The interpretation I of the Supreme People’s Court on the application of the marriage and family section of the China Civil Code (hereinafter referred to as the New Interpretation I) has come into force on January 1, 2021. There are 91 articles in total, which are the specific, operational and implementational provisions of the marriage and family section of the Civil Code, as well as the unification of numerous previous relevant old judicial interpretations and opinions. Compared with these previous provisions, we single out the following key changes.

 

1.       Deletion of the Article 7 of the Interpretation III of the Supreme People’s Court on the Marriage Law regarding the purchase of property by parents after marriage

Article 7 of the Interpretation III of the Supreme People’s Court on the Marriage Law stipulates that if the property purchased by the parents of one party after marriage for their children and registered in the name of this party, it can be regarded as the gift only to this party by his parents and shall be recognized as personal property of this party.

There have been many disputes since the promulgation of above Article 7, and conflicts with the Article 22 of Interpretation II of the Supreme People’s Court on the Marriage Law. New Interpretation have deleted this provision and made it clear in the second paragraph of Article 29 that if parents of one party contribute to the purchase of property for both parties after marriage, it shall be dealt with in accordance with their agreement; if there is no agreement or the agreement is not clear, it shall be dealt with in accordance with the Article 1062 of the Civil Code. According to the article 1062 of the Civil Code, property inherited by or donated to the spouse during their marriage shall be property in their joint possession, except for the property that is designated to belong to only one party in a will or any gift contract.

This means that, for the nature of parents’ contribution, if it is after marriage, without special agreement or designation, it shall be regarded as the gift to the spouse, and thus community property of the couple, and no longer be recognized as the gift to one party of the couple registered in the deed.

 

2.       The provision, that the donated property between spouse can be revoked arbitrarily prior to the transfer of ownership, includes partial donation

Article 32 of New Interpretation stipulates that where both parties agree that the real property owned by one party is gifted to the other party or is turned into co-owned property before or during their marriage, and the donator revokes the gift before the registration of the property title transfer and the other party seeks real performance of the gift, the court may deal with it in accordance with Article 658[1] of the Civil.

Although this Article 32 only adds a few words to Article 6 of Interpretation III of the Supreme People’s Court on the Marriage Law, it has a significant impact. According to the expired Judicial Interpretation III, if the real property is gifted between the spouses by way of agreement, prior to the transfer of ownership, the donating spouse could exercise the right of revocation, but it is not clear whether the gift is the whole or part of real property. the New Interpretation adds the situation that a personal real property is turned into co-owned by both spouses, that is, partial gift of real property is now clearly covered.

With this new change, it gets clear that no matter what legal instrument (either a gift contract or pre- or post-nuptial agreement) is adopted in the attempt to transform a personally owned property into a piece of community property (basically meaning a co-owned property), unless the title transfer is not duly registered, there is always a risk of the donating spouse taking back the property. People shall take immediate action to effect title transfer in order to finally realize the intended purpose of property title transformation.

 

3.       Disputes where invalid marriages are confirmed can be appealed.

Article 11 of the New Interpretation stipulates that court shall not grant permission to the plaintiff’s application for withdrawal of the lawsuit after accepting the case for affirming the invalidity of marriage. Mediation is not applicable to the trial of the validity of marriage, and a judgment shall be made in accordance with the law.

Previous regulations of Article 9 of Interpretation I of the Supreme People’s Court on the Marriage Law that “a judgment on the validity of a marriage shall take legal effect once it is made ” and Article 2 of Interpretation II of the Supreme People’s Court on the Marriage Law that “after accepting a case for invalidating a marriage, the court shall, after examination, render a judgment declaring the marriage invalid in accordance with the law” will no longer apply.

Therefore, according to the above previous interpretations, disputes of invalid marriage are executed through special procedures, with the first instance being final decision. However, New Interpretation have been changed into ordinary procedures. Since then, the judgment on the validity of marriage can be appealed, which is a significant change as well.

 

4.       Anti-domestic violence legislation has been a bright spot

Recently, a variety of shocking incidents of domestic violence have emerged, and the public is increasingly concerned about domestic violence, Therefore, to promote the harmony and stability of marriage and family, Article 1 of New Interpretation stipulates that persistent and frequent domestic violence is regarded as “abuse”.

“Zero tolerance” of domestic violence is the value orientation that legislators would like to create. Advocate the good family tradition and carry forward the virtues of harmonious marriage and family, law is also on the way.

 

5.       Clarify the legal status of children born from artificial insemination

Artificial insemination has now been widely recognized by the society. This technology not only brings good news to the infertile patients, but also contributes to the consolidation of the marriage relationship.

Article 40 of New Interpretation clearly stipulates that during the marriage, if spouses agree to carry out artificial insemination, the children born shall be regarded their legitimate children. That is to say, the children born by artificial insemination with the consent of the spouse are no different from the children born in marriage, and parents cannot refuse to undertake corresponding obligations for reasons such as “no genetic factor”.

 

6.       Corresponding amendments on limitation of action along with the Civil Code

1)  Article 31 of Interpretation I of the Supreme People’s Court on the Marriage Law stipulates that the limitation of action for a party to file a lawsuit with Article 47 of the marriage law to request the re division of the couple’s marital property is two years, calculating from the next day of discovery by the party concerned.” Since the limitation of action has been adjusted from two years to three years in the civil code, New Interpretation adjusts the limitation of action for requesting the re-division of the marital property from two years to three years.

2)  Article 30 of Interpretation I of the Supreme People’s Court on the Marriage Law stipulates that in a divorce proceeding in which a no-fault party is the defendant, if the defendant does not agree to the divorce and does not claim damages in the litigation, the defendant may file a separate claim within one year after the divorce. New Interpretation have deleted the one-year limit and should, in principle, apply a three-year limitation of action.

 

In addition to the above changes, most of the others are wording amendments with no substantial impact. The remaining changes we will not be repeated here.


[1] China Civil Code Article 658 The donor may revoke the gift prior to the transfer of its proprietary rights to the granted property. The provision of the preceding paragraph shall not apply to any notarized donation contract or any donation contract of such public welfare or moral obligation nature as disaster relief, poverty alleviation or disability assistance that may not be revoked in accordance with the law.


Post time: Jan-25-2021