divorce division of property

There are two ways of divorce in China: one is divorce by agreement; The other is litigation divorce.

When the husband and wife choose to divorce by agreement, the two sides reach an agreement on matters such as child support, property and debt disposal. When registering for divorce in the marriage registry or reaching a divorce mediation agreement in the people's court, the property division plan shall be subject to the divorce agreement.

If a husband and wife choose to divorce by litigation, in the absence of property agreement, the basic principle is that the husband and wife share the same property equally, and the people's court will make a judgment according to the specific circumstances of the property and in line with the principle of taking care of the rights and interests of the children, the woman and the innocent party.

Personal property is divided into pre-marital personal property and post-marital personal property.

Personal property before marriage refers to the property acquired by one spouse before marriage registration, including movable property and immovable property. Personal property before marriage is protected by the laws of China. If there is no written property agreement between the two parties, the personal property before marriage will not be divided when divorcing.

Personal property after marriage mainly refers to the personal property owned by one of the husband and wife after marriage registration for agreed or legal reasons. The property acquired by husband and wife during the marriage is, in principle, the joint property of husband and wife, which should be divided when divorced, but the personal property after marriage is not divided when divorced.

I. Main types of personal property before marriage 1. Personal property, such as real estate purchased in full before marriage and registered in personal name, salary, bonus income, intellectual property income and other legal income already obtained before marriage.

2. Personal property rights, including real estate rights and creditor's rights.

3. Interest and natural appreciation of personal property before marriage.

4. Although it was obtained within marriage, it belongs to the property transformed from personal property before marriage.

Second, the main types of personal property after marriage 1, the husband and wife agreed to be the personal property of the husband or wife.

2. Personal property belonging to the husband or wife according to the law.

(1) Medical expenses, living allowance for the disabled and other expenses obtained by one party due to physical injury;

(2) Property that belongs exclusively to the husband or wife as determined in the will or gift contract;

(3) Daily necessities of one party;

(four) other property that should be owned by one party.

According to the judicial interpretation of the Supreme Court, personal property belongs to the husband or wife.

(1) The fruits of one spouse's personal property after marriage and the benefits of natural appreciation.

(2) Before the parties get married, if the parents contribute to the purchase of houses for both parties, the contribution shall be recognized as a personal gift to their children.

(3) Military casualty insurance, disability allowance and medical living allowance belong to personal property.

Third, matters needing attention First of all, according to the laws of our country, personal property will generally not be converted into joint property of husband and wife because of the existence of marriage relationship. It should be noted that if the husband and wife have a clear written agreement on the ownership of personal property before marriage according to law, then the court will generally respect the written agreement of both parties. For example, in the marital property agreement before marriage, the husband and wife clearly agreed that a certain property or a certain property right belongs to one party's personal property, and the other party agreed to the agreement.

Second, the income generated by personal property before marriage is not entirely personal property after marriage. According to the law of our country, the interest and natural appreciation of personal property before marriage still belong to the party's personal property, but the investment income generated by personal property before marriage belongs to the joint property of husband and wife and should be divided when divorced.

Finally, if it involves the sale of personal property before marriage, we should pay attention to the preservation of relevant evidence of personal property before marriage, pay attention to the time node of purchasing property or property rights, such as keeping the property investment certificate, and avoid confusing personal property before marriage with marital property.

The property acquired by husband and wife during the marriage relationship, except the legal personal property and the property agreed by one party, is generally regarded as the common property of husband and wife and belongs to the husband and wife. Husband and wife may also agree in writing on the ownership of the property acquired during the marriage relationship and the property before marriage. If there is a written agreement between husband and wife, the ownership of property shall be subject to the agreement.

1. The main types of joint property of husband and wife * * * 1. Income such as wages, bonuses and labor remuneration obtained during the marriage relationship;

2. Income obtained through production, operation and investment during the marriage relationship;

3. Income actually obtained or obviously obtained through patents, trademarks, publications and other matters related to intellectual property rights during the marriage relationship;

4. The property inherited or donated during the marriage relationship, except the property determined to belong to only one party in the will or gift contract;

5. The income generated by one spouse's personal property after marriage, except fruits and natural appreciation, belongs to the common property of husband and wife;

6. Housing subsidies and housing accumulation funds actually obtained or should be obtained by both men and women;

7. The basic pension and bankruptcy resettlement compensation actually obtained or should be obtained by both men and women.

Second, the marital property system in China is divided into legal property system and agreed property system, and the agreed property system has priority over the legal property system.

According to the agreed property system, both men and women can agree that the property acquired during the marriage relationship and the pre-marital property belong to each other, * * * all or part of it, and some * * * all. The agreement shall be in writing.

If there is no written agreement between husband and wife, under normal circumstances, the property acquired during the marriage relationship is the joint property of husband and wife.

At the time of divorce, if both parties can reach an agreement, both husband and wife will give priority to the same property; If the agreement fails, the people's court shall make a judgment based on the specific circumstances of the property and the principle of taking care of the rights and interests of the children, the woman and the innocent party.

First, the principle of equal rights of husband and wife.

According to the provisions of the Civil Code, under normal circumstances, the property acquired by husband and wife after marriage belongs to the joint property of husband and wife. When dividing marital property, both parties should have equal rights.

In judicial practice, the court will also make differences in specific treatment according to the actual needs of production and life and the source of property. For example, the people's court should make judgments in accordance with the principle of taking care of the rights and interests of children, women and innocent parties.

Second, the principle of taking care of children.

First of all, parents raising minor children must bear the pressure of economic expenses. Although the other party will give some support, from a practical point of view, it is often a drop in the bucket. Secondly, it takes a lot of time and energy to take care of minor children, which will inevitably hinder the career development of the party raising minor children, thus affecting the economic income of one party. Finally, parents who take care of and raise their children have a great responsibility to educate them.

Therefore, in judicial practice, judges tend to take care of and raise minor children when allocating.

Third, the principle of taking care of the woman

Due to the influence of traditional social factors in China, there is a certain gap in the economic strength between men and women. After divorce, the woman's income ability is weaker than that of the man, and the woman belongs to the party that needs financial help more.

Therefore, when divorcing and dividing property, it is more appropriate not only to give more property to the woman, but also to award the property that is particularly needed in a certain life, such as housing.

Fourth, the principle of taking care of the innocent party.

The fault party is the main responsible party for the breakdown of marriage, and bigamy, domestic violence and other behaviors of the fault party often cause physical and mental harm to the innocent party. By increasing the economic cost of the innocent party, we can safeguard the innocent party's interests, so as to comfort the innocent party and make up for the damage. The Marriage and Family Division of the Civil Code clearly stipulates that the innocent party has the right to claim damages.