Civil Code Short Story [055] Two people have lived together for 15 years. Is it cohabitation or de facto marriage?

Determination of de facto marriage and cohabitation

Before the Ministry of Civil Affairs' "Marriage Registration Management Regulations" were promulgated and implemented on February 1, 1994, if a man and a woman lived together and met the substantive requirements for marriage, they would be treated as a de facto marriage.

Starting from February 1, 1994, if a man and a woman without a spouse live together as husband and wife without registering their marriage, their marriage relationship is invalid and they are not protected by law. If the case is brought to the people's court, it should be treated as a cohabitation relationship.

After the promulgation and implementation of the "Marriage Registration Management Regulations" of the Ministry of Civil Affairs on February 1, 1994, if a man and a woman live together, if they do not meet the substantive requirements for marriage, they are in a cohabitation relationship; if they meet the substantive requirements for marriage, they must apply for a new marriage registration, otherwise If the application is reissued, it is considered a cohabitation relationship.

Marriage here refers to a marriage certificate. It is just a marriage ceremony, not a marriage.

The difference between de facto marriage and cohabitation

Whether there is a de facto marriage or not, there are many differences in terms of property disposal, inheritance, marriage, etc. Specifically, there are several aspects such as bigamy, property, inheritance, support, and right to claim compensation.

bigamy. If it is a de facto marriage, then if one party cohabits or marries a third party in the name of husband and wife, it constitutes bigamy. If the circumstances are serious, it may constitute the crime of bigamy. If they are cohabiting, one party can register their marriage with a third party at any time and live together with the third party in the name of husband and wife.

For example, if Xiao Ming and Xiao Hong are in a de facto marriage, even if they do not have a marriage certificate, then if Xiao Ming or Xiao Hong cohabits with someone else as husband and wife, or if they have a marriage certificate with someone else, it will constitute bigamy; If someone else obtains a marriage certificate or lives together as husband and wife, it does not constitute bigamy.

Property: If there is a de facto marriage, both parties will receive joint property as husband and wife, and external liabilities shall be determined according to the liabilities during the duration of the marriage relationship; if they live together, the relationship between husband and wife does not apply, and shall be determined according to the income and expenditure during the cohabitation period.

For example, if Xiao Ming and Xiao Hong have a monthly income of 20,000 yuan each, and the other has a monthly income of 2,000 yuan, if they are married in a de facto relationship, their joint income will be 22,000 yuan. If it is a de facto marriage, Xiao Ming pays 4 million and Xiao Hong pays 1 million to buy a house, which belongs to both parties; if it is a cohabitation, then Xiao Ming has 80% share and Xiao Hong has 20% share.

Inheritance: If there is a de facto marriage, both parties have legal inheritance rights and are each other's first-order heirs; if they live together, there is no legal right to inherit.

If Xiao Ming dies in a car accident, he will leave an inheritance of 2 million. Assume that Xiao Ming has parents and they have a child. If they are in a de facto marriage, Xiao Hong owns one million, and then shares the remaining one million equally with Xiao Ming’s parents and children, that is, Xiao Hong can get 1.25 million. The compensation is 1 million (not inheritance), which will be distributed among Xiao Hong, her children, and Xiao Ming’s parents. If it were a de facto marriage, Xiaohong would have nothing.

Support: If you are in a de facto marriage, you have mutual support obligations, but if you live together, you have no obligation to support each other. If Xiaohong is seriously ill, and if they are in a de facto marriage, Xiaoming should see a doctor for Xiaohong and take care of her. Failure to take care of Xiaohong may lead to Xiaohong's death, which may constitute the crime of abandonment; if they are cohabiting, they do not have these obligations.

Right to claim compensation: If two people are in a de facto marriage and divorce, one party has the right to claim compensation for divorce damages; cohabitation does not.

Interpretation of the Marriage and Family Section of the Civil Code (1)

Article 7 If a man and woman who have not registered their marriage in accordance with the provisions of Article 1049 of the Civil Code but live together as husband and wife file a lawsuit for divorce, they shall be treated differently:

(1) Before the promulgation and implementation of the "Marriage Registration Management Regulations" of the Ministry of Civil Affairs on February 1, 1994, if both men and women have met the substantive requirements for marriage, they will be treated as a de facto marriage.

(2) After the Ministry of Civil Affairs' "Marriage Registration Management Regulations" were promulgated and implemented on February 1, 1994, if both men and women meet the substantive requirements for marriage, the People's Court shall notify them to apply for re-registration of marriage. If the marriage registration is not re-registered, it shall be handled in accordance with the provisions of Article 3 of this Interpretation.

Question: Xiao Ming and Xiao Hong have not obtained a certificate. After their wedding, they have lived together for 15 years and have two children. Are they cohabiting or in a de facto marriage?