(1989 65438+February 13 (minute) No.38)

Local people's courts at all levels, military courts at all levels, intermediate courts of railway transportation and grass-roots units throughout the country.

Courts and maritime courts;

How to determine that the relationship between husband and wife has indeed broken down in the trial of divorce cases by the people's court is now announced.

Some specific opinions ","on the people's court hearing in the name of husband and wife without marriage registration.

Now I am sending you some opinions about the living case, please follow them and pay attention to them in the implementation.

Sum up experience, if you have any comments or questions, please report them to our hospital in time.

Attachment:

How do people's courts determine divorce cases?

Some specific opinions on the relationship between husband and wife have indeed broken down.

(1989165438+1October 2 1)

When trying a divorce case, the people's court shall decide whether the relationship between husband and wife has broken down.

As a dividing line. To judge whether the relationship between husband and wife has really broken down, we should start from the basis of marriage, marriage.

After the relationship, the reasons for divorce, the current situation of the relationship between husband and wife, and the possibility of reconciliation.

Analysis. According to the relevant provisions of the Marriage Law and the experience of trial practice, under any of the following circumstances,

Think that the relationship between husband and wife has indeed broken down. If one party insists on divorce and mediation fails, a judgment can be made according to law.

Never agree to divorce.

1. One party suffers from marital diseases prohibited by law, or one party has physical defects, or others.

There is no cure for not having sex.

2. If you don't know before marriage, get married hastily, and there is no husband-wife relationship after marriage, it is difficult to * * *

Live together.

3. Conceal mental illness before marriage, cure it after marriage, or know each other before marriage.

Married because of mental illness, or one of the spouses suffered from mental illness during their life and could not be cured after long-term treatment.

Yes

4. One party cheats the other party, or cheats to get a marriage certificate in marriage registration.

Yes

After the marriage registration, the two sides have never lived together and there is no possibility of reconciliation.

6. Arranged, bought and sold marriage, and one party immediately filed for divorce or cohabitation after marriage.

For many years, I haven't established a relationship between husband and wife.

7. Being separated for 3 years due to emotional disharmony, there is no possibility of reconciliation, or being subjected to civil law.

The court ruled that the two were not allowed to separate after the divorce 1 year, and failed to fulfill their obligations as husband and wife.

8. One party commits adultery or illegally cohabits with others, but still shows no repentance after education, and there is no fault.

One party sues for divorce, or the wrong party sues for divorce, and the other party does not agree to divorce. After criticism and education,

Punishment, or the people's court ruled that divorce is not allowed, the wrong party sued for divorce, and there was no settlement.

It's possible.

9. One party bigamy, the other party filed for divorce.

10. One party likes to relax and hates work, has bad hobbies such as gambling, fails to fulfill family obligations, and refuses to change after repeated education.

Change, it is difficult for couples to live together.

1 1. One party is sentenced to long-term imprisonment according to law, or its illegal and criminal acts cause serious harm.

Husband and wife are emotional.

12. One party's whereabouts have been unknown for two years, and the other party filed a divorce lawsuit. After the announcement, I found that there was nothing.

I left it.

13. Being abused or abandoned by the other party, or being abused by the relatives of the other party, or abusing the other party.

Relatives, after education, do not change, the other party does not understand.

14. The relationship between husband and wife really broke down for other reasons.

Opinions of the people's court on hearing cases of living together in the name of husband and wife without marriage registration

1989165438+1October 2 1.

When trying a case of cohabitation in the name of husband and wife without marriage registration, the people's court should first seriously point out the illegality and harmfulness of its behavior to both parties and give criticism and education or civil sanctions according to its illegal circumstances. However, based on the reasons for the formation of this "marriage" relationship and the complexity of the specific circumstances of the case, it is feasible to conditionally recognize the de facto marriage relationship in a certain period of time in order to protect the legitimate rights and interests of women and children, contribute to the stability of marriage and family relations, and maintain stability and unity. To this end, according to the legal provisions and trial practice experience, we put forward the following opinions on the trial of such cases:

1,1986 March 15 before the implementation of the marriage registration measures, they did not go through the marriage registration procedures and lived together in the name of husband and wife, and the masses also thought it was a husband-and-wife relationship. If one party brings a lawsuit to the people's court for "divorce" and both parties meet the legal conditions for marriage at the time of prosecution, it can be considered as a de facto marriage relationship; If one or both parties fail to meet the legal conditions for marriage at the time of prosecution, it shall be deemed as illegal cohabitation.

2.1986 March 15. After the implementation of the Marriage Registration Measures, they did not go through the marriage registration procedures and lived together in the name of husband and wife. The masses also thought it was a husband-and-wife relationship. On the one hand, they sued the people's court for "divorce". If both parties meet the legal conditions for marriage when living together, it can be regarded as a de facto marriage relationship; If one or both parties do not meet the legal conditions for marriage during cohabitation, it shall be deemed as illegal cohabitation.

3. Since the implementation of the new marriage registration management regulations of the Ministry of Civil Affairs, cohabitation in the name of husband and wife without marriage registration shall be treated as illegal cohabitation.

4. After the divorce, the two parties have never remarried, failed to perform the remarriage registration procedures, and lived together in the name of husband and wife. If one party sues for "divorce", the illegal cohabitation relationship should generally be dissolved.

5. If a party who has registered marriage forms a de facto marriage relationship with a third person, or a party who has registered marriage with a third person, or a party who has a de facto marriage relationship forms a new de facto marriage relationship with a third person, if one party of the previous marriage relationship requests to be investigated for bigamy, the latter marriage relationship shall be dissolved, regardless of whether its behavior constitutes bigamy. If one party of the original marriage relationship requests to handle the divorce, it should mediate or make a judgment according to the specific circumstances of its marriage relationship.

6, the trial of divorce cases of de facto marriage, mediation should be carried out first. After mediation or withdrawal of the lawsuit, the marriage relationship is confirmed to be valid, and a mediation or ruling is issued; If mediation fails, divorce shall be granted through mediation or judgment.

7 for men and women who live together in the name of husband and wife without marriage registration, if one party requests "divorce" or dissolution of cohabitation, if it is found to be illegal cohabitation after investigation, it shall be ruled to dissolve it.

8, the people's court to hear cases of illegal cohabitation, such as illegitimate children and property division, should be solved together. The specific division of property should take care of the interests of women and children, consider the actual situation of property and the degree of fault of both parties, and divide it appropriately.

9. When the illegal cohabitation relationship is terminated, which party will raise the illegitimate children born by both parties shall be settled through consultation; If negotiation fails, we should make a judgment according to the interests of the children and the specific conditions of both parties. Breastfeeding children should be raised by their parents in principle. If the parents have good conditions, they can be raised by their parents with their consent. If the children are persons with limited capacity for civil conduct, their opinions shall be sought. If one party puts out a minor child for adoption, it must obtain the consent of the other party.

10. When the illegal cohabitation relationship is dissolved, the income and property purchased by both parties during cohabitation shall be treated as ordinary property. Before cohabitation, the property voluntarily donated by one party to the other party can be handled according to the donation relationship; The property demanded by one party from the other party can be handled according to the spirit stipulated in Article (1 12) of the Supreme People's Court's (84) Opinions on Several Issues Concerning the Implementation of Civil Policies and Laws.

1 1. When the illegal cohabitation relationship is dissolved, the creditor's rights and debts formed during cohabitation can be treated as creditor's rights and debts of * * *.

12. When the illegal cohabitation relationship is dissolved, if one party suffers from serious illness during the period of * * *, appropriate care shall be taken when dividing the property, or the other party shall give him a one-time financial help.

13. During cohabitation, one party dies and the other party claims to inherit the deceased's estate. If it is recognized as a de facto marriage relationship, the spouse status can be handled in accordance with the relevant provisions of the inheritance law; If it is recognized as an illegal cohabitation relationship and meets the provisions of Article 14 of the Inheritance Law, it can be handled according to the specific circumstances of mutual assistance.

14. When trying cases of cohabitation in the name of husband and wife without marriage registration, the people's court shall give appropriate civil sanctions according to the relevant provisions of the Marriage Law, General Principles of Civil Law, Opinions on Several Issues Concerning the Implementation of General Principles of Civil Law and other laws and regulations.

15, this opinion shall come into force as of the date of promulgation. In case of any conflict between the past provisions of the Supreme People's Court and this opinion, this opinion shall prevail.

Provisions of the Supreme People's Court on Several Specific Opinions of the People's Court on Handling Child Support in the Trial of Divorce Cases

1 Children under two years old usually live with their parents. A mother may live with her father under the following circumstances:

(1) Suffering from infectious diseases or other serious diseases that cannot be cured for a long time, and it is not suitable for children to live with them;

(2) there are conditions for raising children, but parents require their children to live with them;

(3) For other reasons, children really cannot live with their parents.

2. If both parents agree that children under two years old will live with their parents, which will have no adverse effects on their healthy growth, it can be allowed.

For minor children over two years old, both parents require to live with them. In any of the following circumstances, priority can be given:

(1) has been sterilized or lost fertility for other reasons;

(2) the children have lived for a long time, and changing the living environment is obviously not conducive to the healthy growth of their children;

(3) There are no other children, and the other party has other children;

(4) Children living with their children are conducive to their growth, while the other party suffers from infectious diseases or other serious diseases that cannot be cured for a long time, or there are other conditions that are not conducive to their physical and mental health and are not suitable for living with their children.

The conditions for parents to raise their children are basically the same. Both sides require children to live with their parents. However, if the children have lived alone with their grandparents for many years, and the grandparents require and have the ability to help the children take care of their grandchildren, they can be considered as a priority condition for the children to live with their parents.

5. If parents have disputes about parents living with their father or mother, parents should consider the opinions of minor children over 0/kloc-0.