In divorce suit, the court discovers marriage has invalid state, must depend on annul of powers and authorities of office -- Huang Mou and Mo Mou marriage are invalid issue appeal record

Both sides has legal of the case that prohibits marrying, its marriage is invalid

Details of a case answers put:

Huang Mou and Mo Mou marry at was being registered on April 3, 2012, bore on April 22, 2013 one child (already died) . Accuser Mo Mou sued a requirement to divorce in March 2014. First trial court is found out, the accused Huang Mou is in a year old of a long time, because have a fever cure is undeserved bring about mental retardation. The common property during both sides lives together has: X card colour television machine one stage, sofa covers one stage, washing machine 4 times, big bed a piece, eat stage, chest, alexipharmic ark one. First trial court thinks, the accused Huang Mou contracts invigorative disease via appraisal, belong to without person of civil action competence. The place before Huang Mou proves its marriage without evidence is insane already cured after marriage. Reason adjudicates because of this Mo Mou and Huang Mou marriage belong to invalid marriage, the common property during living together puts in Huang Mou 's charge all, mo Mou one-time compensation fizzles out to wait 3000 yuan some.

Huang Mou refuses to obey and appeal says, first trial maintains his to suffer from invigorative disease to do not have legal basis, at present our country law sets without proclaimed in writing " mental retardation " belong to mental disease and prohibit marrying, the check-up report before its marriage also says " can marry " , and the litigant request of accuser is a court decision both sides divorces and not be declare marriage invalid. Reason asks 2 careful court lawfully the court decision that cancel first trial disables about marriage, affirm bilateral marriage is effective.

2 careful think: Once the court decision of concerned marriage effectiveness is made, produce legal effectiveness namely. First trial has produced legal effectiveness about the court decision of effectiveness of bilateral party marriage, this academy does not grant to examine. The court decision rejects appeal, maintain original judgement.

Cousin cousin, be not " inherent a pair "

The lawyer comments on:

One, what does the case of invalid marriage have?

According to marriage law the 10th sets, following marriage is invalid marriage:

1. is bigamous

Bigamous namely " have a mate and marry to it with other " . Form bigamy to be able to have two kinds of forms so, it is oneself had had lawful mate but still register with other marry, no matter this " other " whether had had lawful mate, "Oneself " all form bigamy, this bigamous marriage is invalid; 2 it is oneself know perfectly well other to have a mate and still register to it marry, right now no matter " oneself " whether had had lawful mate, as long as " know perfectly well " other has had lawful mate and register to it marry, form bigamy namely. As to this " other " , also form bigamy at the same time of course, because its had had the fact of lawful spouse to oneself,be necessarily " know perfectly well " .

2. has the relative that prohibits marrying to concern

The relative relation that law prohibits marrying is " lineal and consanguineous with 3 acting less than collateral line and consanguineous " . Accordingly, to " lineal and consanguineous " be to prohibit marrying absolutely, and right " collateral line and consanguineous " prohibit criterion be confined to " 3 acting less than " .

Actually, press traditional ethics idea of the Chinese, lineal and consanguineous like father female mother child, may marry far from between grandparent and grandchild, and " of 3 acting less than collateral line and consanguineous " between, if tentatively,also can marry far from between nephew of brother's son mother's brother. Legal place illicit " of 3 acting less than collateral line and consanguineous " prohibit namely actually marry between cousin sister, and it is people what say normally " generation " cousin sister. Like Zhang Nv and Li Nan the maternal each other of 2 people is the maternal aunt of the other side, criterion Zhang Nv and Li Nan are " generation " maternal cousin sibling, according to legal provision, 2 people prohibit marrying. And already exceeded between the children of 2 people " 3 acting less than are collateral line and consanguineous " limits, can marry lawfully.

The disease that thinks to ought not to marry on medicine contracts before 3. marriage, have not cure after marriage

Understand from this literal meaning, "The disease that thinks to ought not to marry on medicine contracts before marriage " do not bring about marriage to disable necessarily, still must " have not cure after marriage " . Although,be like the sicken before marriage, but had cured after marriage, criterion cannot according to a cognizance marriage is invalid. The disease is belonged to as to what " the disease that thinks to ought not to marry on medicine " at present law not regulation of proclaimed in writing. In practice maintain according to particular details of a case by the court commonly, give a judge the certain free space that reduce an amount on one hand so, but because do not have,limit a criterion clearly again and hard to avoid does not belong to the likelihood the disease that prohibits marrying to hold the ground that disables for marriage originally.

4. did not decide marriageable age to the law

At present age of legal comfortable marriage is male year full 22 one full year of life, female year full 20 one full year of life, must be according to exact age of calculative of the Gregorian calendar. The somebody in real life presses consuetudinary computation " nominal age " , law of this kind of method does not grant to approbate commonly. Only the exact age of both sides of male and female all accords with statutory requirement, just can apply for to register marry.

The somebody in reality adopts the means diddle of age of make a false report to register, this kind of marriage is invalid of course. Relevant party can apply for declare marriage to disable lawfully, nevertheless, if be in both sides all application of the reintroduce after full already legal age, right now the invalid main content of not full legal age has disappeared, if do not have other and invalid main content, according to legal provision, the court does not grant annul.

The court discovers marriage has invalid state, should adjudicate annul

2, the court hears divorce case, discover this marriage is invalid marriage, can you deny direct declare marriage to disable?

Top people court about applicable " marriage law of People's Republic of China " the explanation of a certain number of problems (2) the 3rd regulation: "After people court hears divorce case, via examining what belong to invalid marriage truly, the case that ought to disable marriage tells party, make the court decision with declare invalid marriage lawfully. " basis a regulation, the court is when cognizance divorce case, the marriage that discovers party belongs to invalid marriage truly, must make the court decision with invalid marriage, no matter whether party applies for declare marriage,disable. This is law is mandatory regulation, also be law gifts forensic powers and authorities of office, once reason court discovers marriage disables not to need party to apply for to be able to adjudicate annul lawfully. Accordingly, the Huang Mou in this case about " the litigant request of accuser is a court decision both sides divorces and either declare marriage is invalid " a:appellant reason cannot hold water.

3, party refuses to obey the court decision that the court disables about marriage, can you deny put forward to appeal?

Top people court about applicable " marriage law of People's Republic of China " the explanation of a certain number of problems (one) the 9th the first section provision: "Marriage of declare of people court cognizance is invalid case, not applicable to the cognizance of marital effectiveness mediation, ought to enter a judgement lawfully; Once the court decision of concerned marriage effectiveness is made, produce legal effectiveness namely. " accordingly knowable, the court is become effective to adjudicate namely about once make,marriage adjudicates invalidly, law did not give this kinds of court decision to set become effective time limit, party nature also did not offer a:appellant opportunity. According to civil suit fundamental, only authority is opposite party have not the court decision of become effective puts forward to appeal, reason is right already the court decision of become effective has no right to appeal.

The court decision that reason Huang Mou disables with respect to cognizance marriage puts forward to appeal, the practice be good law that 2 careful court does not grant to examine sets.