Reissued Marriage certificateA property obtained during cohabitation during cohabitation before is the joint property of the couple?
Cohabitation before re-applying a marriage certificate is divided into two situations: one is that both parties do not have the substantive requirements for marriage. If the legal age of marriage is not reached, the validity of the registration must not be recognized, and the property during cohabitation cannot be recognized as the joint property of the couple; the other is that both parties have the substantive requirements for marriage when they are cohabiting, but they have not received a marriage certificate. This is quite controversial:
The first view holds that Article 1049 of the Civil Code of stipulates that both parties are allowed to re-apply registration, the validity of the registration should be traced back to the cohabitation period when both parties have the substantive requirements for marriage, and the property during cohabitation should be handled as the joint property of the couple.
The second view holds that Article 1049 of the Civil Code clearly stipulates that "complete marriage registration means establishing a marriage relationship". If the act before reissue is recognized, it is equivalent to reissue the de facto marriage. my country has no longer recognized the de facto marriage since February 1994, and now it will be detrimental to maintain the marriage registration system, so the reissue effect cannot be retroactively. Property obtained before reissue a marriage certificate cannot be recognized as the joint property of the couple.
Research believes that Article 6 of the "Interpretation of the Supreme People's Court on the Application of Marriage and Family Section of the Civil Code of the People's Republic of China (I)" stipulates that if both men and women register for marriage in accordance with Article 1049 of the Civil Code, the validity of the marriage relationship starts from when both parties meet the substantive requirements for marriage stipulated in the Civil Code. Article 7 stipulates that if a man and a woman who has not completed marriage registration in accordance with Article 1049 of the Civil Code and who lives together in the name of a husband and wife file a lawsuit to request divorce, he shall be treated differently: (1) Before the promulgation and implementation of the Ministry of Civil Affairs' "H Marriage Registration Management Regulations " on February 1, 1994, both men and women have met the substantive requirements for marriage, they shall be treated as a factual marriage. (2) After the Ministry of Civil Affairs’ “Marriage Registration Management Regulations” was promulgated and implemented on February 1, 1994, if both men and women meet the substantive requirements for marriage, the people’s court shall inform them to re-issue marriage registration. If the marriage registration is not completed, the handling shall be carried out in accordance with Article 3 of this Interpretation.
Therefore, the effect of the marriage before reorganization is also recognized by law. For the property obtained by living together in the name of a couple, after re-registration, which has met the substantive requirements for marriage, the property obtained by living together in the name of a couple should be regarded as the joint property of the couple.
Source: Shandong High Law
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