Insights

Ningbo Divorce Agreement Template

Ningbo Author：LuXu WANG

When many couples went to the Civil Affairs Bureau to register their divorce, they found out that the divorce agreement provided by the marriage registration authority was only a "minimum matching" template, and they signed it after filling in a few blank pages. Many people thought that "it would be all right after filling in the documents". As a result, after the divorce, they had to file a lawsuit for several years because their property was not clearly written, their debts were not listed, and their visits were not agreed. Conclusion: The divorce agreement is a necessary document for the registration of divorce, which takes effect from the date when the two parties obtain the divorce certificate, and the provisions on the handling of property and debt are legally binding on both parties-it is both a "divorce contract" and a direct basis for future rights protection. This paper takes the template framework of the Civil Affairs Bureau as the skeleton, and makes clear the key points, common loopholes and reinforcing clauses on a plate-by-plate basis, with examples of available clauses.

1. legal basis and effective timeline: the agreement is not a "formality"

article 10176 of the Civil Code stipulates that if both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration at the marriage registration authority in person; the divorce agreement shall state the intention of both parties to divorce voluntarily and the consensus on matters such as child support, property and debt handling. Article 1077 stipulates the cooling-off period for divorce: 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 to the marriage registration authority; Within 30 days after the expiration of the 30-day time limit, both parties shall apply to the marriage registration authority in person to issue a divorce certificate. If no application is made, the application for divorce registration shall be deemed to be withdrawn. Article 10170 stipulates that if the marriage registration authority finds that the divorce is indeed voluntary and has properly handled matters such as child support, property and debts, it shall register and issue a divorce certificate.

Three practical rules are thus formed: first, the cooling-off period of 30 days starts from the date when the registration authority accepts the application, during which either party can unilaterally withdraw it; Second, the 30 days after the expiration of the cooling-off period is the window period for receiving the certificate. If the certificate is not obtained within the time limit, the application will be invalid and the agreement will not take effect. Third, Article 69 of the Interpretation (I) of the Supreme People's Court on the Application of Marriage and Family of the Civil Code of the the People's Republic of China, the property division agreement conditional on the registration of divorce shall not take effect if both parties have not registered for divorce; and the provisions on the handling of property and debts in the divorce agreement signed by the parties in accordance with Article 1076 of the Civil Code shall be legally binding on both men and women. If a lawsuit is filed for a dispute over the performance of the agreement after the registered divorce, the people's court shall accept it.

In other words: the agreement may "not count" at any time before the license is issued, and it will be "fixed" after the license is issued ". This determines that the agreement should be treated as the final effective text when drafting-the filling of each column in the template of the Civil Affairs Bureau is equivalent to "legislating" for future rights and obligations ".

Seven sections of the 2. agreement: key points and examples of reinforcement

plate 1: Identity information and willingness to divorce. Write down the names, genders, ID numbers, domicile, date of marriage registration and authorities of both parties, and state that "because the relationship between husband and wife has indeed broken down, both parties divorce voluntarily". Reminder: The ID number is fully written and consistent with the ID card; if there is a history of registration or name change involving foreign affairs, Hong Kong, Macao and Taiwan, fill in truthfully.

Plate 2: Child support. At least state: ① the child's name, gender, ID card number, place of residence and with whom they live together; ② the amount of alimony (it is suggested to distinguish living expenses, education expenses and medical expenses), the payment method (monthly/annual), the payment date (generally until the child reaches the age of 18, or it can be agreed to graduate from university), and the increase mechanism (for example, it is adjusted every two years according to the increase in the per capita consumption expenditure of the previous year);③ Refinement of visiting rights-visiting time (weekly/every other week, winter and summer vacations, holidays), transportation method, handover place, and liability for breach of contract if the other party refuses to cooperate; ④ negotiation mechanism for major matters (medical treatment, transfer, going abroad); ⑤ If there are multiple children, specify them separately. Example clause: "The maintenance fee is 3000 yuan per month, which is paid to the designated account before the 5th of each month, and the overdue payment is 5/10000 per day as penalty. Education expenses (including tuition fees and extra-curricular training expenses confirmed in writing by both parties) and medical expenses (the part to be paid after medical insurance reimbursement) shall be borne by half of the bill. The visiting method is from 9:00 on Saturday to 18:00 on Sunday..." The more specific, the future disputes will be less specific.

Plate three: common property treatment. This is the core of the template, and it is also the most likely to be omitted: ① the real estate shall list the location, title certificate number and ownership one by one, and the time limit for transfer and cooperation obligations; If the loan is not settled, it shall be stated who will repay the loan, when it will be settled, and whether the lender can change the loan. If the bank does not agree to the change, it shall be agreed that "the actual owner shall repay the loan on schedule before the loan changes, and the other party, full compensation";② The vehicle shall list the brand, license plate number and ownership; ③ The deposits, stocks, funds and financial management shall be listed or written according to the accounts "the deposits under their respective names shall be owned by them" (note: before writing "the deposits under their respective names shall be owned by them", it shall be confirmed that the assets under the other party's name are roughly equivalent, otherwise they may suffer losses);④ The company's equity and partnership share, state the time limit for the ownership of equity and the registration of changes, and pay attention to the company law restrictions such as the preemptive right of other shareholders. If the equity is invested in the name of one spouse and in common property, the divorce division must comply with the company's articles of association and the company law. ⑤ The balance of housing accumulation fund and pension personal account belongs to the legal common property (Article 25 of the explanatory (I)), which is often omitted in practice and can be agreed to be divided or offset according to the balance; ⑥ Precious jewelry, luxury goods, virtual property (game account number, digital currency) is recommended to be listed separately; ⑦ state that "the division of the above-mentioned property has been fully negotiated by both parties, there is no fraud or coercion, and the counterparty shall actively assist in the registration of delivery or transfer".

Section 4: Common debt and debt treatment.① Joint creditor's rights (money lent to a third party) list the debtor, amount and attribution; ② Joint debt list the creditor, amount and who will repay it, and agree that "one party has the right to recover the full amount from the other party after paying it off";③ Special reminder: "The debts under their respective names shall be borne by their respective parties" is only an internal agreement and cannot be opposed to bona fide creditors-according to Article 1064 of the Civil Code, during the existence of the marriage relationship, the creditor can still claim to both parties for the debts incurred in the name of the husband and wife or for the daily needs of the family, and the debts that exceed the daily needs of the family but are used for the joint life and joint production and operation of the husband and wife; ④ The responsibility of concealment: "The joint debt concealed by either party shall be borne by the concealer and compensate the other party for the losses suffered as a result. "

plate 5: Economic compensation and damages. The compensation or discount paid by one party to the other party shall specify the total amount, payment time node, payment account and liability for overdue breach of contract, and, if necessary, agree on a guarantee or a guarantor provided by the party with the obligation to pay. Involving article 1088 of the civil code for domestic work compensation and article 1091 for damages, the basis and amount shall be clearly stated, so as to avoid writing "no longer be investigated" in general terms ".

Section 6: Attached obligations and liability for breach of contract. Hukou move out (specify the time limit and liquidated damages), school district degree use arrangement, insurance beneficiary change, documents and information coordination, etc., item by item agreement.

Plate 7: Effective Terms and Other. It is stated that "this agreement is made in triplicate, one for each man and one for each man and one for each man, and one for the marriage registration authority, which shall take effect from the date when both parties obtain the divorce certificate"; Blank or unfinished items can be written "subject to supplementary agreement" and a separate page can be attached; Both parties sign, fingerprint and date.

The boundary of the 3. Civil Affairs Bureau template: it can be used, but it cannot be relied on alone.

The marriage registration authority only makes a formal examination of the divorce agreement and does not examine whether the division of property is fair or whether the terms are complete. There are three common consequences in practice: first, the template has too few spaces and many types of property, and only "the property has been divided" or "there is no common property" is filled in. When one party claims to divide the missing property in the future, the other party is difficult to refute; Second, for the filed divorce agreement, the registration authority will not accept the request for "replacement agreement"-if you want to change the terms, you can only sign a supplementary agreement or settle it through litigation; third, expressions such as "effective from the date when the divorce certificate is issued by the marriage registration authority after the signature of both parties" in the template should be retained, and if the conditions for entry into force are unclear due to self-deletion and modification, disputes may arise. Therefore, it is suggested that the basic framework of the template of the Civil Affairs Bureau should be used as far as possible for the divorce registration agreement, with a detailed list of property and supplementary terms as attachments, and the same signatures should be fingerprinted. Involving large property, equity, multiple sets of real estate, first consult a professional to fill in.

Item-by-item checklist before 4. signing

  1. the names and ID numbers of both parties are consistent with the certificates, and the date is written in full (year, month, day);
  2. child support: whether the attribution, maintenance amount and payment node, visiting arrangement and major expenditure sharing are complete;
  3. real estate: whether the title certificate number, location, ownership, transfer time limit, loan responsibility and vacating time are clearly written;
  4. list of property: whether there is a missing provident fund, pension, equity, insurance cash value, virtual property;
  5. debt: whether the joint debt is specified for sharing and recovery, and whether there is a "concealed debt" clause;
  6. compensation and maintenance: whether to write the payment period, account and overdue penalty;
  7. attached obligations: account, degree, policy beneficiary change whether there is agreement and liability for breach of contract;
  8. the amount is in the same case, with "/" or "none" in the blank to prevent content from being added afterwards.

It is suggested to print out this list and tick it one by one, and sign it after ticking it: if any item cannot be ticked, it means that the agreement has not reached the level of "signing. When signing, both parties shall each hold an original copy, take photos or scan and file it simultaneously. If you want to modify the terms within 30 days of the cooling-off period, you must re-sign and confirm the version before obtaining the license-once the license is obtained, the version filed by the Civil Affairs Bureau will be the final version, and it will hardly be supported in the future on the grounds of "taking the wrong version at that time.

5. FAQ

can I go back on my word during the cooling-off period?

You can. Within 30 days from the date when the registration authority accepts the application for divorce registration, if either party is unwilling to divorce, it may withdraw the application to the registration authority; if the divorce certificate is not jointly obtained within 30 days after the expiration of the cooling-off period, the application shall be deemed to have been withdrawn and the agreement shall not take effect.

Signed a divorce agreement but did not get a divorce certificate, is the agreement valid?

A property division agreement conditional on the registration of a divorce shall not take effect if the divorce is not registered, but if the property clause in the agreement is independent of the divorce conditions and is clearly self-signed, there is room for disputes in practice under the general contract, and it is recommended that such an agreement be signed separately as a marital property agreement.

The agreement says "no common property". Can it be divided in the future?

You can, but quickly. If it is discovered that the other party has concealed or transferred the property after registering the divorce, it may request another division within three years from the date of discovery (limitation of action); the property missing in the agreement may also be claimed to be divided. However, the expression "no common property" may be regarded as the confirmation of the property status at that time, the burden of proof and the difficulty rise, must check clearly before signing the contract.

Can the Civil Affairs Bureau help me amend or replace the agreement that has come into effect?

Can't. After the divorce registration is completed, the registration authority does not accept the request to replace the content of the agreement. If changes are needed, the two parties may sign a supplementary agreement separately; if the negotiation fails, it shall be resolved through litigation (for example, request to revoke the property division clause with fraud or coercion, and interpret Article

70of the (I)).

Agreement divorce and court mediation divorce, which is more secure?

The cost of divorce by agreement is low and the procedures are fast, but if it is not performed, it needs to be sued separately; if a mediation agreement is obtained through court mediation or judicial confirmation, it has enforcement power, and one party can directly apply for enforcement if it fails to perform. If the property is complex and the other party is worried about non-performance, the litigation mediation path may be chosen.

Finally, a reminder of the easily overlooked "demarcation document": marital property agreements and divorce agreements should not be signed together. The marital property agreement resolves the ownership of property during the marriage, which is not necessarily conditional on divorce, and the signature of both parties will take effect; the divorce agreement is conditional on the registration of divorce, and it will not take effect without a certificate. If the property agreement that could have been independent is mixed into the divorce agreement, when the cooling-off period is reversed or the certificate is overdue, all the terms may fail because they are not effective. If there is a demand for marital property arrangements (e. g., the share of the purchase of a house after marriage and the attribution of their respective income), a separate marital property agreement shall be signed and the conditions of entry into force shall be indicated, and the divorce agreement shall be managed in one section and not implicated in each other, so as to avoid the risk of "one document becoming invalid and all arrangements returning to zero.