Lawyer Zhu Qunqun from Zhejiang Liqun Law Firm

【 Content Overview 】 It is a Chinese custom to offer a gift and retainer before marriage. However, in practice, a series of contradictions arising from the employment of gift and retainer funds are also increasing. There are a series of explanations on how to solve these contradictions in the Marriage Law and related interpretations. However, some explanations still have the problem of not prominent standards in practical operation, that is, weak operability. For example, in current divorce cases, there is no clear explanation or limitation on whether the dowry and dowry can be refunded after divorce, and how to determine the second item of Article 10 of the Interpretation of the Marriage Law, which states that "if both parties have completed marriage registration procedures but have not lived together", there is no clear explanation or limitation on how to determine "if they have not lived together". Therefore, the author believes that it is necessary to combine the actual situation and cannot make restrictive explanations, otherwise it is unfair, It can also breed new types of criminal behavior of cheating money through marriage.

【 Key Words 】 Gift, Divorce, Shared Life, Refund, Borrow Marriage, Claim Property

It is not only a traditional custom of the Chinese nation for the man to give a dowry during marriage, but it is still prevalent in today's era. A dowry, also known as a dowry, refers to the act of giving a certain amount of cash or financial support to a man or woman before marriage, in accordance with local customs, after the romantic relationship between the man and the woman has been basically established, to show their sincerity in entering into a marriage with the other party. The dowry has strict targeting and must be based on local customs and habits. It must be paid as a last resort in order to ultimately establish a marriage relationship, and it has obvious customs. This purposefulness, realism, and helplessness cannot be denied. As the price of paying the dowry, it itself contains two meanings: first, the other party agrees to get married; 2、 One party has the intention to borrow marriage and live together for a long time with the other party who pays the dowry. If, although marriage registration has been completed and dowry and dowry fees have been collected, the other party does not have the intention to live together with the paying party, it still violates the original intention of the paying party to pay dowry and dowry fees.

Should the gift money given before marriage be returned after divorce? At present, according to the interpretation of the Supreme People's Court on several issues concerning the application of the Marriage Law of the New Marriage Law (II) Article 10, if a party requests to return the betrothal gifts paid according to custom, the people's court should support it if it is found that the following circumstances exist: (I) Both parties have not gone through marriage registration procedures; （2） Both parties have gone through marriage registration procedures but have not yet lived together; （3） Premarital payment that causes difficulties for the payer's life. The application of the provisions of items (2) and (3) of the preceding paragraph shall be conditional on the divorce of both parties. It can be seen that the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the New Marriage Law, issued by the Supreme People's Court on December 25, 2003, has provided a legal basis for the courts to resolve a large number of marriage betrothal gifts disputes, and has changed the situation that courts cannot rely on in judging marriage betrothal gifts disputes in the past. However, in practice, when the court applied the above provisions to deal with specific marriage betrothal gifts disputes, it found that there were problems in the application, which directly affected the image of the court and the Seriousness of the law, and needed to be unified and standardized. For example, there are currently two opinions in judicial practice on how to determine the fact that both parties have already completed the marriage registration form but have not lived together in Article 10 (2) of this interpretation:

The first viewpoint holds that when deciding whether to return the dowry, the main basis for determining whether the parties have engaged in a marriage relationship and live together should be based on whether or not. After paying the dowry, if the marriage relationship has not been established, even if there is a long-term cohabitation relationship, the party receiving the dowry should still return the dowry. After paying the dowry, if the marriage registration has been completed and there is long-term uninterrupted living together, the dowry will not be returned in principle. The judicial interpretation makes this provision based on the usual practice of paying a dowry, registering for marriage, holding a wedding ceremony, and living together. This procedure is legally stipulated, that is, after the parties pay the dowry, the two parties do not register for marriage, let alone live together. Even if the marriage agreement is cancelled and the paying party fails to achieve the purpose of marrying the other party, the dowry should be returned.

In fact, after both parties register for marriage, based on social customs and ethical concepts, even if the marriage registration has been completed but the folk marriage ceremony has not yet been performed, the common people still do not consider the two parties to be a legitimate marital relationship. Therefore, most young people are forced by social public opinion to not live together frequently, and even do not live together before the marriage ceremony. If both parties have not yet lived together, they will have no experience of mutual assistance between husband and wife, nor too many bonds that connect them together. Their true sense of shared life is far from beginning. At this time, when both parties divorce, the dowry should be returned. There is no objection from the local courts to this point. For those who have already lived together (including long-term living together, intermittent living together, and living together for a short period of time), this view is considered to constitute living together. When one party requests the other party to return the dowry and dowry paid before marriage in the event of divorce, it shall be deemed registered and constitute living together in accordance with Article 10 (2) of the Interpretation of the Marriage Law, and the court shall reject it. [i] The author of this article believes that this viewpoint is actually a restrictive interpretation of Article 10 (2) of the Judicial Interpretation of Marriage Law, which violates the principle of fairness and is also a one-sided understanding and understanding of the legal provisions.

The second viewpoint holds that when deciding whether to return the dowry, the main basis should be based on whether the parties have entered into a marriage relationship and the length of time they have lived together. A dowry is a conditional gift that is given for the purpose of marriage. If the actual condition of marriage is not met, then these dowries can be retrieved. In essence, marriage requires both parties to have the willingness to live together, in addition to fulfilling legal procedures. If one party falsely applies for marriage registration with the other party in order to defraud them of their dowry or dowry, although both parties occasionally live together after registration, it cannot be considered as constituting the determination of "living together" in Interpretation 2 of the Marriage Law. Otherwise, it violates the principle of fairness. It is also easy for one party to achieve the purpose of defrauding property, which is not conducive to social harmony and doubts about marital stability. Therefore, this viewpoint holds that the so-called common life refers to a relatively long-term and stable life. Husband and wife life and economic life. If we only share a room once, we cannot simply consider it as living together. Intermittent co habitation or short-term co habitation cannot be considered as co habitation, unless one party can determine that there is actual income used for household expenses, and both parties have already formed a substantial co habitation. In current judicial practice, judges mostly hold a relatively lenient interpretation of this, as long as two people live together, it is considered to constitute a common life. Therefore, when the man requests a refund of the dowry or dowry upon divorce, the lawsuit request is rejected. The author believes that this explanation is significantly unfair. Marriage should be established on the basis of emotions. In addition to fulfilling the substantive and procedural requirements of the Marriage Law regarding marriage, both parties should also achieve the main purpose of marriage, which is to achieve a substantive marriage, and should not be limited to the simple procedural level of registration and residence. The ultimate purpose of paying dowry and dowry in folk customs is to hope that both parties can live together for a long time, support each other, take care of each other, and fulfill all the obligations that should be fulfilled as a couple, and enjoy all the rights that should be enjoyed as a couple. Therefore, the legal basis for the parties to request the return of the dowry is that, in a sense, we can view the marital relationship as a contractual relationship. During the period of love, both men and women belong to the offer and counter offer stages. From the time of engagement to the time of marriage registration, it can be seen as the acceptance stage, which is the stage of contract formation. It can be regarded as the effective stage of the contract after the marriage registration is completed and the Marriage certificate is obtained. From the perspective of a contract, the act of giving and receiving dowry occurs during the establishment stage of a marriage contract. Due to the act of giving and receiving dowry, the transition from the establishment stage to the effective stage of the marriage relationship is guaranteed to a certain extent. In the true sense of marriage, fulfilling the registration requirements stipulated by law is only the beginning. In the true essence of marriage, both parties should live together, support and take care of each other after registration.

We all know that the issue of returning dowry is not only a simple legal issue, but also a real social issue. Although there are various opinions on this issue, a thorough understanding of the relevant interpretations of marriage law will undoubtedly be more helpful in handling dowry disputes and resolving social conflicts. From a certain perspective, the author does not agree with the fulfillment of folk customs in the conclusion of marriage. The author believes that it is due to the old labor and injury to life and wealth, which can easily lead to social conflicts and is not conducive to social harmony. However, based on a series of current folk customs that should be fulfilled in the conclusion of marriage, the interpretation (2) of the Marriage Law expresses the following views on how to understand "living together":

1.The essential existence of shared life constitutes a substantial sense of shared life.

Based on social customs and ethical concepts, even those who have registered for marriage but have not yet performed the folk marriage ceremony still do not consider the two parties to be legitimate husband and wife relationships in the minds of ordinary people. Therefore, due to public opinion, most young people do not live together for a long time, but do not occasionally and intermittently live together before the marriage ceremony. To put it another way, the actual mutual life of both parties has not yet begun. In addition, in judicial practice, the following situations are often encountered: the parties have paid a dowry, registered for marriage, and held a wedding ceremony, but due to various reasons, the two parties have not lived together; Or, although living together, due to significant differences in personality between the two parties, coupled with difficulties in life, if the marriage is not long enough, they will sue for divorce; Or if after marriage, one party suffers from a physiological illness, resulting in both parties having only the name of husband and wife and no actual marital status, and the marriage time is not long, it is convenient for both parties to sue for divorce based on this. In the above situation, due to the payment of the dowry, the whole family has become heavily indebted and their lives are in dire straits. If the dowry is returned as appropriate, it is also conducive to alleviating conflicts and resolving disputes.

The author believes that the so-called joint life between spouses should refer to the process of preparing for the common life, fulfilling marital obligations, and enjoying marital rights for both parties. This process should be long-term, rather than short-term, occasional, and intermittent. In essence, living together is not only a reflection of the physiological and ethical values of marriage, but also an essential requirement of socialist marriage and family relationships. It is also necessary for establishing a new type of socialist family relationship and spiritual civilization. If we simply consider living together after registration, it is not in line with the true meaning of marriage in the Marriage Law, nor does it conform to the correct recognition of marital life by the public.

2. The willingness to live together in a true sense

The meaning in the Modern Chinese Dictionary is: desire; Wish. For example, respect one's own wishes. Tang Libai wrote a poem in "The Book was sent from Governor Shi Zhao of Dibin": "Who would like to value this thing?" Volume II of "King Wu's Attacking on Zhou Pinghua": "Know that the public is fishing on the shore, and wish that the public would observe." Xu Huaizhong's "Anecdotes of the West Line": "No matter what his consideration is, we should always respect his personal will." Marriage, as a special form of contract, should focus on consensus, That is to say, it should be based on the willingness of both parties to live together. It is combined on the basis of mutual agreement.

The basic principles of the Marriage Law emphasize freedom of marriage, which includes freedom of marriage and freedom of divorce. The author believes that the so-called freedom of marriage should include the freedom to live together. Although it is a new era and everything demands one's own wishes, it still cannot be ruled out that parents arrange marriages. Although this phenomenon is different from the parents' Arranged marriage under the old custom, at least the marriage between the two parties is not based on mutual trust, mutual support, and mutual willingness to live together. The union between men and women is often based on various reasons rather than emotional foundations. Therefore, although both parties live together, they do not have the intention to live together due to the lack of emotional foundation, which often leads to divorce shortly after their lives.

The author believes that it is inappropriate to simply consider living together as constituting a shared life. The so-called common life should first be based on the willingness to live together in terms of willpower, and then in terms of behavior, it should be living together. In our common saying, we eat and live together, have mutual marital rights, and bear mutual marital obligations; In terms of time form, there should be a desire for long-term life, and this desire comes from the heart and is generated under any external interference from me; From the perspective of willpower, there should be a willingness for both parties to live together.

3. Consider the true purpose of one party entering into a marriage

What is the purpose of marriage? Different countries and historical periods have different expressions. In ancient China, the purpose of marriage was always to "serve the ancestral temple at the top and inherit the descendants at the bottom"; Christian marriage, where the purpose of marriage is to provide children with upbringing and education, as well as mutual support and sexual comfort between spouses; The laws of modern countries have also made various provisions on the purpose of marriage. Although these 'purposes' are complex and diverse, through their superficial purposes, we can find that they share one thing in common, which is that they emphasize the need for both men and women in marriage to' live together '. This is not only the requirement of marriage for the subjective psychological state of the parties involved, but also the ideal meaning of marriage that has always been pursued by people.

The so-called "shared life" refers to living together, becoming members of the same family, and living in the same consumer community. In general, it also includes sexual activity between spouses and mutual respect and love between spouses. The term 'shared life' generally refers to 'shared spiritual life (mutual love and spiritual union), shared sexual life (physical union), and shared economic life (shared family and family).' This is a summary of the entire content of 'shared life'. Some scholars believe that in the history of marriage, the purpose of marriage has gone through "the purpose of breeding a race, the purpose of having legitimate children in charge of family affairs, and then the purpose of living together between men and women". [iii] In this process, the author believes that since marriage, whether for the purpose of "breeding a race" or "having legitimate children in charge of household affairs", there must be a common life. Therefore, living together should always be the purpose of marriage.

4. Conclusion

As the basic unit of society, the family plays an important role in maintaining social order and stability, promoting good social customs, and other aspects. Marriage is a historical concept that has emerged at a certain stage in human history. It is the institutional form in which men and women form spouses and form kinship groups. It is the only way to achieve human reproduction and an inevitable way for human society to continue.

Marriage should be established on the basis of harmony, and it objectively exists; Marriage is an act, a promise to the other half; A marital relationship represents a responsibility towards the other party; The true purpose of marriage is for both parties to live together based on their emotions. Marriage should be a joint combination and sustenance of spirit and material possessions. A marriage without emotional foundation, agreement, or willingness to live together is immoral and of low quality.

In summary, Article 10 (2) of the Interpretation of the Marriage Law states that "if both parties have completed the marriage registration procedures but have not yet lived together", we cannot make a narrow judgment based on the literal meaning. Instead, we should consider whether both parties have a substantial existence of a common life, whether both parties have a genuine intention to live together, and whether there is a true purpose for concluding a marriage. At the same time, judgments should also be made based on the principle of fairness and reasonableness.

We all know that the principle of fairness refers to the Value judgment standard for balancing interests in civil activities, and it is also a judicial principle, that is, the judicial decisions of judges should be fair and reasonable, and when the law lacks provisions, reasonable decisions should be made according to the principle of fairness. It is not difficult to see the specific application of the principle of fairness, which must be based on the specific application of the principle of voluntariness as the foundation and premise. If the interests between the parties are imbalanced and the product of voluntary autonomy, it cannot be considered as violating fairness.

[i] How to Understand the Return of Lottery Gifts Given by Both Parties at the Time of Engagement, Song Feng, P2

[ii] "How to Understand the Return of Betrothal Gifts Given by Both Parties at the Time of Engagement", Song Feng, P3

[iii] Hu Changqing, Chinese Civil Law Theory of Kinship [M], Taipei: Commercial Press, 1977