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How to distinguish between Ningbo premarital property agreement and gift

Ningbo Author：LuXu WANG

Ms. Sun owned a real estate before marriage, and signed a written agreement with her husband after marriage, agreeing that the real estate was the joint property of husband and wife. Later, their relationship deteriorated, and the husband requested that the property be divided in accordance with the agreement. However, Ms. Sun argued that the agreement constituted a gift and that she had the right to revoke it. The court ultimately determined that the agreement constituted a property agreement between spouses, and Ms. Sun is not entitled to unilaterally revoke it. The same is "to divide the house to the other party", written as "husband and wife property agreement" and written as "gift contract", the legal consequences are completely different: the former is binding on both parties from the date of signing, not conditional on transfer of ownership, and cannot unilaterally go back on its word; The latter can be revoked at will in principle (except after notarization) before the registration of property transfer. In a nutshell: First, examine the nature of the agreement; second, determine whether the transfer of ownership has been completed; only then can we discuss whether revocation is possible.

Dismantling of 1. Legal Basis and Elements

Article 1065 of the the People's Republic of China Civil Code stipulates: "The man and the woman may agree that the property acquired during the marriage and the pre-marital property shall be owned by themselves, jointly or partly by themselves or partly by themselves. The agreement shall be in writing. Any agreement between spouses regarding property acquired during the marriage as well as premarital property shall be legally binding on both parties. "If the husband and wife agree to own the property acquired during the marriage, the debts incurred by the husband or wife to the outside world shall be paid off with the personal property of the husband or wife if the relative knows the agreement.

This article is the core basis of the property agreement between husband and wife, and there are four elements for its establishment: first, the subject is limited to the husband and wife in the legal marriage relationship, and the cohabitation relationship and love relationship are not applicable; second, the object of the agreement can be the property before marriage, the property acquired in marriage, or the future income and debt bearing arrangement; third, it must be in written form, and the oral agreement will not take effect; fourth, the meaning is true, there is no fraud or coercion. In terms of validity, the property agreement shall take effect from the signing of both parties, and shall be internally binding on both spouses, and shall not be subject to notarization, nor shall the transfer or addition of the property be a condition of entry into force; however, in order to fight against unwitting creditors, it shall be proved that the creditor "knows" the agreement.

The rules governing gifts, however, are different. Article 6108 of the Civil Code stipulates: "The donor may revoke the gift before the right to the gift property is transferred. The provisions of the preceding paragraph shall not apply to a notarized gift contract or a gift contract with the nature of public welfare and moral obligations such as disaster relief, poverty alleviation and assistance to the disabled that cannot be revoked according to law. "In layman's terms, before the transfer of rights, the donor enjoys the" right to regret.

Property Gifts are also subject to special rules. Article 32 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates: "Before marriage or during the existence of the marriage relationship, the parties agree to donate the real estate owned by one party to the other party or jointly. If the donor cancels the gift before the registration of the change of the gift real estate and the other party requests the order to continue to perform, the people's court may handle it in accordance with the provisions of Article 658 of the Civil Code. "That is to say, the husband and wife verbally or in writing agreed to give the personal property to the other party, as long as there is no transfer, the donor can generally still be revoked, the recipient is difficult to force performance.

2. 2025 New Rules: "Property Giving" in Divorce Proceedings No Longer Across the Board

It should be noted that Article 5 of the Interpretation (II) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's the People's Republic of China of China (Law Interpretation [2025] No. 1), which came into effect on "before marriage or during marriage, the parties agreed to transfer and register the house owned by one party to the name of the other party or both parties, and the house has not been transferred at the time of divorce. The court no longer simply applies the phrase" it can be arbitrarily revoked without transfer ", but combines the purpose of giving, taking into account factors such as the duration of the marriage relationship, the situation of living together and the birth of common children, the fault of divorce, the contribution to the family and the market price of the house at the time of divorce, judgment that the house is owned by one of the parties and determine whether and how much compensation is made. If the marriage relationship lasts for a short period of time and the giving party has no major fault, the court may decide that the house belongs to the giving party; the giving party has evidence to prove that the other party has fraud, coercion, serious infringement of the legitimate rights and interests of the giving party or its close relatives, and has maintenance obligations to the giving party. If it fails to perform, it may request the cancellation of the civil legal act.

According to this, it is the same as "the marriage says that the house belongs to the other party": if the dispute occurs in the divorce proceedings, it shall be comprehensively judged according to Article 5 of the (II) of interpretation; If the divorce proceedings have not yet been entered and one party alone claims arbitrary revocation, it shall still be dealt with according to Article 658 of the Civil Code and Article 32 of the (I) of interpretation. The determination of the nature of the agreement remains the starting point for all assessments.

Four Cases of Judicial Determination of 3. Property Agreement and Gift

  1. Explicitly using the term “gift” and specifying the time for transfer of ownership., the court is more likely to recognize the relationship as a gift; the donor may revoke the gift before the transfer of title, unless it is a notarized gift.
  2. Using expressions such as “agreed upon” or “to be jointly owned by both parties,” and making comprehensive arrangements for multiple items of property or liabilities., usually identified as marital property agreement, signed into effect, both parties should abide.
  3. If the title of the agreement conflicts with the content (for example, the title says "gift agreement", but the text is the overall arrangement of the husband and wife's property), the substantive content and the true meaning shall prevail, regardless of the title.
  4. It is agreed in the divorce agreement to give the common property to the children, which belongs to the special arrangement based on the dissolution of the marriage relationship, according to Article 20 of the (II) of Interpretation, one party after divorce cannot unilaterally revoke the property rights before transferring (except for the consent of the other party or the existence of fraud or coercion)-this is much stricter than ordinary gifts.

4. effectiveness comparison: transfer, notarization, third party protection

Property agreement and gift have different rules in the three dimensions of "whether to transfer ownership", "whether to notarize" and "whether to oppose the third party": Property agreement takes the transfer ownership as the effective condition, and the signing will take effect, but there will be no real right change effect. If it is disposed to a bona fide third party in the future, it can only claim the liability for breach of contract to the other party; In principle, before the transfer can be revoked, after the transfer is irrevocable, notarized gifts although not transferred can not be arbitrarily revoked, the recipient may request to continue to perform and assist in the transfer. In terms of external effect, the marital property agreement can only be confronted when the creditor "knows"; if the gift infringes the creditor's claim, the creditor may request revocation in accordance with Articles 5

38and 539 of the Civil Code.

The tax and registration costs of the two arrangements are also worth estimating in advance: the change of ownership of house and land between husband and wife during the existence of the marriage relationship (the ownership of one party is changed to the ownership of both parties or the ownership of the other party, the ownership of both parties is changed to the ownership of one party or the joint share is agreed to be changed) is exempted from deed tax according to the Notice of the Ministry of Finance and the State Administration of Taxation on the Policy of Deed Tax on the Change of House and Land Ownership between Husband and Husband and Husband and Wife (Caishui No. 4) (Caishui No. 4 [2014, in accordance with the Notice of the Ministry of Finance and the State Administration of Taxation on Issues Concerning Individual Income Tax on Houses Gifted by Individuals Free of Charge (No. 78 [2009] of the Ministry of Finance), no individual income tax shall be levied on the parties concerned; small costs such as notarization fees, registration fees and stamp duty shall be calculated separately. If it is planned to deal with the ownership of the property at one time through the divorce agreement, the processing time limit for the transfer of the property after the divorce and the bank's restrictions on the transfer and addition of the name when the mortgage loan is not settled-the mortgage house usually needs to pay off the loan or obtain the written consent of the bank before the registration can be changed. This practical obstacle is often the main reason why "the agreement is signed but the certificate cannot pass the account for a long time. Procedurally, those who simply claim to perform the marital property agreement and confirm the ownership of the real estate may involve the exclusive jurisdiction of real estate disputes, which shall be under the jurisdiction of the people's court where the real estate is located; divorce litigation is regarded as an identity relationship litigation, which shall be under the jurisdiction of the people's court where the defendant is domiciled, and shall not be subject to the location of the real estate. And change. Before filing a case, you can first confirm jurisdiction and the required documents through 12368 or at the court’s case-filing window to avoid unnecessary trips.

Finally, two kinds of implementation reality are suggested: first, if the obligor of transfer does not cooperate, the obligor can appeal to order him to assist in handling the transfer registration, and after the judgment takes effect, he can unilaterally apply for the registration of change of real estate registration agency with the judgment document; second, if the marital property agreement is recognized as valid, the court usually does not support it if the other party goes back and claims to cancel it in the divorce proceedings, however, the agreement is subject to fraud, coercion and other circumstances. Where debt segregation arrangements are involved (e. g., agreements to separate property to segregate one party's operating debt), it is important to assess the risk of creditor avoidance at the same time: the agreement cannot be used against unwitting creditors, and the agreement to evade debt in bad faith may itself be revoked.

5. deduction case

A man purchased a real estate in Ningbo with full money before marriage. After marriage, he signed a "Marital Property Agreement" with his wife B, stating that "the above-mentioned real estate is jointly owned by both parties, each accounting for 50% of the shares", and did not handle the registration of adding names. Two years later, the two parties divorced, B asked for a division according to the agreement, A claimed that this is a gift, not the transfer can be revoked. The court found that: the agreement adopts the expression of "common ownership", belongs to the overall property arrangement of both parties rather than the unilateral free transfer, the nature of the husband and wife property agreement, since the signing of the effective, not because of the non-name and invalid, the judgment of the property is shared by both parties and divided according to the share. On the other hand, if A and B signed the "real estate gift contract", it is clear that "A voluntarily gives the real estate to B" and has not been notarized, not transferred, A before the divorce claims to cancel the gift, the court usually supports it.

6. Common Misunderstandings and Positive Solutions

  1. Misconception: Once an agreement is signed, the house automatically belongs to the other party. If it is identified as a gift and has not been transferred, the donor can still revoke it; only the marital property agreement, notarized gift, or the situation covered by Article 5 and Article 20 of the (II) of interpretation, can have the effect of compulsory performance or irrevocable.
  2. Misunderstanding: The property agreement between husband and wife must be transferred to be effective. The property agreement takes effect since it is signed and does not take the transfer of ownership as a condition; but without the transfer of ownership, there is no change in real right, and the contracting party can only request performance according to the agreement. If the property has been acquired by a bona fide third party, it can only claim compensation for breach of contract.
  3. Misunderstanding: Any written marital agreement is valid. The content should be clear and specific; if the agreement harms the interests of the creditor, the creditor can request to revoke it; the clause that violates the mandatory provisions of law or public order and good customs is invalid.
  4. Misunderstanding: If the gift is notarized, everything will be fine. Notarization excludes arbitrary revocation, but the recipient still needs to request the transfer of ownership in time; if the transfer of ownership is not advocated for a long time, the house is still registered in the name of the donor, and there is a risk of being punished by the donor or judicial seizure.

List of 7. Materials and Evidence

  1. Original agreement (marital property agreement, gift contract, divorce agreement and supplementary agreement);
  2. Ownership certificate, purchase contract, payment certificate, loan contract and repayment record of the property;
  3. Evidence of signing process: signing photos, videos and WeChat communication records (keeping the original carrier);
  4. Notarized instrument (if any);
  5. the acceptance certificate of transfer and name-adding registration or the change record of real property right certificate;
  6. Background materials to prove the true meaning: capital contribution source vouchers, parental transfer records and remarks.

class case reference: in the case of property dispute after the divorce between chen and zhou, both parties agreed within the marriage to share the property of one party before marriage. the court held that the agreement was the property agreement of husband and wife, which was legal and effective, but the essence was gift, and the real estate could be revoked before the registration of change. It can be seen that the legal consequences of "marital property agreement" and "gift" are different: the former signature is effective and cannot be unilaterally repented, while the latter can be arbitrarily revoked in principle before the transfer. Trial Court: Case No. of Yinzhou District People's Court of Ningbo City, Zhejiang Province:(2013) Yong Yinjiang Min Chu Zi No. 708

8. FAQ

Does a prenuptial agreement need to be notarized?

Notarization is not required by law, and a written signature becomes effective. However, if the real estate is involved and the dispute of "whether it is true or not" is excluded in the future, notarization can enhance the probative force, and if you want to completely lock in the irrevocable effect of the gift, notarization is a necessary means.

During the marriage, we agreed that the house would belong to the other party. Can I still change my mind if the property has not been transferred?

Cases: If it belongs to the property agreement between husband and wife, the signing will take effect without unilateral repentance; If it belongs to ordinary gift and has not been transferred or notarized, the donor can revoke it in principle; If this kind of "real estate grant" is dealt with in divorce proceedings, it shall be comprehensively determined according to Article 5 of the Interpretation (II). If the marriage lasts for a short time and the donor has no major fault, the house may be awarded.

Can I go back on my word after the divorce if I agree to give the house to my child?

According to Article 20 of the (II) of Interpretation, if the divorce agreement stipulates that the common property will be given to the children, the court will not support the cancellation of one party's request before the transfer of property rights after the divorce (except for the consent of the other party or the existence of fraud or coercion). This is clearly different from the arbitrary revocation rules of general gifts.

Under a regime of separate property, can it protect one’s assets from creditors?

can not be naturally confrontation. It must be proved that the creditor knew of the agreement, otherwise it may still be punished as a joint debt of the husband and wife or paid off on the basis of joint property. It is recommended that the agreement be notified in writing to the principal creditor and that evidence of delivery be retained.

Practical experience of 9. lawyers

the same is to divide the house to the other party, written as a husband and wife property agreement or written as a gift contract, the consequences are completely different: the signature of the former is binding on both parties, not on the premise of transfer of ownership, and can not unilaterally repent; the latter before the transfer registration, in principle, the donor can also withdraw. Therefore, to see whether an agreement can be overturned, the order is to first look at its nature, then see if there is a transfer of ownership, and finally talk about repentance.The most common mistake of the parties is to treat this difference as a word game. When the other party turns against him, he finds that he is standing in the wrong position.

If you want to fix your own interests, try to follow the path of written property agreement, write down the target, share and effective conditions clearly, and handle notarization if conditions permit. Don't just say a word to you after the house on WeChat or the dining table. That kind of expression is neither qualitative nor proof. On the other hand, if the other party verbally promises to send you the real estate, but does not transfer the ownership, you must be psychologically prepared: in the absence of a clear agreement on the nature of the agreement and no notarization, the binding force of this commitment is very weak, and it is not realistic to expect it to win the lawsuit.

There are also two points that are easily overlooked. First, the content of the agreement should not step on the line, and the agreed property can be used, but it may not take effect if it involves such identity contents as restricting the freedom of divorce and depriving visitation rights. The second is the external effect. The agreement between husband and wife should be against unwitting creditors and need to be able to prove that the other party knows the agreement. When it comes to the negotiation table, it is more useful to clarify the nature of the issue first than to pull on the amount: if the nature is clear, what can be divided and whether we can go back on our word will be determined.

The difference between a property agreement and a gift is very different in effect from revocability. When drafting, first think clearly about the real purpose: to arrange the overall ownership of the property after marriage, use the "husband and wife property agreement", sign in writing, list the property list, and notarize to enhance the proof force; If one party gives the personal property to the other party free of charge, it will use the "gift contract" and handle the transfer of ownership or name addition as soon as possible to make the transfer of rights real. When it comes to giving property to children and real estate in the context of divorce, it is important to pay attention to the latest caliber of the Marriage and Family Interpretation (II) to be implemented in 2025. No matter which method is chosen, the signing time, background materials and communication records are kept to prevent one party from denying the true intention afterwards.