preface

It is generally understood that divorce is caused by the breakdown of the relationship between the husband and wife. However, in reality, there is also a special kind of divorce because the parties do not have husband and wife feelings, but because the parties to the interest relationship establish a marriage relationship, and then need to dissolve the marriage relationship due to the end of the interest relationship. At the beginning, this formal registration of marriage because of interest is what we call "fake marriage".

1. Constituent elements of "sham divorce"

1. Since "fake marriage" can be described as "marriage", it also meets the formal requirements for marriage stipulated by law, that is, the parties meet the conditions for marriage, and personally go to the marriage registration office to register the marriage and obtain a marriage certificate. If the marriage is not registered, then the "fake" premise does not exist.

2. The parties to the "fake marriage" are aware and voluntary about the marriage registration procedures, and there is no coercion.

3. The parties to the "fake marriage" subjectively do not have the purpose of establishing a husband and wife relationship, but a husband and wife relationship established in the form of pursuing a special interest relationship. For example, fake marriage to buy a house because of purchase restrictions.

4. "Fake marriage" objectively does not have a substantial husband and wife relationship, such as living together and having children. If there is a substantial conjugal relationship between the parties, then there is no "fake" factor.

Second, the purpose of "sham divorce" does not affect the establishment of marital relations

Since the parties to the "fake marriage" subjectively have no purpose in establishing a husband and wife relationship, and objectively there is no substantive husband and wife relationship, does it mean that the "fake marriage" has not established a marriage relationship? In fact, article 1046 of China's Civil Code stipulates that marriage is voluntary, and article 1049 stipulates that marriage registration is the establishment of marriage relationship. In other words, as long as the parties voluntarily register the marriage and meet the conditions for marriage, the marriage relationship is established at the legal level. The will to marry plays a decisive role in the establishment of the marriage relationship, and the purpose of marriage belongs to the self-care category of the parties and does not attract attention from the outside world.

"Intention to marry" and "purpose of marriage" are two completely different concepts. "Willingness to marry" refers to the attitude of the parties towards the act of entering into marriage, which can be expressed to a certain extent through the act. The "purpose of marriage" refers to the reason for the parties to enter into marriage, which is the inner activity of the person and cannot be known to outsiders. In the case of marriage, the purpose of marriage may be different, and if the marriage relationship is not established because the purpose of marriage of one party is impure and not established, it is unfair to the other party, so it is also unfair to judge whether the marriage relationship is established by the purpose of marriage. The freedom of marriage under Chinese law is guaranteed through "voluntariness", that is, "willingness to marry", so as long as the parties voluntarily register the marriage, the marriage relationship is established, and the respective marriage purposes of both parties are ignored.

3. Whether the marriage relationship established by the "sham divorce" has legal effect

According to Article 146 of the Civil Code, a civil act that is falsely expressed is an invalid act. So the parties to the "fake marriage" did not actually intend to establish a marriage relationship, is it a false expression? Can a "fake marriage" be recognized as an invalid marriage on the basis of this provision of the Civil Code? Although marriage is a civil act, it is different from ordinary civil acts and is specially adjusted by the Marriage and Family Part of the Civil Code, that is, the provisions of the Marriage and Family Part of the Civil Code shall prevail over the issue of the validity of marriage. The Marriage and Family Part of the Civil Code stipulates three types of marriages according to the different validity of marriages: valid marriage, invalid marriage and voidable marriage.

1. Effective marriage, the main characteristics are:

(1) The parties to the marriage should be a man and a woman, and same-sex marriage has not yet been recognized in China;

(2) The parties to the marriage voluntarily enter into a marriage relationship;

(3) The parties to the marriage go through the legal marriage registration procedures;

(4) None of the parties to the marriage has bigamy sex;

(5) The parties to the marriage must be of legal age;

(6) The parties to the marriage do not have close relatives and other circumstances under the law that cannot be married.

2. Invalid marriage mainly refers to three situations:

(1) bigamy;

(2) There is a kinship that prohibits marriage;

(3) Those who have not reached the legal age of marriage.

3. Voidable marriage, especially marriage under duress and concealment of major diseases.

It can be seen that the "fake marriage" itself is not a legal invalid marriage or a voidable marriage, but if the "fake marriage" has the above five circumstances of invalid marriage or voidable marriage, then its marriage validity may be invalid. Conversely, "sham marriage" is also a voluntary marriage registration by the parties, which meets the formal requirements of legal marriage, and has the legal effect of marriage ex officio when it cannot be recognized as an invalid marriage and a voidable marriage.

4. The legal consequences of "fake divorce"

In the absence of nullity in the marriage established by a "sham marriage", the parties must assume the obligations of husband and wife and the responsibilities of marriage. At the same time, it may also face legal risks in both personal and property aspects.

For personal risks. Because the marriage relationship is based on feelings, and the maintenance and restraint of mutual relations mainly rely on morality and emotions, the legal binding force on the relationship between husband and wife may be weaker than other social relations. Moreover, there is a space for family privacy between husband and wife, after all, "it is difficult for officials to decide family affairs", and the law should naturally not interfere too much. Therefore, if a false relationship established in a legal form such as "fake marriage" occurs, if personal injury, sexual assault, etc., it is easier for the aggressor to use "legal marriage" as a cover, and the relief measures for victims are more difficult at this time. The so-called "easy to go up the mountain and difficult to go down the mountain", "fake marriage" impulse can easily get a marriage certificate, but to dissolve a "fake marriage" marriage, you can not get a divorce certificate casually. Divorce by mutual agreement requires both parties to reach a divorce agreement, at which time it is possible for one party to "sit on the ground and start the price" to issue divorce conditions, and litigation divorce also has the time cost of "first judgment inseparable".

For property risks. China's law stipulates the joint property regime of husband and wife, which means that the income of the parties to the "fake marriage" will face the risk of being used as joint property of husband and wife. The fact that the husband and wife are the legal heirs of each other's first line to the throne also means that their inheritance may also be at risk of being legally inherited by the other party. Although the parties can prevent this through marital property agreements and wills, there may still be times when there are times when there are many secrets. In addition, there are also risks shared by husband and wife in the issue of external debt.

(This article is translated by software translator for reference only.)