since the completion of the divorce register formalities, such claim shall be denied.

Article 28 Where either the husband or wife applies for take preservative measures against the spouse’s personal property or the properties jointly owned by the husband and wife, the people’s court may, to the extent of the losses that may be incurred due to taking preservative measures, determine an appropriate financial assurance in light of the actual circumstances.

Article 29 The present Interpretation shall be implemented as of April 1, 2004.

After the present Interpretation takes effect, they shall be applicable to the new cases of disputes over marriage and families accepted by the people’s courts.

After the present Interpretation takes effect, if there are any discrepancies between the former relevant judicial interpretation made by the Supreme People’s Court and the present Interpretation, the latter shall prevail.