Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II) (Revised in 2017)

Fa Shi [2017] No.6

February 28, 2017

(Adopted at the 1299th meeting of the Judicial Committee of the Supreme People's Court on December 4, 2003; Revised according to the Supplementary Provisions of the Supreme People's Court on the Interpretation on Several Issues concerning the Application of the Marriage Law of the People's Republic of China (II) at the 1710th meeting of the Judicial Committee of the Supreme People's Court on February 20, 2017)

In order to correctly try marital and family dispute cases, in accordance with the Marriage Law of the People's Republic of China (hereinafter referred to as the "Marriage Law"), the Civil Procedure Law of the People's Republic of China and other pertinent laws, issues concerning the application of the Marriage Law by the People's Court are hereby interpreted as follows:

Article 1 Where a party concerned files a suit requesting for the dissolution of cohabitation relationship, the People's Court shall not accept it. However, if the cohabitation relationship which the party concerned requests to dissolve is in compliance with the condition of "one party who has a spouse cohabits with another person" as specified in Article 3, 32 or 46 of the Marriage Law, the People's Court shall accept the suit and dissolve the cohabitation relationship in accordance with the law.
Where a party concerned files a suit in respect of a dispute over the partition of property or support of children arising during the period of cohabitation, the People's Court shall accept the suit.

Article 2 Where the People's Court accepts a case involving an application for the annulment of a marriage, the nullity of which is verified upon examination, the People's Court shall, in accordance with the law, make the judgment of annulling the marriage. The application for the withdrawal of the suit by the plaintiff shall not be approved.

Article 3 Where the People's Court accepts a divorce case and the nullity of the marriage is certified upon examination, the People's Court shall inform the parties concerned of the nullity of the marriage, and, in accordance with the law, make the judgment of annulling the marriage.

Article 4 Where the People's Court hears a case of the nullity of a marriage, which involves the partition of property or support of children, the People's Court shall, in respect of the determination of the validity of the marriage and the handling of other disputes, respectively make judgments.

Article 5 Where, within one year after either or both of a couple die, the living party or an interested party applies for the annulment of the marriage in accordance with Article 10 of the Marriage Law, the People's Court shall accept the application.

Article 6 Where an interested party, in accordance with Article 10 of the Marriage Law, files an application with the People's Court for the annulment of marriage, the interested party shall be the applicant while both parties to the marital relationship shall be the respondents.
Where either of a couple dies, the living party shall be the respondent.
Where both of the couple die, no one shall be listed as the respondent.

Article 7 Where the People's Court respectively accepts a divorce case and a case involving an application for the annulment of marriage in respect of the same marital relationship, the People's Court shall try the divorce case after making the judgment in respect of the case involving the application for the annulment of marriage.
Where the marital relationship as referred to in the preceding paragraph is declared to be invalid, and the case involves the partition of property or support of children, the People's Court shall proceed with the trial of the case.

Article 8 The clauses under a divorce agreement related to the partition of property or the agreement reached by the parties concerned in respect of the partition of property due to divorce are legally binding upon both the man and woman involved.
Where the party concerned files a suit in respect of a dispute over the performance of the foresaid property partition agreement, the People's Court shall accept the suit.

Article 9 Where both man and woman go back on their word over the issue of partition of property and request the alteration or annulment of the property partition agreement within one year after the divorce by agreement, the People's Court shall accept the request.
Where the People's Court does not discover circumstances such as deception and duress for the conclusion of the property partition agreement after trying the case, the claim of the party concerned shall be rejected in accordance with law.

Article 10 Where a party concerned requests the return of bride price paid according to the custom, which is in compliance with any of the following conditions upon investigation, the People's Court shall uphold the request:
1. Both parties have not completed the procedure of marriage registration;
2. Both parties have completed the procedure of marriage registration but do not live together; and
3. The payment of the bride price prior to the marriage leads to the payer's difficulty in living.
The application of Items 2 and 3 of the preceding paragraph shall be conditioned on divorce between both parties.

Article 11 During the period of the marital relationship, the following property shall be classified as "other property that shall be jointly owned" as specified in Article 17 of the Marriage Law:
1. Proceeds that one party acquires from investment of personal property;
2. Housing subsidies and housing fund that both the man and woman have actually acquired or should acquire; and
3. Insurance of old age pension and compensation for bankruptcy that both the man and woman have actually acquired or should acquire.

Article 12 "Proceeds from intellectual property" specified in Item 3 of Article 17 of the Marriage Law shall refer to the property proceeds which has been actually acquired or may be definitely acquired during the period of the marital relationship.

Article 13 A soldier's casualty insurance compensation, subsidies for disability, subsidies for medical payment and living expenses shall be classified as personal property.

Article 14 Where the People's Court hears a divorce suit in which demobilization pay, payment for independently choosing profession and other one-off payment etc. given to a soldier are involved, the amount which is derived by multiplying the number of years of the marital relationship by the annual average amount shall be jointly owned by the couple.
The annual average amount in the preceding paragraph shall refer to the amount which is derived by averagely dividing the total amount of the aforesaid payment to the soldier by the number of the specific years. The number of the specific years shall be the margin between seventy years which is the average lifespan and the actual age at which the soldier is enrolled for military service.

Article 15 Where no agreement can be reached through negotiation or there is difficulty in allotting them according to the market value in the partition of the couple's jointly owned property such as stocks, bonds, investment fund shares and other negotiable securities etc. as well as the shares of unlisted joint stock limited companies, the People's Court may partition the amount in proportion.

Article 16 Where the People's Court hears a divorce suit which involves the partition of the couple's jointly owned property such as the amount of capital contribution in one party's name to a limited liability company, and the other party is not a shareholder of the aforesaid company, the People's Court shall respectively handle the lawsuit according to the following situations:
1. Where the couple, upon mutual consent through negotiation, partially or entirely transfer the amount of capital contribution to the shareholder's spouse, and more than half of the shareholders agree thereto while the other shareholders expressly waive the pre-emptive right thereof, the shareholder's spouse may become a shareholder of the company; or
2. Where the couple reach an agreement on the amount of capital contribution to be transferred in respect of the number of shares and the price, etc. through negotiation, yet more than half of the shareholders fail to agree thereto but agree to purchase the amount of capital contribution at the same price, the People's Court may partition the property derived from transferring the amount of capital contribution. Where more than half of the shareholders fail to agree thereto but also fail to agree to purchase the amount of capital contribution at the same price, they shall be deemed as agreeing to the transferring thereof and the shareholder's spouse may become a shareholder of the company.
The evidence used to prove that more than half of the shareholders agree thereto as specified in the preceding paragraph may be the resolutions of the shareholders' meeting or the shareholders' written statement obtained by the party concerned by any other lawful means.

Article 17 Where the People's Court hears a divorce suit which involves the partition of the couple's jointly owned property such as the capital contribution in one party's name to a partnership enterprise, while the other party is not a copartner of the foresaid enterprise, and the couple, upon mutual consent through negotiation, partially or entirely transfer the property shares in the partnership enterprise to the other party, the People's Court shall respectively handle the lawsuit according to the following situations:
1. Where the other copartners unanimously agree thereto, the spouse shall, in accordance with the law, obtain the status of a copartner;
2. Where the other copartners fail to agree to the transfer thereof but perform their preemptive right under the same conditions, the People's Court may partition the property derived from the transferring thereof;
3. Where the other copartners fail to agree to the transfer thereof and also fail to perform their preemptive right, yet they agree to the withdrawal from the partnership of the copartner or to return part of the property shares, the People's Court may partition the returned property shares; or
4. Where the other copartners fail to agree to the transfer thereof, and fail to perform their preemptive right, and also fail to agree to the withdrawal from the partnership of the copartner or to return part of the property shares, they shall be deemed as agreeing to the transfer thereof and the spouse shall, in accordance with the law, obtain the status of a copartner.

Article 18 Where the couple invest on a sole proprietorship enterprise in one party's name, the People's Court, when partitioning the couple's jointly owned property in the sole proprietorship enterprise, shall respectively handle the lawsuit according to the following situations:
1. Where one party claims for running the enterprise, the party who obtains the enterprise shall give corresponding compensation to the other party after the evaluation of the enterprise assets is conducted;
2. Where both parties claim for running the enterprise, then on the basis of the competitive bidding of both parties, the party who obtains the enterprise shall give corresponding compensation to the other party; or
3. Where neither of the parties is willing to run the enterprise, the People's Court shall handle the lawsuit in accordance with the Law of the People's Republic of China on Sole Proprietorship Enterprises and other relevant provisions.

Article 19 Where the house is rented before marriage and purchased after marriage with jointly owned property by one party and the house ownership certificate is registered under one party's name, the house shall be deemed as the couple's jointly owned property.

Article 20 Where both parties fail to reach an agreement on the couple's jointly owned property in respect of the value and ownership of the house, the People's Court shall respectively handle the lawsuit according to the following situations:
1. Where both parties claim for the ownership of the house and agree to obtain the ownership through competitive bidding, it shall be approved;
2. Where only one party claims for the ownership of the house, the party who obtains the ownership shall give corresponding compensation to the other party after the house's value is assessed according to the market price by assessment institutions; or
3. Where neither of the party claims for the ownership of the house, then upon the application of the parties concerned for the auction of the house, the People's Court shall partition the money gained therefrom.

Article 21 Where both parties have disputes over and fail to reach an agreement on the house whose ownership has not been acquired or has not been completely acquired upon divorce, it is not suitable for the People's Court to make judgment of the ascription of the ownership of the house, instead, the People's Court shall, according to the actual situation, make the judgment of which party concerned shall enjoy the right of use of the house.
Where a party concerned has disputes over the ownership of the house as specified in the preceding paragraph after its complete ownership has been acquired, the party concerned may separately file a suit to the People's Court.

Article 22 Where the parents of a party concerned spend money on purchasing a house for both parties before marriage, such money shall be deemed as individual bestowal by the parents upon their own child, unless the parents otherwise expressly state that the bestowal is bestowed upon both parties.
Where the parents of a party concerned spend money on purchasing a house for both parties after marriage, such money shall be deemed as bestowal upon both parties, unless the parents otherwise expressly state that the bestowal is only bestowed upon one party.

Article 23 Where a creditor claims for its right against the spouse of a debtor in respect of the personal debt that the debtor bears before marriage, the People's Court shall not give its support thereto unless the creditor can prove that the debt is used for the co-living expenses of the family after marriage.

Article 24 Where a creditor claims for the debt that one party of the couple bears in its own name during the period of the marital relationship, the debt shall be treated as jointly- borne debt of the couple, unless one party of the couple can prove that the creditor and the debtor have agreed expressly on the debt being personal debt, or that the debt is under one of the circumstances provided in Clause 3 of Article 19 of the Marriage Law.
Where one party of a couple colludes with any third person to fabricate any debt and the said third person claims any right, the people's court shall not support it.
Where one party of a couple bears any debt during any illegal or criminal activity such as gambling or drug taking and a third person claims any right, the people's court shall not support it.


Article 25 Where the divorce agreement of the parties concerned or the judgment paper, ruling, or mediation letter issued by the People's Court have already made a decision on the partition of the couple's jointly owned property, the creditor shall still enjoy the right of claiming for its right against both the man and woman in respect of the jointly- borne debt of the couple.
Where one party, after it bears the joint liability in respect of jointly- borne debt and on the basis of the divorce agreement or the legal documents of the People's Court, claims for its right of recourse to the other party, the People's Court shall give its support thereto.

Article 26 Where the husband or wife dies, the living party shall bear the joint liability in respect of the jointly- borne debt during the period of the marital relationship.

Article 27 Where a party concerned, after undergoing the divorce registration in the marriage registration authority, in accordance with Article 46 of the Marriage Law, files a suit to the People's Court claiming for compensation for damage, the People's Court shall accept the lawsuit. Provided that the party concerned expressly waives the claim upon the divorce by agreement, or files the suit after one year from the date of completion of the divorce registration, the People's Court shall not give its support thereto.

Article 28 Where one party of the couple applies for preservation measures on the spouse's personal property or the jointly-owned property of the couple, the People's Court may, within the scope of losses that may be incurred due to adopting the preservation measures and according to the actual situations, determine the reasonable amount of property as financial assurance.

Article 29 This Interpretation shall come into force as of April 1, 2004.
After this Interpretation takes effect, they shall be applicable to the marriage and family dispute cases under first trial accepted by the People's Court.
After this Interpretation takes effect, in case of any discrepancy between other pertinent judicial interpretations previously made by the Supreme People's Court and this Interpretation, this Interpretation shall prevail.