According to Article 10 of the Interpretation of Marriage Law (III), in the division of divorced property, the amount paid by one spouse to repay the loan and the corresponding property appreciation should be considered, and the party registering property rights should compensate the other party according to the principle of taking care of children and women's rights and interests as stipulated in the first paragraph of Article 39 of the Marriage Law.
In divorce cases, both husband and wife handle the division of property.
Article 19 of the Marriage Law: Husband and wife may agree that the property acquired during the marriage relationship and the property before marriage belong to themselves, all or part of it, and part of it. The agreement shall be in writing. Where there is no agreement or the agreement is unclear, the provisions of Articles 17 and 18 of this Law shall apply.
Article 17 The following property acquired by husband and wife during the marriage relationship shall be jointly owned by husband and wife: (1) wages and bonuses; (2) Income from production and operation; (3) Income from intellectual property rights; (4) Inherited or donated property, except as provided for in Item 3 of Article 18 of this Law; (five) other property that should be owned by * * *. Husband and wife have equal rights to dispose of all property.
Article 18 In any of the following circumstances, it shall be the property of one of the spouses: (1) the pre-marital property of one of the spouses; (2) Medical expenses, living allowance for the disabled, etc. Obtained by one party due to physical injury; (3) Property determined to belong only to the husband or wife in the will or gift contract; (4) Daily necessities used exclusively by one party; (five) other property that should be owned by one party.
How to divide the joint property of legal husband and wife when divorced?
Article 17 of the Marriage Law clearly stipulates: "The following property acquired by husband and wife during the marriage relationship shall be jointly owned by husband and wife: (1) wages and bonuses; (2) Income from production and operation; (3) Income from intellectual property rights; (4) Inherited or donated property, except as provided for in Item 3 of Article 18 of this Law; (five) other property that should be owned by * * * "; Specifically, the scope of marital property includes:
(1), salary and bonus. "Wage" refers to all kinds of labor remuneration calculated according to the national statistics of the total on-the-job wages, including standard wages, bonuses, allowances and subsidies with prescribed standards. "Bonus" refers to a certain amount of monetary rewards given by the state, government and other authoritative institutions to specific subjects who have made special contributions or achieved excellent results, such as athletes' ranking awards and scientific research achievement awards. These bonuses should be included in the joint property of husband and wife.
(2) Income from production and operation. Income from production and operation refers to the income obtained by citizens engaged in production and operation activities within the scope permitted by law. The new marriage law strengthens the protection of personal property, involving the ownership of the income from the investment and operation of husband and wife's personal property. The legal marital property system in China is that the income after marriage is the same, so if there is no legal agreement, the income after marriage (including personal investment income) should be the joint property of husband and wife.
(3) Income from intellectual property rights
Intellectual property rights are people's exclusive rights to their intellectual achievements according to law. Although intellectual property rights are intangible, they are all "real rights with rights as the subject matter" that can bring wealth, so in the current divorce cases, the intellectual property rights involved can also be divided as husband and wife property. But this does not mean that all the rights in intellectual property rights can be enjoyed by couples. Because intellectual property rights are based on the results of people's intellectual creation, starting from the principle of fairness, we should take care of the rights and interests of the labor party. In addition, from the perspective of giving full play to the social and economic benefits of intellectual property rights, protecting the integrity of intellectual property rights, the order in the field of intellectual property rights, and being conducive to economic development, the party who has not paid intellectual labor can only enjoy the right to divide the actually obtained property according to intellectual property rights. As for personal rights, performance rights, broadcasting rights, distribution rights, adaptation rights, translation rights, annotation rights and other rights. In copyright, such as the right to apply for a patent, the right to use it, the right to sell it, the right to use it in trademark rights, and the right to prohibit others from using it. Can't be divided into husband and wife in the patent right. And when dividing the property, the compensation for the party who has not paid intellectual labor should be paid in one lump sum.
(4) Inheritance or gift of property. The property acquired by one spouse as a result of inheritance or donation is the common property of husband and wife, but if the decedent or donor can clearly belong to only one spouse, the law protects the right to dispose of private property. This special designation has legal effect and is protected by law.
(5) Income from investment by one party with personal property. The income obtained by one party investing in personal property refers to the material benefits obtained by the husband or wife investing in personal property during the existence of the husband-wife relationship. The income here should refer to fruit. Personal property here refers to the personal property of husband and wife before marriage and also refers to the personal property of husband and wife after marriage. Investment behavior may occur before marriage or after marriage. The income from one party's investment in personal property must be the actual income obtained during the existence of the husband-wife relationship, excluding the expected income.
(6) Housing subsidies, housing accumulation funds, endowment insurance and bankruptcy resettlement subsidies actually obtained or should be obtained by both men and women. From the perspective of China's labor law, the above provisions are closely related to the labor relations and wages of workers. In view of this, these four items should all belong to wage income. It is a supplementary form of workers' wages. Here, the terms "actually obtained" and "should obtained" are also time-limited, that is, the corresponding rights have been "actually obtained" and "should obtained" during the existence of the relationship between husband and wife. That is, the right has been formed, and when it is handed over does not affect the right.
(7) the determination of the land use right obtained by one party before marriage. Land use rights can be sold, exchanged, donated, leased, mortgaged and inherited according to law under legal conditions, and all rights in land and land use rights have become important material wealth owned by individual citizens to a certain extent. The land use right obtained by one party before marriage shall be recognized as personal property in principle. In China, real estate and real estate (land use right) are managed by two administrative departments, and their values can also be expressed independently. If one party obtains the land use right before marriage and builds a house on the land after marriage, it should pay attention to separating the land use right value from the house value when dividing the real estate. In addition, the value of one party's land use right before marriage has increased when the property is divided in divorce, and this increased value should be recognized as the joint property of husband and wife. The reason is that marital property is formed with the establishment of marital relationship. The labor income and property purchased by one or both spouses, the property inherited or donated by one or both spouses and other lawful income during the existence of the relationship between husband and wife shall be regarded as the common property of husband and wife. The value-added part of the land use right after marriage can be regarded as a kind of interest generated by the land value during the existence of the relationship between husband and wife and a kind of legal income, so it should be regarded as the common property of husband and wife and owned by both parties.
(8) In the case of shares, husband and wife own the same property. At present, people's courts are more and more involved in stock ownership disputes in divorce cases. The settlement of such disputes should be mainly determined by the source of funds for buying stocks and the nature of the stocks themselves. If one of the husband and wife or the * * * shares contributed by the husband and wife shall be recognized as the joint property of the husband and wife. However, in real life, most of the time, family members contribute to buy stocks. How to identify the ownership of stocks? At present, there are two kinds of shares issued in China: employee internal shares and social public shares. For the shares held by employees in joint-stock enterprises that do not publicly issue shares to the public, they can be regarded as the joint property of husband and wife when dividing the property, because not only the internal shares of employees are registered, but also they cannot be transferred to anyone outside the enterprise, and such shares often have the welfare nature of low risk and high income. If there is an equity dispute between husband and wife and other family members, the relationship between them can be regarded as a loan relationship and handled separately. If they buy social public shares, which can be transferred and traded, then the nature of such shares should be recognized as family property, and each party should divide them according to the amount of capital contribution.
(nine) other property that should be owned by * * *. China's marriage law adopts a combination of enumeration and generalization, which avoids the incomplete provisions on the same property of husband and wife. When dealing with divorce disputes, we should make a concrete analysis of the property, fully consider the source of the property, and comprehensively determine the time of acquisition, the legal property system of marriage and other factors to safeguard the legitimate rights and interests of both husband and wife.