Is Ningbo's transfer of equity valid without spouse's consent?

Is 1. equity joint property of husband and wife

the equity of a limited liability company acquired by the joint property of the husband and wife after marriage is registered in the name of one party and is usually still the property interest jointly owned by the husband and wife. It should be noted that equity itself has both property rights and personal attributes: shareholder qualification in the sense of company law belongs to registered shareholders, and the corresponding property value in the sense of marriage and family law belongs to common property. This "separation of name and reality" is the root cause of equity transfer disputes.

If the equity is acquired by one party before marriage, increased by personal property after marriage or expressly agreed to be personal property, it is not included in the scope of common property. Whether the value-added part of the equity after marriage is shared depends on whether the value-added comes from joint management and joint investment after marriage, or whether it is only due to the natural growth of market conditions, the two conclusions are different.

The 2. is transferred without the consent of the spouse, what is the effect?

At the level of company law, the registered shareholder's external transfer of equity is subject to the provisions of the articles of association and the right of first refusal of other shareholders. In other words, it is usually difficult to obtain support for arguing that the contract of assignment is invalid only on the basis of "without the consent of the spouse.

At the level of marital property, unauthorized transfer is a significant disposition of common property. If the transfer price is obviously low, the transferee is a related party or knows that the marriage relationship is still cooperating, it may be considered as malicious collusion, and the spouse may claim that the transfer damages his property rights and interests and claim compensation. In practice, if the equity is transferred at a low price before the lawsuit, the court may divide or divide the transferor at the time of division.

Whether the 3. transferee can acquire equity

the key depends on whether it constitutes a bona fide acquisition: the transferee does not know and should not know that the equity involves a dispute over the joint property of the husband and wife, has paid a reasonable consideration, has completed the registration of industrial and commercial changes, and when the three conditions are met at the same time, the transferee acquires the equity and the spouse cannot recover the equity itself.

If the transferee is a close relative of the spouse, an affiliate, or if the transaction price is significantly lower than the corresponding share of net assets, good faith is difficult to establish. At this time, the spouse may claim that the transfer is invalid or request the return of the equity, and at the same time pursue the liability of the unauthorized transferor.

4. the impact of other shareholders' preemptive rights

the human nature of a limited liability company determines that other shareholders have the right of first refusal. If the unauthorized transfer is not notified to other shareholders in accordance with the law and infringes on their right of first refusal, other shareholders may claim that the transfer is not effective for them, which is another obstacle to the transfer at the level of corporate law, and the consent of the spouse is two independent review dimensions.

Conversely, even if other shareholders give up the priority purchase and cooperate with the registration, it does not mean that the spouse's property rights and interests have been legally disposed of, and the spouse can still claim the right to transfer the proceeds at the time of divorce division. The two levels of relief can be parallel.

What relief can a 5. spouse claim

if the transfer of shares has been completed and the transferee is in good faith, the spouse may claim a division of the transfer price; if the transfer has not been completed, the spouse may apply for property preservation to freeze the shares or transfer. In the event of a divorce division, a request may be made for the unauthorized transferor to be divided or not, and the return of the transferred price may be claimed.

The evidence should focus on collecting: the time of the transfer agreement and the industrial and commercial change, the comparison of the transfer price with the company's net assets or recent financing valuation, the relationship between the transferee and the other party, and the direction of the transfer payment. The closer the timeline is to the marriage node, the easier it is to identify malice.

6. common mistakes

myth 1: As long as I do not agree, the transfer is of course invalid. The company law protects the security of the transaction, the bona fide transferee is usually protected, and the relief of the spouse is mainly in the division of property and compensation.

Myth 2: The equity registration in the name of the other party is completely owned by the other party. The equity value formed by the joint property contribution after marriage is still common property.

Myth 3: If other shareholders of the company agree, there will be no problem. The other shareholders agreed to address only the company law obstacles, not the marital property rights and interests.

Myth 4: It's too late to find out after divorce. Upon discovery, a further division of the undivided transfer price may be requested.

7. operational steps

1. Check the transfer node

transfer the business change and transfer agreement to confirm whether it is concentrated before and after the marriage change and whether the consideration is fair.

2. Check the background of the assignee

verify the relative, association or nominee relationship between the assignee and the other party to determine whether it is in good faith.

3. Set the path of relief

completed and in good faith pursuit of the price and claim less points.

8. practice tips

most divorce cases involving equity are lost in information asymmetry. One spouse often does not know the true valuation of the company, does not know when the transfer will take place, and by the time it is discovered, the equity has changed ownership. Therefore, when signs of marital change are found, the industrial and commercial files and articles of association should be obtained first, and the equity structure, capital contribution and previous changes should be fixed, and then the division plan should be discussed.

If the transfer of shares is indeed impossible to recover, the focus should be on the tracking of the price and the tilt of the division ratio, clearly put forward the specific proportion of the less points and explain the reasons, rather than generally advocate "the other party's bad faith". Specific, verifiable claims are more likely to be adopted by the courts.

9. evidence and negotiation points

when claiming that the transfer of equity harms the interests of common property, the evidence organization should focus on the three main lines of time, consideration and relevance, the absence of which will significantly weaken the persuasion.

In terms of negotiation strategy, if the equity cannot be recovered, instead of entangling the effectiveness of the transfer, it is better to focus on the division of the price and the tilt of the division ratio, and clearly put forward the specific proportion of the minority.

Involving the company's operations, should also assess the impact of forced division on the company's stability and equity value, in many cases discount compensation than forced confirmation of rights to protect the actual benefits.