One, Case Review

In 2011, Ms. Li and Mr. Zhang met through friends and fell in love at first sight. They quickly established a romantic relationship and got married that year. They also had a daughter through marriage. After just one year, the couple indeed experienced a period of happiness. However, as they lived together for a longer time and roles changed, they had major disagreements in consumption values, the importance they placed on their original families, and child-rearing concepts. As a result, they had frequent arguments, with small fights every two days and big fights every three days. Finally, in June 2022, they had a major disagreement over child-rearing concepts and the degree of importance they placed on their original families, and in a fit of anger, Ms. Li left with their daughter and moved back to her parents' house. After calming down, Ms. Li reviewed more than a decade of marriage and realized that the two of them were no longer suitable for each other. It would be better to separate early on for the sake of both parties and the child.

After careful consideration, Ms. Li decided to divorce and insisted on seeking the services of a professional divorce lawyer in Shenzhen. Therefore, Ms. Li learned through friends about Tang Yunhong, the chief lawyer of the Marriage and Family Law Team at Guangdong Daohua Law Firm, who has been focusing on marriage, family, and inheritance disputes for over a decade. She specializes in major property-related marriage and family disputes, with a "firm yet flexible" approach to handling cases, skilled in using a "mediation-first, litigation-as-a-backup" strategy to meet the demands of clients.

In June 2022, after Ms. Li found Tang Yunhong lawyer at Guangdong Daohua Law Firm, she clearly stated the following demands to Tang Yunhong lawyer:

1. Hope to settle the case through mediation and part ways peacefully;

2. Hope for a quick divorce and the immediate dissolution of the marriage relationship, to no longer bear the psychological torment;

3. Hope to obtain custody of the legitimate daughter and require the husband to pay a child support of 5,000 yuan per month;

4. Hope to divide the property purchased by the husband before marriage, obtaining the increased value and the portion of the joint mortgage;

5. The rest of the property shall remain in the respective names of the parties and be owned by each.

II.Focus of the Dispute

Following the acceptance of the委托, the marriage and family law team at Guangdong Dao Hua Law Firm, led by Chief Lawyer Tang Yunhong, immediately formed a special case handling group, analyzed the risks of the case, and argued the case handling plan. The specifics are as follows:

1.Risk One: The first-instance divorce lawsuit does not meet the statutory conditions for divorce, and the court may not grant a divorce judgment, thus there is a risk of not being able to achieve a quick divorce.

According to Article 1079 of the "Civil Code of the People's Republic of China" which states that "where any of the following circumstances exist and mediation fails, a divorce shall be granted: (1) bigamy or cohabitation with another person; (2) the implementation of domestic violence or abuse, or abandonment of family members; (3) habitual indulgence in vices such as gambling or drug abuse, despite repeated correction; (4) separation due to disharmony in feelings for a period of two years; (5) other circumstances that lead to the breakdown of the marriage. Where one party is declared missing and the other party files a divorce lawsuit, a divorce shall be granted. If, after the People's Court has ruled that a divorce shall not be granted, the parties again separate for a period of one year and one party files a divorce lawsuit again, a divorce shall be granted," in this case, Ms. Li and Mr. Zhang do not have any of the aforementioned statutory conditions for divorce and do not meet the conditions for a judicial divorce, therefore, if the man does not agree to divorce for the first time, the court will not grant a divorce.

2.Risk Two: The legitimate daughter is currently living with the father, and there is a risk that the mother may not obtain custody of the legitimate daughter.

According to Article 1084 of the "Civil Code" which states that "after divorce, for children under the age of two, custody shall generally be granted to the mother. For children over the age of two, if the parents cannot reach an agreement on custody, the People's Court shall decide according to the specific circumstances of both parties, in accordance with the principle of what is most beneficial to the minor child. If the child is over the age of eight, their true wishes shall be respected," in this case, the legitimate daughter is now 11 years old, and whether she should live with one of her parents directly should respect the legitimate daughter's true wishes.

3.Risk Three: The father has a stable job with a monthly income of 10,000 yuan, and there is a low risk of child support.

According to Article 49 of the "Interpretation of the Supreme People's Court on the Application of the Marriage and Family Law of the Civil Code" which states that "the amount of child support may be determined based on the actual needs of the child, the financial burden of both parents, and the actual living standards of the locality. For those with a fixed income, child support is generally paid at a rate of 20% to 30% of their monthly total income. For those who bear the support of two or more children, the ratio may be appropriately increased, but generally should not exceed 50% of their monthly total income," in this case, if the father's monthly income is around 10,000 yuan, the child support for the legitimate daughter would be approximately 2,000 to 3,000 yuan, while Ms. Li hopes to reach 5,000 yuan to meet the living and educational expenses of the legitimate daughter in Shenzhen.

4.Risk Four: The property purchased by the father before marriage is the personal property of the father before marriage, and there is a risk that the mother may not be able to divide it; how should the mother divide the portion of the joint loan and the appreciation of the property?

According to Article 1063 of our "Civil Code" which states, "The following properties shall be considered as the personal property of one spouse: (i) the property of one spouse before marriage; (ii) compensation or compensation received by one spouse due to personal injury; (iii) properties designated to one spouse only in wills or gift contracts; (iv) personal daily necessities used exclusively by one spouse; (v) other properties that should be considered as the personal property of one spouse," the real estate purchased by the male party before marriage is considered his personal property before marriage. Can the female party claim a share of the joint repayment and appreciation after marriage? How should it be divided?

5. Risk Five: The male party's mother is sick, with high medical expenses and a situation of borrowing money for treatment, which constitutes a joint debt of the couple that needs to be jointly borne by the female party.

According to Articles 1064 and 1089 of our "Civil Code" which state, "Debts incurred by one spouse in the course of the marriage in their own name, exceeding the needs of family daily life, shall not be considered as joint debts of the couple; however, exceptions are made if the creditor can prove that the debt is used for the joint life of the couple, joint business operations, or based on the joint intention of both parties. At the time of divorce, joint debts of the couple shall be repaid jointly. If the joint property is insufficient to repay or the property belongs to each party separately, the repayment shall be agreed upon by both parties; if an agreement cannot be reached, it shall be decided by the people's court," in this case, the medical expenses for the male party's mother's hospitalization are necessary expenses for the family's joint life and may be considered as joint debts of the couple, which requires the female party to bear the joint responsibility for repayment.

6. Risk Six: The female party has communicated and negotiated with the male party multiple times regarding the divorce agreement, but the male party has consistently refused to pay alimony and also refused to divide the property, thus there is a risk of being unable to communicate and mediate to reach a conclusion.

"The family is the foundation of all happiness" and "Do not air family dirty laundry" have always been the concepts advocated by the Chinese people, and the case of Ms. Li is no exception. However, now she has been unable to reach an agreement with the male party for a divorce and can only entrust a professional divorce lawyer to intervene in communication and negotiation, and mediate in the middle.

III. Case Handling Process

Tang Yunhong, a lawyer at Guangdong Daohua Law Firm, with over a decade of experience in handling divorce cases, quickly formulated a solution based on the circumstances of this case and the demands of the client.

1. Adopting the approach of "mediation as the main method, litigation as the auxiliary method," to promote mediation through litigation and successfully achieve the goal of "a peaceful separation."

   “Harmony at home brings prosperity” and the concept of “amicable separation,” which Tang Yunhong, the lawyer, firmly believes are the beliefs of the Chinese people. Not only does the female party consider it this way, but the male party is also likely to consider it in the same manner. At the same time, if mediation fails, it is necessary to initiate a divorce lawsuit procedure to safeguard the female party’s property rights through the method of property preservation. Therefore, the Daohua Family Law Firm ultimately determined to adopt the case-handling approach of “mediation as the main method, litigation as the auxiliary method.”

2. Tang Yunhong, the lawyer, first intervened to communicate and mediate with the male party, and if mediation fails, to initiate the divorce lawsuit procedure.

After determining the case-handling plan, Tang Yunhong, the lawyer, actively communicated with the male party to express the female party’s intention to divorce and the divorce claims.

After three rounds of communication with the intervention of Tang Yunhong, the lawyer, the male party’s final divorce proposal has changed from the initial divorce proposal (1. Agree to divorce; 2. Child custody is awarded to the male party, and child support does not need to be paid by the female party; 3. The pre-marital property in Shenzhen, whether the down payment or monthly installments, is borne by the male party, and the female party should not be divided, and is unwilling to pay the female party’s property division payment; 4. The 700,000 yuan debt under the male party’s name requires the female party to jointly repay.) to the current final divorce proposal (1. Agree to divorce; 2. Child custody is awarded to the female party, and the male party pays 3,000 yuan in child support per month; 3. The pre-marital property in Shenzhen is valued at 300,000 yuan to compensate the female party; 4. The 700,000 yuan debt under the male party’s name does not require the female party to jointly repay.)

At this point, both parties have reached an impasse and are unable to reach a divorce agreement through negotiation.

3. Carry out “property preservation,” freeze the male party’s property and other assets, and ensure the smooth enforcement of the mediation order or judgment.

After failing to reach an agreement on divorce privately, Tang Yunhong, the lawyer, immediately initiated the divorce lawsuit procedure, carried out property preservation, and through the mandatory power of the court, froze the male party’s property and accounts such as WeChat, Alipay, and bank cards to prevent the male party from transferring assets.

4. Actively contact the court mediator for third-party mediation and keep up with the case progress. Through “empathy, reason, and law” three-party mediation, a successful mediation was achieved, and the case was resolved.

The case entered the pre-litigation mediation stage, and Tang Yunhong, the lawyer, actively contacted the mediators of the Nanshan District People's Court of Shenzhen, proactively communicated the case situation and the claims of the female party, and requested the court mediators to arrange senior mediators to介入 communication and mediation, and invited both parties to have a face-to-face discussion.

At the mediation site, Tang Yunhong, the lawyer, and the mediators from the Nanshan District People's Court of Shenzhen, fully utilized their professional knowledge, approached the thoughts of both parties from the aspects of law, emotion, and reason, and finally, through the coordination and efforts of all parties, both parties finally reached a reconciliation, and the case was resolved.

Four, Case Outcome

With the efforts of Tang Yunhong, the lawyer, and the special case team, the case was successfully mediated, and both parties separated amicably, successfully achieving the client's demands.

1.  The mediation concluded with an amicable separation;

2.  A quick divorce, quickly terminating the marital relationship, and no longer enduring psychological distress;

3.  Obtaining custody of the legitimate child, with the male party paying a child support of 4,500 yuan per month;

4.  Dividing the property purchased by the male party before marriage, obtaining the increased value and the joint loan portion;

5.  The remaining property is owned by each party under their own name.

Five, Tang Law Firm's Perspective

Tang Yunhong, the lawyer, pointed out:

1. Matters of expertise should be handled by professionals to ensure successful outcomes. The Dahuawu Law Firm's marriage and family law team in Guangdong has been focusing on major property-related marriage and family disputes for ten years, excelling in handling marriage and family cases involving over 10 million yuan. They have extensive experience in mediation and litigation in major and complex marriage and family disputes, inheritance disputes, will drafting, and family property distribution, applying local wisdom to handle difficult divorce property division cases involving Shenzhen's small property rights houses, village committee shares, and other complex cases of will drafting and notarization, and inheritance disputes.

2. In handling divorce cases, not only is legal expertise required, but also the warmth of the case handling. By combining "emotion, reason, and law," it is truly possible to resolve the contradictions between both parties, settle disputes, and truly resolve the case, allowing both parties to put down their grievances.

3. As a lawyer, one should fulfill one's duties and responsibilities to the fullest, making every effort to safeguard the legitimate rights and interests of the parties and meet the demands of the client.

(Tang Yunhong Lawyer)

Sixth, Index of Relevant Laws and Regulations

1. Article 1079 of the Civil Code: In any of the following circumstances, where mediation fails, divorce should be granted:

(1) Bigamy or cohabitation with another person;

(2) The implementation of domestic violence or abuse, or abandonment of family members;

(3) Habitual indulgence in vices such as gambling and drug abuse, and failure to reform despite repeated education;

(4) Separation due to disharmony for a full two years;

(5) Other circumstances that lead to the breakdown of the marital relationship. If one party is declared missing and the other party files a divorce lawsuit, divorce should be granted.

After the People's Court rules that divorce should not be granted, if both parties separate again for a full year and one party files a divorce lawsuit again, divorce should be granted.

2. Article 1084 of the Civil Code: The relationship between parents and children shall not be terminated due to divorce. After divorce, children, whether directly cared for by the father or mother, remain the children of both parents. After divorce, parents still have the rights and obligations of custody, education, and protection over their children.

After divorce, children under two years of age shall, as a principle, be directly cared for by the mother. For children over two years of age, if the parents cannot reach an agreement on custody, the People's Court shall decide according to the specific circumstances of both parties, in accordance with the principle of what is most beneficial to the minor children. If the child is over eight years of age, their genuine wishes should be respected.

Article 46 of the Interpretation: For children over two years of age, if both parents demand direct custody and one party has any of the following circumstances, priority may be given:

(1) Has undergone sterilization surgery or is unable to reproduce for other reasons;

(2) The child has lived with one party for a longer period of time, and changing the living environment would be obviously detrimental to the healthy growth of the child;

(3) Has no other children, while the other party has other children;

(4) Living with one party is beneficial to the child's growth, while the other party has a chronic, incurable infectious disease or other serious illness, or has other circumstances that are detrimental to the physical and mental health of the child, and it is not suitable for them to live together.

Article 47: If the conditions for the parents to raise their children are basically the same, and both parties demand direct custody of the child, but the child has lived separately with the grandparents or great-grandparents for many years, and the grandparents or great-grandparents wish to and are able to help care for the grandchildren or great-grandchildren, this may be considered as a priority condition for the parent to directly care for the child.

3. Article 1084 of the Civil Code: After divorce, if the child is directly cared for by one party, the other party shall bear part or all of the child support. The amount and duration of the support shall be agreed upon by both parties; if an agreement cannot be reached, the People's Court shall decide.

According to the provisions of the preceding paragraph, the agreement or judgment shall not prevent the child from making a reasonable demand for an amount exceeding the original amount of the agreement or judgment from either parent when necessary.

Article 49 of the Interpretation of the Civil Code on Marriage and Family Law: The amount of child support may be determined according to the actual needs of the child, the financial burden capacity of both parents, and the actual living standards of the local area.
For those with a fixed income, child support is generally paid at a rate of 20% to 30% of their monthly total income. For those who bear the support of two or more children, the ratio may be appropriately increased, but generally should not exceed 50% of the monthly total income.
4. Article 1062 of the Civil Code: The following property acquired by the couple during the marriage relationship shall be considered as the joint property of the couple and jointly owned by them:

(1) Salaries, bonuses, and remuneration for labor;

(2) Profits from production, operation, and investment;

(3) Profits from intellectual property rights;

(4) Property inherited or gifted, except for the exceptions stipulated in paragraph 3, Article 1063 of this Law;

(5) Other property that should be jointly owned. The couple has an equal right to dispose of the joint property.

5. Article 1063 of the Civil Code: The following property shall be the personal property of one of the spouses:

(1) The property of one spouse before marriage;

(2) Compensation or compensation obtained by one spouse due to personal injury;

(3) Property designated to one spouse only in a will or gift contract;

(4) Personal daily necessities used by one spouse;

(5) Other property that should be the personal property of one spouse.

6. Article 1087 of the Civil Code: At the time of divorce, the joint property of the couple shall be handled by mutual agreement between the two parties; if the agreement cannot be reached, the People's Court shall make a judgment according to the specific circumstances of the property, in accordance with the principle of caring for the interests of the children, the female party, and the innocent party. The rights and interests enjoyed by the husband or wife in the land contract management of the family shall be protected in accordance with the law.

7. Article 1064 of the Civil Code: Debts incurred by both spouses through joint signatures or subsequent recognition by one spouse of the joint intention, as well as debts incurred by one spouse in the name of the individual for the daily needs of the family during the marriage relationship, shall be considered as joint debts of the couple.

Debts incurred by one spouse in the name of the individual for needs beyond the daily needs of the family during the marriage relationship shall not be considered as joint debts of the couple; however, exceptions shall be made if the creditor can prove that the debt is used for the joint life, joint business operations, or based on the joint intention of both spouses.

8. Article 1089 of the Civil Code: At the time of divorce, the joint debts of the couple shall be repaid jointly. If the joint property is insufficient to repay or the property belongs to each party separately, the repayment shall be agreed upon by both parties; if the agreement cannot be reached, the People's Court shall make a judgment.

Seven, Team Introduction

Dao Hua Family Law Firm, specializing for ten years in high-value property family law services, is a实战 expert in marriage, inheritance, and family disputes (mediation/trial), and one of the influential brands in [Shenzhen local] marriage inheritance and wealth management legal services.

The team has handled over 1000 cases related to marriage and inheritance, and has extensive experience in mediation and litigation in complex and difficult marriage and family matters, inheritance disputes, will drafting, and family property distribution. Utilizing local wisdom, the team is skilled in handling difficult divorce property division cases involving Shenzhen's small property rights houses, village committee shares, will drafting and notarization, and inheritance disputes, earning consistent praise from clients.

Adhering to the philosophy of “securing asset safety, preventing legal risks, and empowering wealth growth,” the team assembles experts from the legal, banking, insurance, and tax industries, with a wealth of successful cases. We provide comprehensive solutions for marriage, family, and wealth succession for high-net-worth individuals (including Hong Kong, Macau, and foreign nationals), to achieve the beautiful vision of risk prevention, debt isolation, and family wealth inheritance.

Asset types cover: real estate (residential housing, small property rights houses, land use rights, etc.), various property rights and interests (equities, debts, relocation compensation, copyrights, invention patents, etc.).  

The team has compiled the Dao Hua Marriage and Inheritance Successful Case Compilation and Legal Practice of Family Wealth Inheritance, achieving remarkable results in both legal practice and theoretical research.