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Factual marriage and illegal cohabitation relationship
Time:2025-09-01 Views:579
According to the current laws and judicial interpretations in China, couples who live together in the name of husband and wife without registering their marriage can be divided into two types: one is the de facto marriage relationship; The second is an illegal cohabitation relationship.
（1） De facto marriage
Factual marriage refers to the cohabitation of a man and a woman without a spouse who have not registered their marriage and live together in the name of husband and wife. The public also considers it a marital relationship and meets the substantive conditions for marriage in China. Factual marriage has the following characteristics: (1) Failure to register marriage in accordance with the law and lack the legal formal requirements for marriage; (2) Having purposefulness and openness, that is, both parties have the purpose of living together for life and openly live together in the name of husband and wife, which is also considered a marital relationship by the public, thus distinguishing it from temporary and concealed illegal sexual relationships such as adultery and cohabitation; (3) Meeting the substantive conditions for marriage, namely meeting the legal and prohibited conditions for marriage, thus distinguishing it from illegal cohabitation relationships.
According to the Several Opinions of the Supreme People's Court on the Trial of Cases of Cohabitation in the Name of Husband and Wife without Marriage Registration on November 21, 1989, meeting the statutory conditions includes the following two situations:
Firstly, before the implementation of the Marriage Registration Measures on March 15, 1986, if a couple cohabited in the name of husband and wife without completing the marriage registration procedures, one party filed a lawsuit for "divorce", and both parties met the substantive conditions for marriage at the time of filing, which can be recognized as a factual marriage relationship.
Secondly, after the implementation of the Marriage Registration Measures on March 15, 1986, and before the implementation of the Marriage Registration Management Regulations on February 1, 1994, if a couple cohabits in the name of husband and wife without marriage registration, one party may sue for "divorce". If both parties meet the substantive conditions for marriage at the time of cohabitation, it can be recognized as a factual marriage relationship.
（2） Illegal cohabitation relationship
Illegal cohabitation refers to a situation where both parties or one of them has a spouse who has not registered their marriage and does not live together in the name of husband and wife in a continuous and stable manner, or where both parties live together in the name of husband and wife without registering their marriage but do not meet the legal conditions for a de facto marriage. Article 1 of Interpretation (II) of the Marriage Law stipulates that if a party requests the termination of a cohabitation relationship, the people's court shall not accept it. If the cohabitation relationship requested to be terminated by the parties belongs to the situation of "cohabitation between a spouse and another person", or if the request to terminate cohabitation involves property division and child custody disputes, the people's court shall handle it in accordance with the law. This is because "cohabiting with a spouse" is a behavior explicitly prohibited by the Marriage Law. If the parties file a lawsuit to terminate this cohabitation relationship, the people's court should of course accept it and terminate the cohabitation relationship in accordance with the law. As for the cohabitation relationship between unmarried men and women, as it is not a legally protected social relationship, if the parties only request the termination of the cohabitation relationship in a lawsuit, the people's court should not accept it; If the parties bring a lawsuit regarding property division and child custody during cohabitation, the people's court shall accept it. This is because the property relationship and child custody relationship formed by the parties during cohabitation are civil legal relationships protected by law, and the people's court should provide protection in accordance with the law.
（3） Handling of de facto marital relationships and illegal cohabitation relationships
The handling of factual marriage relationships should follow the following principles: (1) factual marriage relationships have the effect of marriage. Where it is recognized as a factual marriage relationship, it is actually confirmed as a legal and valid marriage relationship, and the relationship between the two parties shall be governed by the provisions of the Marriage Law on the rights and obligations of husband and wife. (2) In the trial of factual marriage cases, if the parties withdraw the lawsuit, the validity of the marriage relationship shall be confirmed, and a ruling or judgment shall be issued to grant divorce. (3) When a factual marriage relationship divorces, the relevant provisions of Articles 36 to 42 of the Marriage Law shall apply to issues such as child custody, property division, and economic assistance to the party facing financial difficulties.
Since February 1st, 1994. After the implementation of the "Marriage Registration Management Regulations" by the Ministry of Civil Affairs of Japan, if a man and a woman who live together in the name of husband and wife without marriage registration meet the substantive conditions for marriage, they can obtain legal marriage effect after re registration. For those who have not completed the marriage registration, the principle for handling their illegal cohabitation relationship is as follows: (1) If it is confirmed through investigation that it is an illegal cohabitation relationship, a judgment should be made to terminate it uniformly. (2) After divorce, if both parties have not remarried, have not completed the procedures for remarriage registration, and live together in the name of husband and wife, and one party sues for "divorce", the illegal cohabitation relationship should generally be terminated. (3) When the people's court hears cases of illegal cohabitation, if it involves the custody of illegitimate children and the division of property, it should be resolved together. When dividing property, consideration should be given to the interests of women and children, taking into account the actual situation of the property and the degree of fault of both parties, and dividing it properly. When terminating an illegal cohabitation relationship, the income and property jointly acquired by both parties during the cohabitation period are generally treated as jointly owned property. During this period, the assets inherited and donated by both parties are generally treated as personal property. [page]
The people's court shall not accept cases of termination of cohabitation relationships, except for the cohabitation relationship requested by the parties to be terminated, which falls under the circumstances other than "cohabitation of a married person with another person" in Article 3, Article 12, and Article 46 of the Marriage Law; But for disputes involving property division and child custody, the people's court shall handle them in accordance with the law.
During cohabitation, if one party dies and the other party requests to inherit the deceased's estate, and it is determined to be a de facto marriage relationship, the spousal status can be handled in accordance with the relevant provisions of the Inheritance Law; If both parties meet the substantive conditions for marriage during cohabitation, and the other party completes the registration, they can claim inheritance rights as spouses; If it is determined to be an illegal cohabitation relationship and meets the requirements of Article 14 of the Inheritance Law, appropriate inheritance can be distributed to individuals other than the legal heirs based on the specific circumstances of mutual support. Sichuan Faneng Law Firm is dedicated to serving you.