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How should a de facto marriage be divorced
Time:2025-08-28 Views:1269
If both parties in a factual marriage want to divorce, they must file a lawsuit in court. It is necessary to provide relevant evidence of when both parties started cohabiting, so that the court can legally determine whether it constitutes a factual marriage, the starting time of the marital relationship, and further determine which belongs to the common property within the marriage, and divide it according to law. If it cannot be proven that both parties began living together in the name of husband and wife before February 1, 1994, it is usually difficult to determine a factual marriage. At this point, the court will require both parties to reapply for marriage registration, and after reapplying, it will be processed according to the divorce procedure; Those who do not make up for it will be treated as terminating the cohabitation relationship.
According to the Supreme People's Court's regulations on application<中华人民共和国婚姻法>According to Article 5 of the Interpretation of Several Issues, if a man and a woman who live together in the name of husband and wife without registering their marriage in accordance with Article 8 of the Marriage Law file a lawsuit for divorce in a people's court, they shall be treated differently
（1） Before the implementation of the Marriage Registration Management Regulations by the Ministry of Civil Affairs on February 1, 1994, if both parties had already met the substantive requirements for marriage, they would be treated as a de facto marriage.
（2） After the promulgation and implementation of the Marriage Registration Management Regulations by the Ministry of Civil Affairs on February 1, 1994, if both parties meet the substantive requirements for marriage, the people's court shall inform them to apply for marriage registration before accepting the case; Those who have not completed the marriage registration shall be treated as terminating the cohabitation relationship.
Firstly, it is necessary to clarify whether the divorced couple is a de facto marriage. In China, marriages that were not registered before 1994 but lived together as husband and wife can only be called de facto marriages, while those after 1994 can only be called illegal cohabitation relationships. However, regardless of whether it is a de facto marriage or not, the rights of children born out of wedlock and those born in wedlock are the same. When divorcing or breaking up, parents can jointly negotiate and decide on the custody of their children. If the negotiation fails, they can file a lawsuit in court.
For those recognized as a de facto marriage relationship, the property during cohabitation shall be subject to the provisions of the Marriage Law on the marital property system. If there is no agreement, the common property of the spouses shall apply. If it is recognized as a cohabitation relationship, the income obtained from joint labor and the property purchased during the cohabitation period are general joint property. The property inherited or donated by both parties during this period is their personal property, and is the debt and credit formed by joint production and life, which shall be treated as joint debt and credit. Regardless of the type of relationship, if one party voluntarily gives property to the other party before cohabitation, it shall be treated as a gift relationship. The property demanded by one party from the other should be returned according to the length of cohabitation, the degree of fault of the other party, and the actual economic situation of both parties.
In summary, we know that when a man and a woman form a de facto marital relationship, if they want to divorce, they need to resolve it through legal action in court. The above is the full text of "How to Divorce a Factual Marriage" collected by the editor of Fanneng Law Firm for you. If you have any further questions about marriage law, please feel free to consult professional lawyers at Faneng Law Firm. Sichuan Faneng Law Firm is dedicated to serving you.