Ningbo divorce case involving third party property court how to deal

In divorce proceedings, any property, vehicle, equity or deposit registered in the name of an outsider is usually not divided directly by the court in the divorce case. The fundamental reason is that the parties to divorce proceedings are limited to both husband and wife, and the outsider is not a party to the case, and the ownership of the property under his name is directly disposed of without independent trial and debate, which is tantamount to depriving the third party of the right to participate in the procedure and the right to defend. From the scope of property handled by the court, the object of division of divorce cases is limited to the joint property of husband and wife, where the interests of a third party, it is necessary to find out whether the property belongs to the third party or the husband and wife, this judgment can not be completed through the divorce case itself.

But this does not mean that this part of the property is completely out of reach at the time of divorce. In practice, there are usually two paths to choose from: one is to file a lawsuit for confirmation of real rights, separation of property or return of property in a separate case, and then return to the divorce case or post-divorce property dispute to claim division after the ownership is clear; The other is that both husband and wife have reached an agreement on the handling of this part of the property, and the handling opinions are written into the divorce mediation document or mediation agreement. It should be noted that the agreement formed by the latter method only takes effect between the husband and wife, and cannot directly oppose a bona fide third party, nor can it require the registration agency to handle the transfer of ownership.

1. Legal Basis and Processing Order

article 1087 of the Civil Code stipulates that at the time of divorce, the joint property of the husband and wife shall be disposed of by agreement between the two parties, and if the agreement fails, the people's court shall, in accordance with the specific circumstances of the property, decide in accordance with the principle of taking care of the rights and interests of the children, the woman and the non-fault party. The object of this provision is the joint property of husband and wife. For property whose ownership is not clear and registered in the name of another person, the court lacks the normative basis for direct disposition in divorce cases.

At the procedural level, civil litigation follows the principle of disposition and debate, and if an outsider does not participate in the litigation, it is not appropriate for the court to make a decision on his property rights and interests. This is also the reason for the formation of the order of first confirmation of rights and then division in practice: first use the right to confirm the claim to solve the problem of attribution, and then in the divorce or post-divorce property disputes to solve the problem of share. The provision in the interpretation (I) of the Marriage and Family Code of the Civil Code that there is still an outstanding common property that can be divided separately after divorce also provides a procedural outlet for this path.

2. core points

1. Why divorce cases are usually not handled together.

The scope of divorce cases is limited by the subject of litigation, and the court can only decide on the identity and property relations between the husband and wife. Property in the name of an outsider may be his or her personal property, or it may be property registered in a name and actually funded by the husband and wife. The results of these two situations are completely opposite, and these facts must be determined through a trial with the participation of the outsider. It cannot be directly presumed in a divorce case.

Some people will suggest that adding the outsider to the divorce case as the third person can be solved together. In practice, this approach is often difficult to adopt, because the subject matter of the divorce suit is not the same as that of the right suit, and the merger does not meet the statutory merger conditions, but also makes the divorce case unduly delayed. The court's more common treatment is to inform the parties to sue separately for the property of a third party.

2. What circumstances suggest that the property may be related to a third person

there are several typical types: the real estate is registered in the name of the parents, but the purchase price is paid by one or both of the husband and wife; The vehicle is registered in the name of relatives and friends and is actually used by the family for a long time. The equity is registered in the name of relatives or employees, and the actual capital contribution and control are in the hands of one of the husband and wife. The common feature of these situations is that the name of registration is separated from the actual rights and interests.

The party advocating penetration registration needs to bear a heavier burden of proof, usually need to provide transfer vouchers, the original holding of the purchase contract, loan repayment records, decoration and property management payment records, rental income attribution, as well as the two sides on the name or on behalf of the formation of chat records and written agreements. According to Yinzhou Court's White Paper on Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence in family cases have many defects in proof and are difficult to adopt, and the proof of written transfer vouchers and original contracts is more stable. The more complete the evidence, the higher the possibility that the right-confirming lawsuit supports the actual right holder, and the statement of kinship alone is difficult to overturn the registration effect.

3. need to pay attention to the boundary conditions

if the third party expressly waives the right, or accepts in writing that the property actually belongs to the joint property of the husband and wife, the ownership dispute basically disappears, and the court can deal with it together in the divorce case, but the third party is usually still required to give a written opinion or appear in court. If the property belongs to the family, such as a family house jointly financed by the husband and wife and their parents, the share must be determined through the division of the property, and then the part belonging to the husband and wife is included in the division.

It is also necessary to pay attention to two types of procedural risks: first, the third party only appears in court as a witness, and its statement is a kind of evidence, which cannot replace the judgment effect of the right confirmation lawsuit, and the registration institution usually does not handle the change registration only with the testimony of the witness; Second, if the property has been disposed of by the third party to the bona fide transferee and the registration has been completed, the husband and wife who actually contributed may only claim to return the contribution or compensate for the loss, and the property itself cannot be traced.

Practical Experience of 4. Lawyers

in divorce proceedings, the court usually does not directly divide any property, vehicle, equity or deposit registered in the name of an outsider in a divorce case. The reason is very direct: the parties to the divorce case are only limited to the husband and wife, and the outsider is not a party to the case. If the property registered in his name is directly disposed of, it is tantamount to depriving the third party of the right to participate in the procedure and the right to defend. Therefore, when you encounter this kind of property, don't expect to settle it once in a lawsuit. You should think about how it should go in procedure in advance.

In the preparation stage, the family background should be reorganized according to "who is the registrant" to distinguish which are under the names of both parties and which are under the names of parents, relatives or companies. The part involving the interests of the third party often needs to be dealt with separately in addition to the divorce case, or a separate lawsuit is initiated to bring the relevant subjects in together. If such property is essentially the joint property of the husband and wife, such as the registration of the name, the right to hold shares, it is necessary to prepare the capital contribution, control, income attribution of these evidence, separate claims of rights, rather than in the divorce case.

There are two main lines in the strategy: one is to divide the points in the divorce case first, and leave a separate processing path for the part involving the third party, so as not to let the whole case be delayed; The other is to clarify the ownership in another case if it is really necessary. During the negotiation, the other party may use "this house is not mine" and "I have nothing under my name" to delay the time. Don't be confused. First, fix the clues of ownership and funds, negotiate the parts that can be confirmed first, and leave the rest open for subsequent litigation. It is necessary to distinguish which one can be asked for immediately and which one needs to go to another case, so that it will not be blocked by a "cannot be separated.