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Chapter 8 Questions and Answers about Marriage and Inheritance (7)
Plaintiff Liang Nv and defendant Zhang Nan registered their marriage in 1997. After marriage, they raised funds to build a house and rent a house to operate a children's clothing store.Due to emotional discord, the two parties signed a divorce agreement on September 2006, 9, stipulating that the two parties would divorce voluntarily, that one set of housing would be owned by the defendant Zhang Nan, and the plaintiff Liang Nv would own the children's clothing store.Later, because the defendant refused to go through divorce registration, the plaintiff went to the court and requested to divorce the defendant and divide the property according to the divorce agreement.After the trial, the court found that the plaintiff and the defendant met the conditions for divorce, and decided to grant the divorce. At the same time, it held that there was no fraud or coercion when the plaintiff and the defendant signed the divorce agreement, and the terms of the agreement on property division were legally binding on the plaintiff and the defendant. Therefore, the property between the plaintiff and the defendant should be divided according to the divorce agreement.

Analysis according to law
Divorce agreement as a kind of documentary evidence, the characteristics and issues that should be paid attention to in the application of evidence are as follows:
Documentary evidence refers to written materials that prove the truth of a case with the contents and meanings recorded or expressed in words, symbols, and pictures.Documentary evidence is widely used in divorce proceedings.For example: marriage certificate, notarial deed, letter of guarantee, will, IOU, love letter, etc.In the process of representing the case, we found that the problems that are prone to appear in the documentary evidence are as follows:

1. The form of the documentary evidence is flawed.For example, marriage certificates, some parties’ marriage certificates were processed through the relationship between relatives and friends, and the parties were not present in person; or, the marriage certificates were bought with money at all, and have no legal effect at all.In this way, a series of problems will arise when dealing with divorce cases.

2. The content of the documentary evidence is flawed, even major flaws.Like a divorce agreement.According to general regulations, a divorce agreement should include three items: first, the agreement of the husband and wife to divorce; second, the agreement on the division of property; and third, the agreement on child custody.The content of the agreement should be clear, specific and operable.However, the parties often fail to pay attention to the root of the problem, neglecting the integrity and operability of the basic content, resulting in the invalidation of the agreement.For example, some divorce agreements write on the issue of property: "The joint property of the husband and wife is half of each person."This writing seems to be very specific and clear, but in fact there are many problems.For example, what is the joint property of the husband and wife?How much money are there in bank passbooks?How to divide furniture and electrical appliances?It can't be half of one person!It's just written in such a simple and general way. If one party deliberately omits something, it is difficult to investigate the responsibility for deliberately concealing property according to the relevant provisions of the Marriage Law.For another example, some parties agree that "if one party is unfaithful to the other party, all common property shall be owned by the other party."So, what is "infidelity"?If the standard for dividing "disloyalty" is a vague concept, it may be that the clause is invalid due to unclear agreement, and the wrong party cannot receive due punishment, etc.

Therefore, when applying documentary evidence, attention should be paid to the fact that the submitted documentary evidence forms a chain with other evidence to prove the facts to be proved together.For example, the woman wanted to prove that the man had a tryst with a third party on the night of February 2, but the man lied that he was on a business trip in Beijing. The current documentary evidence includes:

1. The man’s ticket from the Shanghai Johnson & Johnson Taxi Company at 2:14 p.m. on February 9 proves that the man was in Shanghai that night, not Beijing;
2. The party statement submitted by the woman proves that when the man called the man at 10 o'clock in the evening that day, the man was very impatient and was eager to hang up the phone on the grounds that the mobile phone was running out of power;
3. The testimony of the woman’s colleague, proving that the man was seen together with a woman in a bar in Shanghai at around 8 o’clock that night;
4. The mobile phone recording submitted by the woman on February 2, proving that the man still lied to her that she was in Beijing the next day;

5. The woman’s colleague testified that she called the man’s unit on February 2, and the man answered the phone, proving that the man was at the unit at that time;
6. The testimony of the woman’s parents, proving that on February 2, the woman’s parents also heard the man say that he was going to Beijing for a business trip;

7. An accommodation invoice from a certain hotel, proving that the man stayed here on the night of February 2;

8. The recording of a lady at the front desk of a certain hotel proves that on the evening of February 2, the man entered the hotel room with a woman at the same time.

Among the above evidences, it is obviously not sufficient to prove that the man has an ambiguous relationship with other women only by the first documentary evidence, that is, the taxi ticket at 2:14 p.m. on February 9, and the seventh evidence, the accommodation invoice. , but if it forms a chain of evidence together with other evidence, the probative force will be greatly increased, and the probability of the court's acceptance will also be greatly enhanced.

tips

The divorce agreement is a substantive document for registered divorce (divorce by agreement). Both parties applying for registered divorce must make it carefully, and it will be legally effective after signed by both parties.

A divorce agreement should contain the following:
1. A registered divorce is an expression of the true intentions of both parties;

2. Who does the child live with, and the cost, payment method and time limit that the party who does not live with the child should bear for the child's upbringing;
3. Division of common property (amount and value attributed to each party with list attached);

4. The enjoyment and repayment of joint claims and debts;

5. Solutions to housing problems;
6. The method and time limit of financial assistance to the party in difficulty;
7. The method of implementing the visitation rights of the party who does not live with the children and the obligation of the other party to assist;

8. Other matters that need to be specified in the agreement;

9. Signatures (seals or fingerprints) of both parties;
10. The time when the divorce agreement was prepared.

24. How to collect evidence of bigamy by one of the spouses?
Plaintiff: Ms. Zhang.

Defendant: Feng Nan.

The plaintiff, Ms. Zhang, claimed that: During the 1989 years from the beginning of 2004 to the end of 15, Feng Nan and He Nv first lived together outside, and later lived together as husband and wife in the dormitory of Feng Nan’s work unit. A daughter was born in October 1989, and a son was born in October 10. For more than ten years, colleagues in Feng Nan's work unit thought that this woman was Feng Nan's legal wife.When Zhang Nv found out about the incident, Feng Nan and He Nv jointly launched a tit-for-tat counterattack against Zhang Nv. It was said that Ms. Zhang ruined her reputation and asked the discipline inspection department to punish Ms. Zhang; on the other hand, Mr. Feng accused Ms. Zhang of "out of an unhealthy state of mind, groundless guesses, fabricated problems with her life style out of thin air, through phone calls and writing letter going around to ruin its reputation", etc.

Ms. Zhang believes that Feng Nan's behavior has caused great physical and psychological harm to herself, and asks the people's court to dissolve her marriage relationship with Feng Nan, and Feng Nan should compensate her for the loss of 50 yuan.The defendant, Feng Nan, argued that he had never had an extraordinary relationship with others, let alone lived together in the name of husband and wife with other opposite sexes.

In the lawsuit, the list of evidence materials submitted by the plaintiff, Ms. Zhang, to the court and its objects of proof:
([-]) The plaintiff Ms. Zhang’s own statement on what happened (original), proving the fact that Feng Nan and others lived together in the name of husband and wife for more than ten years and the resulting spiritual and material losses to her;

([-]) The witness testimony of defendant Feng Nan’s colleague Zhang (original), proving the fact that defendant Feng Nan has been living with He Nv for many years in the dormitory assigned to Feng Nan by the unit long ago;

(1985) The witness statement (original) of Feng Nan’s high school classmate Ye Mou about her cohabitation with Feng Nan for several months in [-] (original), proving that Feng Nan likes to promiscuously;

([-]) A personal negative of He Nv found from the defendant Feng Nan submitted by the plaintiff, Ms. Zhang (original), proving that the relationship between Feng Nan and He Nv is extraordinary;
(2001) The witness statement (original) of Ms. Zhang’s colleague, Mr. Chen, proving that Mr. Feng went to his unit to meet Ms. Zhang’s leader in April and May 4, saying that Ms. Zhang had tarnished his reputation and demanded Ms. Zhang’s The situation of the leader's punishment of Ms. Zhang;
([-]) A letter (original) submitted by the plaintiff, Ms. Zhang, written by Ms. He, saying Ms. Zhang broke up other people's families (original), proving that Ms. He violated her rights against her;
([-]) The report (original) on the property of the defendant Feng Nan submitted by the plaintiff, Ms. Zhang, to the People's Court, proving that the defendant Feng Nan owns a large amount of property and has considerable resources to make corresponding compensation to him.

The final judgment of the court is as follows:
(1) The plaintiff, Ms. Zhang, and the defendant, Feng Nan, are granted a divorce.

(2) The defendant, Feng Nan, compensated the plaintiff, Zhang, for mental damages of 5 yuan.

Analysis according to law
In a lawsuit for divorce damages due to bigamy, the most important thing is to prove the fact of bigamy. Whichever party can effectively prove or disprove the truth or falsehood of the essential fact or the truth is unclear, can be placed in the lawsuit. Advantage.

For the claimant of damages, he must provide evidence to prove that the party at fault has obtained marriage registration with another person of the opposite sex or obtained marriage registration through illegal means or cohabited in the name of husband and wife.It is relatively simple for the former to prove the fact of bigamy. He only needs to go to the marriage registration management department to check the marriage registration to achieve his goal, and the author will not elaborate here.When the spouse at fault and another opposite sex do not establish legal bigamy, but live together in the name of husband and wife, the claimant for damages must proceed to prove two facts.One is to prove that the spouse at fault is cohabiting with other opposite sexes.According to Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (3), cohabitation refers to continuous and stable cohabitation with the opposite sex outside of marriage, and occasional sexual behavior or extramarital affairs do not constitute cohabitation Ascertainment of facts.The second is to prove that the spouse at fault is in the name of husband and wife when cohabiting with other opposite sexes, that is, they are openly called husband and wife, and the people around them also think they are husband and wife.In this case, the perpetrator has the intention of establishing a husband and wife relationship with other opposite sexes.The so-called continuous and stable cohabitation behavior must have a relatively long time requirement.As for how long, the law does not specify.In judicial practice, it is generally believed that living together under one roof for more than [-] months without interruption can be considered as continuous and stable co-living as recognized in judicial interpretations.It is not easy to collect the evidence required to prove the fact of such continuous cohabitation.In practice, there are many ways and means to prove the relevant facts more effectively, but in a specific case, there may not be enough ways and means for the parties to find and use.In proving the fact of bigamy in a bigamy case, generally speaking, witness testimony is the most effective proof of relevant facts and valid evidence.We should know that human knowledge is the best way to grasp the general facts in a certain period of time, and specific physical evidence, documentary evidence and other types of evidence may not be as effective and sufficient as witness testimony to prove its continuity and long-term nature.Therefore, in proving the essential facts of bigamy in this case, the plaintiff sought the testimony of witnesses who knew the fact that the spouse at fault had cohabited with other opposite sexes in the name of husband and wife.In addition, the parties should not be too negligent in the proof of other essential facts.The parties in this case did not claim compensation for material damages in the lawsuit. Therefore, the essential fact proved by the plaintiff in this case is mainly the fact that the spouse of the wrong party lives with other opposite sexes in the name of husband and wife.

tips

For de facto marriage, the "Supreme People's Court (Several Opinions on People's Court Trial of Cases of Cohabitation in the Name of Husband and Wife Without Marriage Registration)" issued on December 1989, 12, based on the reasons for the formation of such "marriage" relationship and the circumstances of the case The specific situation is complicated. In order to protect the legitimate rights and interests of women and children, help stabilize marriage and family relations, and maintain stability and unity, it is in line with reality to conditionally recognize their de facto marriage relationship within a certain period of time. Several stages have been drawn above: First, before the implementation of the "Marriage Registration Measures" on March 13, 1986, people lived together in the name of husband and wife without going through the marriage registration procedures. The legal conditions for marriage can be identified as a de facto marriage relationship; the second is that after the implementation of the "Marriage Registration Measures" on March 3, 15, people live together in the name of husband and wife without going through the marriage registration procedures. Both parties meet the legal requirements for marriage and can be identified as a de facto marriage relationship; the third is that since February 1986, 3, the "Regulations on the Administration of Marriage Registration" issued by the Ministry of Civil Affairs of the People's Republic of China came into effect, living together in the name of husband and wife without marriage registration If so, they will be treated as illegal cohabitation.If both a man and a woman meet the essential requirements for marriage, the people's court shall inform them to make up the marriage registration before the case is accepted; if the marriage registration is not done up, it shall be treated as the termination of the cohabitation relationship.

25. How to prove that the relationship between the parties is an invalid marriage?

Plaintiff: Ms. Li.

Defendant: Yang Nan.

The plaintiff stated that: On December 1975, 12, the plaintiff, Li Nu, had her father passed away and her mother forced her to die, and her half-brother, the defendant Yang Nan, drank wine and lived together, and went through the marriage registration procedures.After living together, they gave birth to two sons and a daughter. For 11 years, the plaintiff and the defendant have been under the control of their mother, and out of respect for the elderly, they dare not have other thoughts.It was not until the mother passed away in 30 that the plaintiff mustered up the courage to consult a lawyer before deciding to dissolve this embarrassing marriage.Therefore, according to the law, he appealed to the court to declare his marriage with Yang Nan invalid, and appealed to the court to order the youngest son to be brought up by him, and half of the property belonged to the plaintiff.

In the lawsuit, the list of evidential materials submitted by the plaintiff to the court and its objects of proof:

([-]) The plaintiff's statement to the court that the defendant and the plaintiff are half-brothers and sisters (original).Prove that there is a collateral blood relationship within three generations between the two parties, so the marriage relationship between the plaintiff and the defendant is an invalid marriage;

([-]) The plaintiff's statement on the process of marrying the defendant (original).It proves that the marriage of the plaintiff and the defendant was the result of the coercion of the plaintiff and the defendant when the economy was extremely difficult at that time.The brother-sister marriage was to avoid the possibility of the defendant being "bare", which was completely against the plaintiff's wishes;

([-]) Marriage certificate and family register (original).Prove the marital status and family status of the plaintiff and the defendant;
([-]) The certificate issued by the village committee and the witness statement (original) of Liu Dajian, director of the village committee, on the marital and family status of the plaintiff and the defendant.To prove the half-blood relationship between the defendant and the plaintiff, as well as the status of children and property;
([-]) The witness testimony of Yang Da (the plaintiff's cousin) about the brother-sister relationship between the defendant and the plaintiff (original).Prove that the parties have a collateral blood relationship within three generations;
([-]) The witness testimony of Yang Er (the defendant's cousin) about the circumstances of the original and defendant's marriage (original copy).It proves that the party's marriage was indeed arranged by his mother. At that time, the relatives of both the plaintiff and the defendant opposed it. However, the plaintiff and the defendant lived with their mother, and they had to let it go because they could not provide financial help.

Finally, the court ruled that the marriage between the plaintiff Li Nv and the defendant Yang Nan was invalid and invalid from the beginning.

Analysis according to law
my country's new "Marriage Law" prohibits the scope of blood relatives who marry, including the following two types of relatives:

1. Direct blood relatives.Including parents and children, grandparents and grandchildren, maternal grandparents and grandchildren, etc.Regardless of relatives and algebra, marriage is prohibited between immediate family members.Adoptive parents and adopted children, and stepparents and stepchildren who form a fostering and educational relationship are all legal fictional (that is, hypothetical) direct blood relatives. Although there is no blood relationship between them, they are also included in the scope of prohibited marriages based on ethical and moral concepts.

2. Collateral blood relatives within three generations.Blood relatives who are born to the same parents or the same grandparents or maternal grandparents.The scope of collateral blood relatives within three generations other than direct blood relatives includes: (1) brothers and sisters from the same parents, including full-blood brothers and sisters of the same father and mother, and half-blood brothers and sisters of the same father or half-mother . (2) Uncles, uncles and nieces, aunts and nephews, uncles and nieces, aunts and nephews who are the same origin as grandparents or maternal grandparents. (3) Cousins ​​and aunts of the same generation who are derived from grandparents, or uncles and cousins ​​of the same generation who are derived from maternal grandparents.

In accordance with the general rule of distribution of the burden of proof of "whoever advocates, who proves", the applicant should apply to the court to declare that the marriage that has been registered as a consanguineous marriage is invalid, and the applicant should provide evidence for the existence of any of the above-mentioned relatives between the parties to the marriage, and To be proved.The general rule for the distribution of the burden of proof in the lawsuit for the declaration of the nullity of the marriage is that the applicant shall provide proof.The applicant here may be a party to an invalid marriage or a close relative of the party.There is no difference in the distribution of the burden of proof for a party or a close relative of the party applying for annulment of marriage.Only on the issue of property division and child support after the marriage is declared invalid, in view of the identity and personal experience of child support and property division, the child support and property division caused by the party's close relatives applying for annulment of marriage should still be handled by the The parties to the invalid marriage shall provide evidence and prove it.

tips

How is the property of an invalid marriage divided?According to the law, in an invalid or revoked marriage, if there is no evidence to prove that the property acquired during the cohabitation period is owned by one party, it shall be handled as joint ownership. The innocent party is looked after in judgment.

26. In marriage cases, what is self-admission?
(End of this chapter)