Division of real estate in divorce agreement
Will it affect children's enrollment?
1、 Basic case
1. The couple agreed to divorce.
2. The property belongs to the man (the property is located in Haidian, belonging to the key school district, and has been registered in the man's name);
3. The child is raised by the woman (the child's household registration is with the man, and the man's household registration is consistent with the registration of the house property certificate);
4. When the child reaches the school age of primary school, he/she starts to enter school in accordance with the policy;
5. When applying for materials, the parent's marital status column in the form was filled with "divorce" and a copy of the Divorce Agreement was submitted;
6. The school responded that the parents divorced, the children were raised by the women, and the property was owned by the men, so it was not in line with the first category of the zoning policy, that is, the situation of "people and households are the same".
Question: Is there any legal basis for the school's response?
2339 netizens agree with the answer
Thank you, let's take the enrollment policy of school-age children in Haidian District of Beijing as an example to analyze the following:
In the enrollment policy for school-age children in Haidian District, the conditions required for Class A are:
1. Have the registered residence of Haidian District and actually live in Haidian District;
2. registered residence of other districts in Beijing, the legal guardian has property in Haidian District and actually lives in Haidian District;
3. The legal guardian of a family without a house with registered residence in other districts of Beijing works and lives in Haidian District for a long time, meets the conditions of continuously renting a house in Haidian District and actually living in Haidian District for more than 3 years, registers on the Beijing Housing Rental Service Platform, and legally and stably works in Haidian District for more than 3 years.
In this case, the school did not make further explanation on the disqualification of admission conditions. According to the school's opinion, we guess that the main reason for the school to consider that the school could not enter the school in accordance with the policy is that the divorce agreement agreed that the child should be raised by the woman, so the school recognized that the man was not the guardian of the child, and the child did not live in the property owned by the man, so it did not meet the situation of "household identity".
Lawyers believe that the school's response has no legal and policy basis.
Professional legal analysis
In this case, the children have registered residence in Haidian District, so it is OK to directly compare with condition 1, that is, only need to consider whether they actually live in Haidian District, then this case should be analyzed from the following points:
1、 The legal concepts of custody and custody are different and cannot be confused.
Article guide: Articles 26, 27, 1058 and 1084 of the Civil Code
Article 27 of the Civil Code of China stipulates that "parents are the guardians of minors", that is to say, the guardianship of minors by parents is legal, and the guardianship is not lost due to the divorce of parents. Article 26 stipulates that "parents have the obligation to raise, educate and protect their minor children." Article 1058 stipulates that "both husband and wife shall equally enjoy the right to raise, educate and protect their minor children, and jointly undertake the obligation to raise, educate and protect their minor children." Article 1084 stipulates that "The relationship between parents and children does not disappear because of parents' divorce. After divorce, children are still the children of both parents, regardless of whether they are directly raised by their parents or by their parents. After divorce, parents still have the rights and obligations to raise, educate and protect their children." It can be seen from the above legal provisions that the rights and obligations of parents to support minor children do not disappear because of the dissolution of the marriage relationship. In this case, although the parties have divorced, However, parents still have custody and custody of school-age children, and the school cannot deny the right of custody and custody of children if the man does not have direct custody of children.
2、 What should be explained about the "actual residence" of school children?
Article guide: Article 25 of the Civil Code and Article 21 of the Civil Procedure Law
In China's civil law, the concept of "actual residence" is not stipulated, but "habitual residence" is adopted.
For example, Article 25 of the Civil Code "A natural person's residence is the residence recorded in the registered residence or other valid identity registration; if the habitual residence is inconsistent with the residence, the habitual residence is deemed to be the residence." Article 21 of the Civil Procedure Law "A civil action against a citizen shall be under the jurisdiction of the people's court at the defendant's domicile; if the defendant's domicile is inconsistent with the habitual residence, the people's court at the habitual residence shall have jurisdiction."
The "consistency of households" in the local education policy mainly means that the registered residence address of school-age children is consistent with the address of the valid actual residence certificate (house property certificate, house purchase agreement, house site certificate, fund raising house certificate, demolition agreement, lease contract, etc.) provided by their parents or other legal guardians. As a minor, he or she is a person without civil capacity, and his or her residence and life must be carried out by his or her legal guardian. Therefore, the actual residence of the school-age child refers to the address of the valid residence certificate in the area provided by his or her parents or other legal guardian.
Lawyer comments
The school-age children in this case, whether from the perspective of custody, custody or "actual residence", should go through the procedures for enrollment registration. There is no legal basis for refusing to go through the procedures. In addition, we also believe that the definition of the actual residence in the enrollment policy needs to be discussed and defined again. It should be clearly distinguished or unified with the provisions of the law to reduce the anxiety of parents and society about enrollment.
The author of this article
Lawyer Wang Wei
Partner of Beijing Hengli Law Firm
The former judge of the Intermediate People's Court; The provincial "executive expert" won the third prize; Writer of People's Court Daily