【线上云德】疫情期间律师说（一百二十八）┃ 如何维护婚姻中无过错方权益？ ——以第三者插足夫妻婚姻生活为视角

《民法典》是于2021年1月1日生效，是一部人民生活的百科全书，接下来的内容主要还是依据《婚姻法》及其司法解释。结合民法典以“如何维护婚姻中无过错方的权益”为主题，分别从刑事的重婚罪以及民事夫妻一方擅自将财产赠予第三方，如何维护无过错方权益。最后阶段与大家分享下离婚冷静期。

The Civil Code entered into force on January 1, 2021, and it is an encyclopedia of people’s lives. The following content is mainly based on the Marriage Law and its judicial interpretation. Combining the Civil Code with the theme of "how to protect the rights and interests of the no-fault party in marriage", how to protect the rights and interests of the no-fault party from the criminal bigamy crime and the civil spouse's unauthorized donation of property to a third party. In the final stage, we will share with you the divorce cooling-off period.

首先，我国《婚姻法》规定了夫妻之间具有相互忠实的义务，应当相互尊重，《民法典》中还增加了夫妻之间相互关爱。我国《刑法》第二百五十八条：有配偶而重婚的，或者明知他人有配偶而与之结婚的，处二年以下有期徒刑或者拘役。

重婚罪的依据四要件分析为：客体上侵害了婚姻关系中的一夫一妻制度。在客观方面表现为行为人必须具有重婚的行为。即有配偶的人又与他人结婚的，或者明知他人有配偶而与之结婚的，就构成重婚罪。本罪的主体为一般主体，一是有配偶的人，在夫妻关系存续期间又与他人成立婚姻关系；二是没有配偶的人，明知对方有配偶而与之结婚。本罪在主观方面表现为直接故意，即明知他人有配偶而与之结婚或自己有配偶而故意与他人结婚。如果没有配偶一方确实不知对方有配偶而与之结婚或以夫妻关系共同生活的，无配偶一方不构成重婚罪，有配偶一方则构成重婚罪。需要注意的是：重婚的动机是多种多样的，有的是喜新厌旧；有的是出于贪图享乐；有的是封建思想作祟等等。但动机不影响本罪的成立。

在重婚罪中，需要区分事实婚姻与同居关系的区别，第一个区分点在于婚姻登记管理条例生效前后为时间节点，在此之前以同居关系存续，之后补办结婚证的属于合法婚姻关系，在此之前未办理结婚证但同居产生的为事实婚姻，但是在之后未办理结婚证长期稳定以夫妻名义共同生活的以同居关系进行处理，但对同居分手后，对财产的分割可参照离婚财产分割进行处理。

First of all, my country's "Marriage Law" stipulates that husband and wife have the obligation to be faithful to each other and should respect each other. The "Civil Code" also increases the mutual love between husband and wife. Article 258 of my country's Criminal Law: Those who have a spouse and remarry, or who know that others have a spouse and marry it, shall be sentenced to fixed-term imprisonment of not more than two years or detention.

The basis of the analysis of the four elements of bigamy is as follows: the object violates the monogamy system in the marriage relationship. The objective aspect is that the perpetrator must have a bigamy. That is, a person with a spouse who marries another person, or who knows that another person has a spouse and marries it, constitutes a bigamy. The subject of this crime is the general subject. One is a person with a spouse who establishes a marriage relationship with another person during the duration of the relationship. The second is a person without a spouse who knows that the other party has a spouse and marries them. This crime is directly and intentionally expressed subjectively, that is, knowing that someone else has a spouse and marrying it, or intentionally marrying another person if he has a spouse. If one party without a spouse does not know that the other party has a spouse and marries or lives together in a spousal relationship, the party without a spouse does not constitute bigamy, and the party with a spouse constitutes bigamy. It should be noted that the motives for bigamy are many and varied, some like the old and the new; some are out of greed and pleasure; some are feudal ideological and so on. But the motive does not affect the establishment of this crime.

In the crime of bigamy, it is necessary to distinguish the difference between a de facto marriage and a cohabitation relationship. The first distinction is that before and after the Marriage Registration Administration Regulations come into effect, it is a time node. Before that, it continued in a cohabitation relationship. Before the marriage certificate was not applied, but the cohabitation was a factual marriage, but after the marriage certificate was not processed, the long-term stable living in the name of the husband and wife lived in the cohabitation relationship, but after the separation of the cohabitation, the division of property can refer to the divorce property division Be processed.

在婚姻关系生活中，为避免夫妻一方将财产转移给第三人，侵害另一方权益。可以对夫妻的家事代理权限进行限制：1、建立夫妻财产账户约定由夫妻双方将各自的钱存入家庭账户，供日常的生活开销，其余财产供夫妻双方自由支配。2、通过婚内财产协议将夫妻共同财产进行明确约定，任何一方可以自由支配个人财产。3、约定夫妻家事代理权限，因为每个家庭条件不一样，夫妻之间可以根据个人实际情况，约定在多少范围之内的财产支配由一方决定，哪些情况需要夫妻共同签字决定。

最后，《民法典》第1077条“自婚姻登记机关收到离婚登记申请之日起三十日内,任何一方不愿意离婚的,可以向婚姻登记机关撤回离婚登记申请。前款规定期限届满后三十日内,双方应当亲自到婚姻登记机关申请发给离婚证;未申请的,视为撤回离婚登记申请。”该条规定协议离婚需向婚姻登记机关申请，且有三十天的冷静期，在三十天内，任一方不愿意离婚，可以随时撤回离婚申请，若30天内没有撤回申请，则需在第一个30天届满后30天内再次前往婚姻登记机关申请离婚证，若在第二个30天内不申请，则视为撤回离婚登记申请，仍无法协议离婚。即离婚时前前后后需要60日才可能彻底离婚或者不离婚。因此，在2021.1.1之前，若因感情不和，要摆脱婚姻苦海的男女，建议快刀斩乱麻，充分利用半小时内协议离婚的机会，开始崭新的生活。否则，在2021.1.1之后，若存在重婚、家暴、吸毒、赌博等恶习导致夫妻感情破裂，可直接进行诉讼离婚，若双方在诉讼过程中就离婚以及孩子抚养、财产分割、债务分担达成一致意见，法院可出具调解书达到快速离婚的目的，摆脱离婚冷静期的限制。

最后，但还是希望大家珍惜来之不易的缘分，夫妻之间相互忠诚，相互尊重，相互关爱。婚姻不易，且行且珍惜。

In the life of a marriage relationship, in order to prevent one spouse from transferring property to a third party and infringing the rights of the other. The authority of the husband and wife's family agency can be restricted: 1. The husband and wife's property account is established to allow the husband and wife to deposit their money into the family account for daily living expenses, and the rest of the property is for the husband and wife to freely control. 2. Through the marriage property agreement, the joint property of the husband and wife is clearly stipulated, and either party can freely control personal property. 3. Agree on the authority of the husband and wife's family agency, because each family's conditions are different, and the husband and wife can stipulate how much property control within the scope is determined by one party, which requires the husband and wife to sign jointly.

Finally, Article 1077 of the Civil Code “Within 30 days from the date when the marriage registration authority receives the application for divorce registration, if either party is unwilling to divorce, it may withdraw the application for divorce registration from the marriage registration authority. Three Within ten days, both parties should go to the marriage registration authority to apply for the issuance of a divorce certificate; those who do not apply shall be deemed to withdraw their divorce registration application." Within 30 days, if either party is unwilling to divorce, you can withdraw your divorce application at any time. If you do not withdraw your application within 30 days, you will need to go to the marriage registration authority again within 30 days after the expiration of the first 30 days. If you do not apply within a day, you will be deemed to have withdrawn your divorce registration application and you still cannot agree to a divorce. That is, it takes 60 days before or after the divorce to complete a divorce or not. Therefore, before 2021.1.1, if the men and women who want to get rid of the marital difficulties due to emotional disagreement, it is recommended to cut the mess and make full use of the opportunity of a divorce agreement within half an hour to start a new life. Otherwise, after 2021.1.1, if bad habits such as bigamy, domestic violence, drug addiction, gambling, etc. cause the spouse's relationship to break up, they can proceed directly to litigation and divorce. Opinion, the court can issue a mediation letter to achieve the purpose of rapid divorce, and put the restriction of the divorce cooling-off period.

Last but not least, I hope you will cherish the hard-won fate. The husband and wife are loyal, respectful and caring. Marriage is not easy, and it is cherished.