[Recommended reading] I have lost my marriage and can no longer accept the lost gift

[The main text is 2488 characters, and the expected reading time is 7 minutes]

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There is a very famous paragraph on the vibrato

reporter: "Uncle, if your son marries a wife, how much gift do you think is appropriate?" Uncle

: "One million, right? If you have a trolley, how can you have a suite? If the conditions are good, buy a trolley for the old man, after all, it is not easy to raise such a big girl."

reporter: "How old is your son this year?"

At this time, the uncle showed a mysterious smile: "I don't have a son, two girls..."

Today's article, we do not comment on the social phenomenon of receiving gifts. Still returning to the profession, analyze the "problem of return of gifts" from a legal perspective. The nature of the

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betrothal gift The

betrothal gift is a dowry gift or dowry given to each other in marriage and love, and is one of the traditional Chinese marriage customs. From a legal point of view, gift giving refers to the gift of property, and it is a conditional gift, that is, the "concluded marriage" is taken as an additional condition for the act of giving the gift to take effect.

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Reasons for advocating the return of the dowry

In my daily work, I often receive legal advice on the return of the dowry. The parties who came to consult have almost some common characteristics in their marriages:

men and women have a weak emotional foundation

mostly get married because they don’t understand, and divorce because of understanding. Since there is a lack of understanding before marriage, why choose to get married? Some people are urged to marry by their parents because they are old, and they just get married after a simple blind date; some people are frustrated because they are broken in love, and they just find someone to marry; some people are forced by the economy and think they are looking for it. A better partner can improve life. So, finally took off the coat of "parents urging marriage, emotional frustration, and financial temptation", but did not find the core of marriage. The amount of the

gift is too high The amount of the

gift is too high, and the payer’s family can barely afford it. "Still motionless", "Three catties per ring", "Four pings and eight stables", "Six catties and six liang"...With the emergence of patterns in the form of the gift, the amount of the gift has risen all the way, and it seems that middle-class families are somewhat stretched. Not to mention those rural families that are relatively remote and backward. Many families have caught up with the youth of three generations, emptied the pockets of a family, and barely got their children's marriage. So netizens joked: So now, love is no longer in the hands of the old man, it belongs to the god of wealth. The weight of the bride price in everyone's mind can be imagined.

is not married, or the marriage time is too short.

doesn't need to say if you haven't gotten married, it's mainly because the young couple has been married for a short time, and the young couple are in disagreement and clamor for divorce. Even if the divorce is really due to emotional disagreement, the woman will be suspected of "fraudulent marriage" as long as she mentions the divorce. The so-called fraudulent marriage, no one will pursue the woman's deception, only think that the woman cheated the gift money. Therefore, how lively it is when giving a lottery gift is, how lively it is when asking for it.

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Circumstances in which the payer claims to return the betrothal gift

Circumstances in which the payer claims to return the betrothal gift can be roughly divided into the following five categories:

"1" has not gone through the marriage registration formalities; "Go through the marriage registration formalities, but have not lived together;

"4" has gone through the marriage registration formalities and have already lived together;

"5" paying the bride price causes difficulties in life.

In this regard, Article 10 of the "Judicial Interpretation of the Marriage Law (2)" stipulates three situations in which the bride price can be returned:

[Original Article]

If a party requests the return of the bride price paid in accordance with the custom, if it is found that the following circumstances, the people The court shall support:

(1) where both parties have not gone through the formalities for marriage registration;

(2) where both parties have gone through the formalities for marriage registration but do not live together;

(3) where the payment before marriage causes difficulties for the payer.

applies to the provisions of items (2) and (3) of the preceding paragraph, and the divorce of both parties shall be the condition.

This judicial interpretation clearly stipulates the “1”, “3”, and “5” mentioned in this article, but it does not go through the formalities for marriage registration but has lived together with the The two situations of "life" are not explained. Well, if it meets the aboveIn both cases, how should the judicial process deal with it?

has not gone through the formalities for marriage registration but has lived together

"The two parties have not gone through the marriage registration formalities" stipulated in Article 10, Paragraph 1, Item 1 of the Judicial Interpretation of the Marriage Law (2), which does not apply to situations where both parties have lived together; if they are not married If both men and women have indeed lived together but failed to go through the formalities of marriage registration, the payer requests the return of the gift. The people's court can determine whether to return and the specific amount of return based on the time spent living together, the amount of the gift, and local customs and habits. . (Extracted from "Civil Trial Guidance and Reference" No. 2 (Total No. 46), 2011, People's Court Press, Page 10)

has gone through the marriage registration formalities and has been living together

In fact, this situation is one A normal state of marriage. The reason why the party who paid the lottery still asked for the return of the lottery gift at the time of divorce was because the marriage was often not long. Judging from judicial practice experience, the court often thinks that although the two parties have not lived together for a long time, they are married and living together after all, and the party who pays the gift is not because of the payment of the gift and it is very difficult. Therefore, the court does not support the claim to return the gift. . (Excerpt from 10 typical cases of marriage and family disputes (Shandong) announced by the Supreme People’s Court: Liu and Feng’s marital property dispute)

At present, China’s marriage law does not make much provision on the issue of "beautiful gift payment and return". In addition to the provisions of Article 10 of the "Judicial Interpretation of the Marriage Law (2)", there are also the provisions of Article 19 of the "Several Specific Opinions on the People's Courts to Trial Divorce Cases and Handling of Property Division" issued by the Supreme People's Court in 1993:

【 The original article of the law]

obtains property through marriage relationship. In divorce, if the marriage is not long, or the other party’s life is difficult due to the request for property, it can be returned as appropriate;

is difficult to determine whether the nature of the property obtained is a request or a gift. Gift processing. After reading the above legal regulations,

attentive readers may have the following questions:

? 1: What is the standard of "difficulty in life" for the beneficiary who has difficulty in life due to the payment of the gift?

? 2: How long does the law "marry not long" mean?

? 3: If the law supports the return of the lottery, should it be returned in full or in part? If it is a partial return, what is the specific percentage that can be returned?

......

and such questions, no one can answer accurately. The circumstances of each case are different, the discretion of the judge is different, and the outcome of the case is necessarily different. In judicial practice, the litigation claiming the return of the betrothal gift is quite complicated, because in addition to the difficulty in determining the amount of the betrothal gift paid by , it is also difficult to comprehensively consider the faults of both the man and the woman, the local customs, and the beauties. Judges can make decisions based on the principles of " fairness," "equality," and "fault" , and other issues such as the actual use of the marriage relationship, the duration of the marriage relationship, and the affordability of the payer. Final judgment. Of course, in practice, most courts will try to avoid the escalation of conflicts by doing the ideological work of both men and women, and finally settle the case by mediation.

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