Case analysis of Chinese style fake divorce, legal consequences of fake divorce

A sham divorce has the following legal consequences:

1. After both parties receive the divorce certificate or the divorce judgment takes effect, the marriage relationship between the two parties is dissolved, and the application for revocation cannot be applied for except for the statutory revocation;

2. For property and debts, if the two parties divide them unequally, if there is a subsequent dispute and the parties are unable to provide sufficient evidence, the court will not support their claims;

3. Other legal consequences.

[Legal basis].

Article 1079 of the Civil Code of the People's Republic of China.

If one of the husband and wife requests a divorce, the relevant organization may conduct mediation or directly file a divorce lawsuit with the people's court.

People's courts hearing divorce cases shall conduct mediation; If the relationship has indeed broken down and mediation fails, the divorce shall be granted.

In any of the following circumstances, if mediation fails, a divorce shall be granted:

1) bigamy or cohabitation with another person;

2) Committing domestic violence or abusing or abandoning family members;

3) Having bad habits such as gambling and drug addiction that they have repeatedly taught and not changing;

4) Separated for two years due to emotional discord;

5) Other circumstances that lead to the breakdown of the relationship between husband and wife.

Where one party is declared missing and the other party initiates divorce proceedings, the divorce shall be granted.

Where, after a people's court has ruled that divorce is not permitted, the parties have been separated for one year, and one party initiates divorce proceedings again, the divorce shall be granted.

Methods of division of property in divorce (1) The joint property of the husband and wife shall generally be divided equally. In other words, the joint property of the husband and wife is, in principle, divided equally; According to the actual needs of production and life and the actual needs of property, the specific treatment can also be different. Items that belong to the exclusive use of the individual are generally owned by the individual.

2) The joint property of the husband and wife who live separately and manage and use them separately shall be owned by the management and user party when divided; In the case of a significant difference, the party who has acquired the excess property shall compensate the other party with property equivalent to the difference. (3) If the registered marriage Bu Hong has not yet lived together, and the bride price is paid in accordance with custom, or if the payment before marriage causes the payor to live in difficulty, the other party may be requested to return the bride price at the time of divorce. (4) If one party operates in partnership with another party with the joint property of the husband and wife, the property of the tenant may be owned by one party, and the party who has a share of the property shall compensate the other party equivalent to half of the value of the property.

5) For the breeding and planting industries that are jointly operated by the husband and wife in the current year, they should be reasonably divided or discounted in consideration of being conducive to the development of production and business management at the time of divorce. (6) The two parties have repaired, renovated, demolished and built the house owned by one party before the marriage, and the property rights have not been changed at the time of divorce, and the share of the multiplication part belonging to the other party shall be compensated by the owner of the house at a discounted price. (7) In the case of divorce, if the marriage has not been long, or the other party's life is difficult due to the request for property.

It can be returned as appropriate. Where it is difficult to determine whether the nature of the property obtained is a request or a gift, it may be handled as a gift. (8) A house jointly owned by a husband and wife that is not suitable for partition shall be divided among one party according to the housing situation of both parties and the principle of taking care of and raising children or the party who is not at fault.

The party who has been allotted the house shall compensate the other party equal to half the value of the house. The woman should be taken care of when both parties are on the same terms. (9) If the hidden intellectual property rights owned by one party at the time of divorce have not yet obtained economic benefits, when dividing the joint property of the husband and wife, the other party shall be given appropriate consideration according to the specific circumstances.

10) Where personal property before marriage is naturally damaged, consumed, or lost in the common life after marriage, and one party requests compensation with the joint property of the husband and wife at the time of divorce, it will not be supported.

The so-called "sham divorce" means that in order to meet a certain need of one or both parties, the husband and wife agree to go through the divorce procedures, and at the same time agree to go through the remarriage procedures after the goal is achieved. However, after the divorce of the parties, one party repents and does not go through the remarriage procedures, resulting in disputes over marital relations, child support, and property division. There are many reasons for the occurrence of fake divorces, some of which are for children to go to school and settle down; some to evade family planning policies; Some are to avoid supporting the elderly; There are also for the purpose of dividing the house in the unit; There are also those who go through the procedures for Li Chongdong to go abroad, which is more convenient.

In some cases, in order to achieve the goal of divorcing the other party, one party fabricates various reasons for divorce to induce the other party to "take the bait", and after the other party takes the bait, he refuses to go through the remarriage procedures, causing the other party to be hurt in terms of feelings or damage in the division of property. In the case of divorce by agreement, the marriage registration authority can only apply for cancellation of registration, but as long as there is no fault on the part of the marriage registration authority in the process of divorce registration, the marriage registration authority will not revoke the registration. What are the circumstances that are the fault of the marriage registration authority?

For example, one of the parties to the divorce registration is a person with no capacity for civil conduct or a person with limited capacity; One of the parties to the divorce did not go through the divorce formalities in person; The parties have not reached a divorce agreement. For mediation divorce, only those who violate the mediation procedure can apply to the court for a retrial.

What are the circumstances in which the mediation process is unlawful? For example, one of the parties has not signed the mediation statement.

Only by revoking the mediation agreement of the divorce through the retrial procedure can the sham marriage be invalidated. Where the court decides to divorce, the divorce judgment shall also be revoked through the retrial procedure. The conditions for the revocation of a sham divorce are very strict, and not all cases that the parties consider to be a sham divorce can be revoked, depending on whether the divorce procedure is illegal or not.

Therefore, we advise those who are preparing for a fake divorce not to ruin their lifelong happiness for the sake of temporary gain. Many fake divorces between couples are actually for some other things, the common one is to be able to buy a property under the policy, but in fact, such behavior is very dangerous. Although the husband and wife have no intention of divorcing, in fact, as long as the divorce procedures are completed, the marriage relationship between the two parties will be dissolved, and those who want to become a legal couple in the future need to go through the remarriage procedures.

Marriage is a lifelong event, and most people are very cautious. Couples with normal emotional life want to dissolve their marital relationship, subjectively most of them are for the purpose of seeking improper benefits. Through the analysis of the above sham divorce cases, according to different motives and purposes, the reasons for "sham divorce" can be roughly summarized as follows:

1) Transfer of common property for the purpose of debt evasion. One of the spouses owes heavy debts due to poor production and management, or long-term low income and high consumption. In the face of the creditor's recovery, in order to repay the debt, he quickly divorced his spouse, and when dividing the joint property of the husband and wife, the rights and obligations in the content of the agreement were obviously unequal, and the property belonged to the spouse, and he was alone, and his whereabouts were uncertain after the divorce.

The creditor finds it, and the debtor is "empty-handed", so that the creditor has no choice, and even if the lawsuit is brought to the court, it is difficult to enforce it after winning the lawsuit.

2) Evading responsibility and resisting compensation. One of the spouses in a "sham divorce" is the person responsible for the tort, and the victim has suffered huge economic losses due to the major tort. In order to shirk the legal responsibility that should be borne in the future, the tortfeasor on the one hand negotiates with the victim and delays the time for the victim to file a lawsuit in the court, and on the other hand, he steps up the divorce registration formalities and confirms the property rights to the spouse who will not be liable for compensation in the future, creating the false impression that the tortfeasor is unable to compensate.

3) Fraudulently obtaining compensation for house demolition. In the process of old city renovation and urban expansion, some residents in the old city or suburbs need to be demolished and resettled. Since the compensation policy for demolition and relocation takes care of the houseless households, even part of the compensation is paid on a household-by-household basis.

As a result, after learning the news of the demolition, some households urgently divorced the husband and wife in order to obtain more compensation or housing resettlement area, or the house was owned by one party, or one household was divided into two households, and illegal benefits were defrauded.

4) Evading policies and unplanned births. The practice of family planning is China's basic national policy and the obligation of every citizen. But some people are influenced by old ideas such as having more children and more blessings, and preferring sons over daughters, and always try to have more children and more children.

In order to achieve the purpose of superbirth, after the woman became pregnant, she went through the divorce procedures on leave, and then resumed the marriage after the child was born.

5) Occupy more homesteads. According to the relevant regulations of the land management department, there is a certain limit on the usable area of each urban resident's grandson's first house, otherwise, the excess part will be transferred by the relevant departments to others, or a high land use fee will be levied.

In practice, there are also some couples who "fake divorce" for reasons such as defrauding the subsistence allowance and going abroad.