CHINA Law and Practice Contributed by: Hongyu Liu, Shuaifeng Wang, Dongda Wei and Chen Rong, King & Capital Law Firm
2.4 Spousal Maintenance In China, spousal maintenance is referred to as “eco ‑ nomic assistance” upon divorce. It is only granted if one party faces living difficulties (eg, disability, lack of capacity to work) and the other party has the ability to provide support; then, appropriate assistance should be given (Civil Code Article 1090). It is not a general obligation. Following the breakdown of a marriage and before the final outcome, a party can apply for “advance execution” or interim measures, but the standard is very strict. It is necessary to prove urgent need (eg, medical expenses); the court may rule on an advance payment. Chinese law does not provide for ongoing spousal maintenance payments. Economic assistance is typi ‑ cally a one-time or short-term payment. The amount is determined considering factors such as the local standard of living and both parties’ financial capabili ‑ ties and contributions to the marriage. 2.5 Prenuptial and Postnuptial Agreements China recognises prenuptial and postnuptial agree ‑ ments, but they must comply with the Civil Code. The content of the agreement must not violate mandatory legal provisions or public order and good morals (eg, an agreement waiving child custody rights is invalid). Agreements regarding property division are generally respected. Courts respect valid agreements, but may adjust them if they are grossly unfair, emphasising that the agreement must reflect the true intention of both parties. Disputes over marital property agreements are relatively rare in trial practice. However, in cases like (2025) Chuan 0981 Min Chu No 4712, the court, regarding a post-divorce property agreement between spouses, applied Judicial Interpretation I of the Civil Code, Family Part, Article 69 (2): “The clauses regard ‑ ing property and debt handling in the divorce agree ‑ ment signed by the parties according to Article 1076 of the Civil Code are legally binding on both parties”.
Civil Code). In the absence of an agreement, the statu ‑ tory system of joint property applies. During divorce, the following applies. • Division of joint property: The principle is equal division, but the proportion may be adjusted con ‑ sidering contributions, fault and other factors. • Treatment of special property: Assets like real estate and company equity often require valuation to determine their value before division. For exam ‑ ple, for a property purchased before marriage with the loan repaid during marriage, the titled party typically compensates the other party for the jointly repaid portion of the loan and its appreciation. • Latest judicial interpretation: The “Interpretation (II) of the Marriage and Family Section of the Civil Code”, effective in 2025, further clarifies that in cases involving a short marriage duration and significant disparity in contributions, the court may rule that the property belongs to the contributing party, but reasonable compensation must be paid to the other party. Trusts Family courts recognise the trust system and examine the nature of trust property with reference to the Trust Law and the Civil Code. The court’s review focuses on the following • The source of trust property: If the property used to establish the trust constitutes marital joint property, the consent of the spouse is required. Otherwise, the trust may be deemed invalid. • The legitimacy of the trust’s purpose: A trust estab ‑ lished to evade debts or conceal joint property may be deemed invalid by the court according to Article 154 of the Civil Code. • Court powers: These include ordering the trustee to disclose trust information, confirming the validity of the trust and ordering the return of property. For example, if one party establishes a trust with joint property for the purpose of bigamy, the other party has the right to request confirmation of the act’s invalidity and the return of the property.
93 CHAMBERS.COM
Powered by FlippingBook