Interpretations III of theSupreme People’s Court about Several Issues Concerning the Application of the Marriage Law of the People’s Republic of China

(Adopted at the1525th meeting, on July 4,2011 by the Judicial Committee of the Supreme People’s Court )

With a view to correctly hearing the cases of disputes over marriage and families, interpretations of relevant problems on the application of Marriage Law by people’s court of law are made as follow,according to Marriage Law of the PRC, Civil Procedure Law of the PRC and other relevant laws and regulations:

Article1 The court shall dismiss the application by a party concerned for the declaration of annulment of marriage according to the situations other than the one specified in the Article 10 of the Marriage Law of the People’s Republic of China.

In case a party concerned brings a civil action to claim revocation of marriage registration on the ground that the marriage registration process was flawed, they shall be informed that they may apply for administrative reconsideration or file an administrative lawsuit.

Article2 Where one party of the couple plead with the court to confirm the inexistence of parent-child relationship and has provided necessary evidences to prove it, while the other party does not have the opposite evidence but refuses to do the paternity test, the court may presume that the claim held by such party who pleads confirmation of in existence of parent-child relationship is upheld..

If one party pleads with the court toconfirm parent-child relationship, and provides the necessary evidence to proveit, while the other party has no evidence to the contrary but refuses to do the paternity test, the court may presume that the claim held by such party who pleads confirmation of existence of parent-child relationship is upheld.

Article3 The court shall support the pleading for maintenance claimed by minor children or those children who can not live independently if both parents or one parent refuses to assume the obligation to support children during the existence of the matrimonial relationship.

Article4 The court shall not support the pleading to divide the community property made by a party of the couple during the existence of the matrimonial relationship, except for the following major reasons and without prejudice to the rights and interests of creditors:

a) Where one party has the acts, including, without limitation, hiding, transferring, selling off, destructing, squandering property jointly owned or forging joint debts, which seriously damages the rights and interests in and to properties jointly owned by the couple.

b) Where the people for whom one party concerned has statutory support obligations suffers from serious diseases and needs medical treatment, the other party does not agree to pay the medical expenses.

Article5 The revenue generated by one party’s personal property after marriage, except for fructus and unearnedincrement , should be recognized as property jointly owned by the two parties in marriage.

Article6 Where the parties concerned have agreed that one party gives away his or her real property to the other party before or during the existence of the marriage, and then revokes the contract of gift before the registration of the gift real property has been changed, the other party pleads an order of specific performance, the people’s court may deal with the case in accordance with the provisions in Article 186 of the Contact Law.

Article7 Where the title of real estate bought by the parents of one party after marriage is registered in the name of the son or daughter of such parents, it is deemed to be donation to their son or daughter and thus to be the personal property of their son or daughter in accordance with the Article 18(3) of the Marriage Law of the People’sRepublic of China. Where the purchase of real estate is financed by parents of both parties, and the title of the real property is registered in the name of one party, the property is deemed be property by jointly owned in accordance with their parents’ respective share of contribution unless otherwise agreed by the parties.

Article8 In case the spouse of the person without capacity for civil conduct has any act, including, without limitation, abuse and abandonment, which jeopardizes the personal or property rights of the party without capacity for civil conduct, others with custody eligibility may plead a change in guardianship in compliance with special procedures; where the substituted guardian takes a divorce proceedings for the party without capacity for civil conduct, the court should accept it.

Article9 The court shall not support the pleading made by the husband for damages on the ground of unauthorized termination of pregnancy by his wife and infringement on his reproductive rights; where both husband and wife dispute over child bearing, resulting in actual rupture of emotion, if a party pleads a divorce, the people’s court shall deal with it in accordance with the provisions in Article 32(3) of the Marriage Law of the People’s Republic of China after mediation fails.

Article10 Where one party in the marriage has signed a real estate purchase contract before marriage, pays the down payment with his/her personal property, takes a loan from the bank, repays the bank mortgage with the community property of both parties after marriage and registers the real estate under the name of the payer of down payment, both parties shall dispose of the real estate by mutual agreement at the time of divorce.

Where both parties fail to reach an agreement based on the preceding paragraph, the people’s court may rule that such real estate vests in the party under whose name the real estate is registered and the loan outstanding thereof shall be the personal debt of such party. Inrespect of the loan repayment jointly paid by both parties after marriage and the corresponding property increment of the real estate, the party under whose name the real estate is registered shall make compensation to the other party at the time of divorce in accordance with the principle specified in Paragraph1 of Article 39 of the Marriage Law of the People’s Republic of China.

Article11 Where one party in the marriage sells a house under co-ownership without the consent of the other party, the third person makes the purchase and payment in good faith with reasonable consideration and completes the property ownership registration formalities, the people’s court shall not uphold the claim made by the other party of the couple for the recovery of the house.

(Where one party in the marriage disposesof the real estate under co-ownership without the consent of the other party,thereby resulting in the loss of the other party of the couple, and the other party claims for compensation of the loss, the people’s count shall uphold such claim.)

Article12 During the existence of the marriage, Where both parties in the marriage make capital contribution to purchase a house under the housing reform scheme in the name of one party’sparent(s), the property ownership is registered under the name of such party’s parent, the people’s court shall not uphold the claim made by the other party for division of the house as their community property at the time of divorce.Such contribution for the purchase of a house may be treated as creditor’s rights.

Article13 Where one party in the marriage, at the time of divorce, has not retired and fails to meet the requirements for receiving endowment insurance benefits, the people’s court shall not uphold the claim of the other party for division of the endowment insurance benefits as their community property; where the endowment insurance premium is paid with the community property of both parties after marriage and one party makes a claim, at the time of divorce, for division of the portion inthe pension account actually paid by him/her during the marriage as the community property of both parties, the people’s court shall uphold such claim.

Article14 Where the parties concerned have reached the property division agreement for the purpose of registered divorce or uncontest divorce filed with the court, but the two parties have failed to reach the divorce agreement and one party goes back on his or her words in the divorce proceedings, the court shall conclude that the agreement for the property division has not gone into effect, and divide the community property according to the actual situation.

Article15 Where in the duration of marriage, the estate that one party can inherit as one of heirs has not been distributed between heirs, and when suing for divorce, the other party requests for distribution the court shall inform the party that he or she should file another suit after the estate will be distributed between heirs.

Article16 lf a borrowing agreement has been concluded between husband and wife to have community property lend to a party for personal business activities, or for other personal matters, the agreement shall be deemed to be an act of disposal of community property as agreed upon. When filing a lawsuit for divorce, the dispute can be handled in accordance with provisions in the borrowing agreement.

Article17 Where both parties have the faults specified in Article 46of the Marriage Law of the People’s Republic of China, the people’s court shall not support the claim made by either or both parties for damages for divorce against the other party.

Article18 After the divorce, if one party files to the court requesting splitting the undivided community property, and after verification that the property proves indeed to be the community property which has not been divided in divorce, the court shall divide it in accordance with the law.

Article19 After the implementation of these interpretations, if there are any discrepancies between these interpretations and previous relevant judicial interpretations made by the Supreme People’s Court and these interpretations shall prevail.