In divorce proceedings, the parties usually fight for their legitimate rights and interests around three major litigation requests: divorce, child custody, and property division. The compensation benefits for demolition belong to the category of property division. With the intensification of urbanization, the phenomenon of land expropriation is commonplace, and the compensation for the expropriation of houses on land generally involves a large amount of money, which belongs to important family property. Whether one spouse has the right to divide during divorce involves the determination of joint property between spouses. The key to determining whether one party enjoys the benefits of demolition compensation is to determine whether the involved demolished house and the compensation benefits belong to the joint property of husband and wife.

Article 1062 of the Civil Code defines "joint property of husband and wife" as the property acquired by the couple during the existence of their marital relationship. The common property of husband and wife mainly includes two types: statutory and contractual. The agreement between husband and wife regarding the property acquired during the existence of the marital relationship and pre marital property is binding on both parties, and the agreement takes precedence over the law. As for the statutory joint property of husband and wife, except for special circumstances, the property obtained during the existence of the marital relationship is generally presumed to be joint property of husband and wife, including the income generated by one party's personal property after marriage (excluding interest and natural appreciation), which should also be recognized as joint property of husband and wife in principle. Therefore, the determination of whether the involved demolition and resettlement housing belongs to the joint property of husband and wife can be analyzed from the aspects of the time of property formation, the source of property, etc.

Below, we will analyze common situations in property division practice from the perspective of the statutory joint property system for spouses.

Does one spouse have the right to divide a property that was demolished before marriage and received compensation or property rights exchange after marriage?

In general, if a "demolition and resettlement agreement" has been signed before marriage to determine the compensation plan for personal housing demolition, even if the demolition and resettlement housing is obtained after marriage, it generally belongs to one party's personal property before marriage. For example, if the expropriated person chooses to exchange the property rights housing with the same value as the monetary compensation amount, the monetary compensation amount in the demolition agreement is mainly based on the value of the demolished housing itself, and does not involve other quotas or payment of price differences. In principle, the benefits of demolition and resettlement are enjoyed by the original property owner of the housing. If one spouse is not the original owner of the housing and requests the court to confirm their partial share of the demolition and resettlement housing, it is generally not supported. The legal basis is that the compensation for the value of the expropriated house is the physical transformation of one spouse's personal premarital property, which does not become joint property of the couple due to the continuation of the marital relationship.

If one spouse believes that the compensation amount corresponding to the difference in area before and after the expropriation and resettlement of the house is the income generated by one spouse's personal property after marriage, without any evidence to support it, the court generally does not support it. The demolition of the original house is based on the needs of construction, and is compensated by the demolition party through signing a resettlement agreement, which is different in nature from the income generated from production and business activities.

But if a "demolition and resettlement agreement" is signed before marriage, and the demolition compensation plan is adjusted after marriage due to an increase in family size, an increase in the area of the demolition and resettlement housing, or an increase in the demolition compensation payment, it can be claimed that the joint property of the couple should be divided. When dividing the divorce property, the court will also consider the relevant provisions of land acquisition compensation and the actual living situation to determine the equity share of one spouse at its discretion.

Therefore, when determining the income generated by personal property after marriage, it is necessary to examine whether one spouse has contributed to the acquisition of the property. If the actual area of the resettlement house increases when it is delivered, and the payment needs to be made, and the payment comes from the jointly owned property of the couple, then this part of the investment can be claimed by one spouse for division.

Of course, the compensation items for the expropriation of a house not only include compensation for the value of the expropriated house, but also other compensation for family members, such as compensation for relocation, temporary resettlement fees, transition fees, production and business losses caused by the expropriation of the house, which can also be claimed for separation.

In summary, if one party's pre marital property is demolished and they receive resettlement housing or compensation after marriage, the court needs to focus on the following aspects to determine whether the resettlement housing can be recognized as joint property of the couple when divorcing:

(1) During the marriage, have both parties made any contributions to the acquisition of property, such as self construction, renovation, or expansion.

(2) Whether the demolition and resettlement are related to the family resettlement population, and the identification and conditions of the demolition and resettlement population.

(3) Is there any property agreement between the two parties.

Are all resettlement houses built after marriage considered joint property of husband and wife?

Both parties in the marriage rebuild, expand or renovate the house, even without considering the number of resettlement personnel, as the resettlement houses obtained from the demolition of the house generally belong to common property. If one spouse obtains a homestead before marriage and builds a house during the marriage, the funds for building the house are not owned by both spouses or come from jointly owned funds, but from the compensation received by one parent if their original old house is expropriated. There is also no evidence to show that both parties have provided relevant economic support and assistance for building the house or engaged in any economic mixing behavior. The compensation for demolition and resettlement in the above situation may not be recognized as joint property of the couple.

If the usual monetary compensation, property rights exchange, or unified construction expropriation compensation methods are adopted, it is confirmed whether one party has the right to compensation for the expropriation and resettlement of houses on state-owned land. Generally, based on the original property rights certificate of the expropriated house and combined with the parties' claims, it can be directly judged whether the demolished and resettled house belongs to the personal property of one spouse or the joint property of the spouses. If the demolition and resettlement housing or monetary compensation obtained after the expropriation of the property is only the conversion of the original property, it does not change the ownership of the property. In litigation, the court will also focus on reviewing the registration items stated on the relevant real estate registration materials, and ascertain the processing status of the real estate ownership certificate for the resettlement housing. For resettlement houses that have already obtained real estate ownership certificates, the court may, in conjunction with the parties' litigation requests, directly divide the disputed resettlement houses. For resettlement houses that have not yet obtained real estate ownership certificates at the time of prosecution, the specific reasons for the lack of certificates will be identified and dealt with separately.

The division of compensation benefits for the demolition and resettlement of houses on collective land is relatively complex, which is due to the special nature of compensation for the expropriation of houses on rural homesteads, mainly manifested in the following aspects:

（1） The demolition and resettlement agreement is signed on a collective household basis, involving the resettlement rights and interests of all resettlement population in the collective household. Without clear agreement, it is not a separate arrangement for a certain resettlement population. The selected monetary and physical resettlement are the overall compensation and resettlement for all resettlement personnel in the household. It should be noted that not all individuals in the household necessarily have the right to compensation for demolition, and those who meet the resettlement conditions need to be determined according to the demolition policies and plans.

（2） Rural land contracting is based on households, and the land will not be adjusted during the contracting period due to changes in population. A rural household can only own one homestead, and the right to use the homestead is jointly enjoyed by the family members of the household, which has a strong identity attribute. The compensation for land and houses in the expropriation and demolition compensation generally refers to the compensation for the legitimate users of homestead land.

（3） Houses on rural homesteads are generally built for a long time, involving a large number of collective household members, and even several generations. The property is usually distributed by the head of the household through various forms such as division agreements, inheritance, wills, and gifts. The division of compensation for the demolition of houses on homestead land also requires confirmation of the ownership of the demolished houses and the parties' share of the houses before the demolition. The demolition and resettlement houses are obtained from the demolition of the old homestead houses, so the recognition of ownership of the demolition and resettlement houses should be based on the recognition of ownership of the old homestead houses. In addition to verifying the rights holder of the original house, the parties involved will also examine whether there have been any subsequent renovations, reconstructions, additions to the house, as well as changes in ownership shares due to gifts, inheritance, sales, and family divisions among family members. Taking into account various factors such as demolition policies in different regions, the actual residential use of the demolished house, the contribution to the construction of the house, and the protection of the residential rights of each family member, the handling will follow the principles of fairness and justice, with a focus on protecting the rights and interests of the actual users of the house.

For couples who establish separate households during the existence of their marriage, the previously expropriated property may belong to the joint property of the couple or to one party's personal property. If the determination of the housing land acquisition and demolition plan and the distribution of related acquisition funds occur during the existence of the marriage relationship between the two parties, and belong to the property obtained during the existence of the marriage relationship, and both husband and wife are included in the resettlement population during the demolition and resettlement, they should be regarded as joint property of husband and wife according to law. In practice, there are also cases where one spouse, as the head of the household, signs a demolition compensation agreement separately with the expropriation party. If the demolition compensation agreement omits the spouse who has the qualification for demolition compensation, the demolition rights and interests stated in the agreement should belong to the joint property of both spouses.

For couples who have not established separate households during the existence of their marriage, the property rights of the expropriated house may exist in the form of shared ownership by multiple families. The compensation for demolition on rural homesteads is distributed on a household basis. Even if the couple belongs to the resettlement objects determined by the demolition and resettlement agreement, it does not necessarily mean that each resettlement object fully enjoys the rights and shares determined by the demolition and resettlement agreement without agreement. For example, one spouse may not be the founder of the homestead, nor the property owner, or have no contribution to the construction of the house, or their household registration has not been moved out after divorce or is not originally in the house on the homestead. In divorce proceedings, the court generally adopts different methods for dividing and distributing property based on the circumstances of the case. When distributing the demolition benefits obtained by one spouse as joint property, the court will also take into account factors such as the source, formation, contribution, length of marriage, contribution to the family, and fault of the compensation benefits for demolition, and give appropriate preference to the division of joint property between husband and wife. Of course, in reality, it is also common for family members to agree on their shares to be inherited by specific family members through family separation or through parental wills. The resulting division or disposal of pre demolition property shares should also be applied accordingly to the division of demolition compensation obtained based on that property.

In addition to determining the initial ownership status of the expropriated property, it is also necessary to investigate the current status and value of the resettlement housing. If the parties have signed a demolition compensation agreement or a property exchange agreement, and the original house has been demolished and the exchanged house (resettlement house/resettlement house) has not been delivered for use or the ownership has not been confirmed, and one party requests to divide the relevant demolition and resettlement benefits in the divorce lawsuit, the people's court generally tends not to handle the disputed house in the divorce dispute, and will file a separate lawsuit after the ownership of the house is determined (see Case No. (2019) Yue 0112 Min Chu 8562).

If the resettlement or relocation house has been delivered for use but the property registration procedures have not been completed, although the court is not suitable to directly confirm the ownership of the house, it can still handle the residential use right of the house. The judgment is that the right holder shall use the house as a residential house before completing the property registration procedures, and then divide it separately after completing the property registration procedures.

If the current value of the delivered resettlement housing can be determined, the court will determine the ownership of the housing based on the case and order the party who has received the resettlement housing to pay compensation to the other party according to the current value of the housing; For cases where the current value of the house cannot be determined, the residential use rights of the resettlement house can also be divided based on the litigation requests of the parties involved.

Below is a summary of common judicial practice issues related to the compensation and division of housing demolition on rural homesteads:

Should compensation fees directly related to the expropriated house be entitled to distribution rights if the approval of homestead land and the construction of houses are not included in the household members?

The ownership of rural homesteads belongs to the village collective economic organization, and villagers only enjoy the right to use the land. Villagers who build houses on homesteads have ownership of the houses they build. Due to the fact that each rural household can only own one homestead, non members of the collective economic organization do not have the right to apply for and obtain homestead. Therefore, those who are neither family members nor have made any contributions during the construction of the house shall not be entitled to compensation for demolition and related expenses directly related to the expropriated house. But if both or one of the spouses renovates or adds to the original house, increasing the area of the original house, the corresponding compensation benefits for the newly added house belong to the joint property of the spouses. In practice, there are also cases where compensation for demolition is obtained through household division according to local rural customs. For example, if the owner of an old house has multiple households during the expropriation compensation, it can be regarded as giving some of the house to others before demolition. One or both spouses obtained the qualification to sign the demolition contract through household division during the demolition process, and the area of the demolished house also came from the gift of the original property owner. The above-mentioned property belongs to the joint property of the couple.

Do individuals who are not directly related to the demolished houses involved in the lawsuit, but have the right to distribution of demolition benefits related to the number of family members?

In reality, there are often a large number of demolished people who do not enjoy common ownership of the demolished houses, such as becoming naturalized as demolished people due to marriage with their original family members. Different courts have different judgments based on different demolition and resettlement policies regarding whether these relocated individuals can enjoy the right to resettlement housing after the demolition of houses shared by their original family members. One point of view is that the per capita resettlement housing area shall not be less than a certain standard, which is based on the basic resettlement rights and interests of the relocated person's registered residence status. The party concerned's request for housing ownership or property rights and interests of the corresponding area should be supported, but based on the principle of fairness, the original housing owner should be paid the corresponding consideration according to the cost price or the price standard of monetary compensation.

Another viewpoint is that the demolition and resettlement of residential buildings are carried out on a household basis, and the main basis for calculating the resettlement area is the area of the demolished house. The per capita area is only used as a supplementary basis and cannot be automatically recognized as a certain share of resettlement housing per capita. If the resettlement area does not increase due to the calculation of the per capita area of the demolished persons who do not enjoy the common share of the demolished house, then the demolished persons cannot enjoy the right to resettlement area. If the calculation of the per capita area of the demolished person increases during demolition, the demolished person can enjoy the right to the excess resettlement area.

As the Intermediate People's Court of Wuxi City believes, during demolition, if the non owner of the old house is a family member and also one of the registered residents in the old house, the demolition compensation policy is calculated based on the per capita resettlement area. For the part that exceeds the original house area, it must be purchased at a replacement price higher than the cost price. The difference between the replacement price and the cost price of the original house area is the policy benefit generated by this increase in household registration, and the corresponding demolition rights are enjoyed by the household registration party. (Refer to the ownership confirmation dispute case between Wu Mei'e and Ding Chaojin, Ding Nanxian, etc. in Su 02 Min Zhong No. 2204 (2019))

The division of benefits related to the demolition and relocation of houses on collective land requires consideration of factors such as the contribution of all parties to the construction of the houses and the size of family contributions. At the same time, rural land acquisition, demolition, and resettlement policies should also ensure the property rights and interests of the relocated households, as well as the basic housing rights and interests of residents. Even if the resettlement objects have no contribution or identity to the expropriated houses, and are not related to the homestead land attached to the expropriated houses, as long as the demolishers list them as resettlement objects in the demolition agreement, from the perspective of ensuring the survival and development rights of the resettlement objects, for the demolition benefits that are not directly related to the expropriated houses but are related to the number of family members, they have the right to equally enjoy the share that family members should enjoy. (See: (2015) Yue Min Chu Zi No. 07645, (2016) Xiang 01 Min Zhong 3305)

Therefore, regardless of whether the houses for demolition and resettlement are replaced by one party or their parents or jointly built old houses, according to the demolition and resettlement agreement, if the resettlement houses or funds are compensated per capita according to the family population, one party cannot deny the demolition and resettlement benefits that the other party should enjoy on the grounds that the other party is not the owner of the demolished house.

How to determine the allocation of shares for members who have been included in the household during the approval of homestead land and housing construction, but have not made substantial investment or contribution to the construction of the house?

In determining the specific proportion of household members included in the registration, the focus is on the historical formation of property and their substantial contributions to the formation of property, as well as the amount of capital investment. Based on the presence and magnitude of capital investment and substantial contributions, the number of shares may be determined at discretion. Although there is no financial investment or other substantial contribution to the construction of the house, it enjoys a corresponding share of the homestead of the house, and is legally recognized as enjoying the demolition benefits related to the house. At the discretion of the court, it is recognized that it still enjoys a certain share of compensation fees in addition to the demolition benefits directly related to the demolished house but related to the number of family members.

In practice, if one or both spouses obtain the qualification for resettlement population through household division during demolition and sign a demolition compensation agreement with the demolition party, the demolished house can be regarded as a gift from the original property owner. The demolition compensation benefits obtained during the marriage or after divorce according to the demolition compensation agreement belong to the joint property of the couple.

Do family members who are not part of the resettlement household have the right to claim the division of demolition and resettlement rights?

To address this issue, it is necessary to first understand the scope or conditions defined by the local expropriation and resettlement policies for resettlement households and personnel; Check if there are any special reasons for not being in the resettlement unit, such as one spouse being a soldier or having a household registration in the military base, rather than being a resident of the unit; Are there any special provisions in laws and regulations, such as the "Regulations on the Placement of Retired Soldiers", which stipulate that retired soldiers who are self-employed and contract rural land before joining the army shall enjoy the same rights as other members of rural collective economic organizations if it is lawfully expropriated, requisitioned or occupied; According to local regulations, compensation policies for demolition and relocation, such as Article 20 (2) of the "Hangzhou City Collective Land and Housing Compensation Regulations," stipulate that "family members of the compensated person who do not have a permanent household registration in the urban area of this city but fall under one of the following circumstances can be included in the resettlement population: (1) spouses who have been married for more than three years,

If the demolisher directly identifies non residents as non resettlement objects and refuses to provide compensation for demolition, it violates the local regulations on expropriation and compensation. If the situation mentioned above is involved in divorce, the party whose rights are damaged may need to confirm their compensation rights for demolition through administrative reconsideration or litigation, and then divide the divorce property.