Insights

Can Ningbo's spouse sue for selling common property during marriage?

Ningbo Author：LuXu WANG

To begin with the conclusion: you can file a lawsuit, and you should do so as soon as possible. During marriage, if one spouse sells jointly owned property without the other spouse’s consent, the latter’s available remedies depend on whether the purchaser qualifies as a bona fide purchaser. If the purchaser acted in good faith, paid a reasonable price, and has completed the transfer of title, recovery of the property is unlikely; however, the aggrieved spouse may seek damages from the disposing spouse and claim a smaller share in the divorce property division. If the purchaser colluded maliciously, the price was conspicuously low, or the transfer of title has not yet been completed, the aggrieved spouse may demand the return of the property or seek a declaration that the disposition is invalid. The success or failure is determined by the fixed speed of evidence and the timeliness of prosecution and preservation.

1. The legal basis and grounds for a spouse's right to file a lawsuit

The joint property of husband and wife is joint property. Article 1062, paragraph 2, of the the People's Republic of China Civil Code stipulates that husband and wife have equal rights to deal with common property, which is reflected in the right to make unilateral decisions within the scope of daily family affairs and the right to make joint decisions on major sanctions. Article 201 of the Civil Code further clarifies: "The disposition of common immovable or movable property ...... shall be subject to the consent of the co-owners or all the co-owners who account for more than 2/3 of the shares, unless otherwise agreed between the co-owners. "The husband and wife have no agreed share of the common real estate, equity and other major property, and one party has no right to dispose of it if it sells it without authorization.

Complementing this is the rule on agency for routine household affairs. Article 1060 of the Civil Code stipulates: "A civil legal act performed by one of the spouses for the daily needs of the family shall have effect on both spouses, unless otherwise agreed by one of the spouses and the counterparty. Restrictions imposed by one spouse on the scope of civil legal acts that the other spouse may undertake shall not be enforceable against a bona fide third party. "Any party can decide separately on the punishment within the scope of daily family affairs such as buying rice and vegetables, paying water, electricity and property fees, etc. However, major punishments such as buying and selling houses, transferring equity and giving large sums of money obviously exceed the daily needs of the family and do not belong to the scope of family affairs agency-whether the spouse of the unauthorized party has the right to recover starts from the point of" whether it exceeds the family affairs agency and whether it constitutes no right to punish.

The relevant claim basis is disassembled as follows:

  1. Basis of House Recovery -- Article 28 of the Interpretation (I) of Marriage and Family Compilation:"If one party sells the house jointly owned by the husband and wife without the consent of the other party, and the third party buys in good faith, pays reasonable consideration and has registered the real estate, and the other party claims to recover the house, the people's court will not support it. If one of the spouses disposes of a jointly owned house without authorization and causes losses to the other party, and the other party requests compensation for the losses at the time of divorce, the people's court shall support it. "The reverse of the provision states that when the third party does not constitute a bona fide acquisition, the spouse has the right to claim recovery.
  2. Constitutive requirements of bona fide acquisition -- Article 341 of the Civil Code: if the person without the right of disposition transfers the immovable property or chattel to the transferee, the transferee must meet the three requirements of good faith at the time of transfer, transfer at a reasonable price and complete the registration (chattel delivery) according to law at the same time to obtain the ownership.
  3. Invalidity of malicious collusion-Article 154 of the Civil Code: The civil juristic act of malicious collusion between the perpetrator and the relative to damage the legitimate rights and interests of others is invalid. Where a spouse colludes with close relatives or related parties to sell a house at an undervalue, the aggrieved party may bring suit to have the contract declared invalid and seek the return of the property.
  4. Less divided or not divided-Article 1092 of the Civil Code: If one party conceals, transfers, sells off, damages, or squanders the couple’s joint property, they may receive a smaller share or no share at all during the divorce division; if such conduct is discovered after the divorce, the other party may also request a re‑division of the assets.
  5. Registration of Objections-Article 221 of the Civil Code: If the obligee recorded in the real estate register does not agree to the correction, the interested party can apply for objection registration; if no prosecution is filed within 15 days after the objection registration, the objection registration will be invalid.

Whether the 2. can be recovered: judging by the buyer's situation in layers

The main line of judgment is "whether the buyer is in good faith, whether he has paid a reasonable consideration, and whether he has completed the registration", and the lack of one of the three does not constitute a bona fide acquisition:

  1. Bona Fide of Buyer + Reasonable Consideration + Registered: It constitutes bona fide acquisition, the house belongs to the buyer, and the spouse cannot recover the property, so he can only turn to: claim for losses from the unauthorized disposition party (limited to the due share), and claim for less points in the divorce division. Filing a claim is not the same as pursuing repossession; the strategy should be adjusted as early as possible to avoid prolonging the litigation process by focusing on repossession.
  2. The buyer is not in good faith or the price is obviously low: For example, if the buyer knows that the seller is married and the house is shared by the husband and wife, or the transaction price is obviously lower than the market price of the same lot in the same period, it does not constitute bona fide acquisition, and the spouse can claim the invalidation or revocation of the sales contract and recover the house.
  3. Malicious collusion with close relatives and related persons: if one of the spouses "sells" the shared real estate to his parents, brothers and sisters and related companies at a low price, it is often identified as maliciously colluding to damage the rights and interests of the spouse, which is invalid and returned according to Article 154 of the Civil Code. In practice, Ningbo Court mostly holds this caliber.
  4. Only signed the contract, not yet transferred: the real right has not changed, and the recovery space is the largest. The spouse may promptly file an objection registration to prevent the transfer of ownership, notify the registration authority in writing of the dispute over property rights, and bring a lawsuit to confirm the validity of the contract or claim for restitution.
  5. Daily petty punishment: The sale of old furniture, petty daily necessities, etc. is within the scope of family affairs agency, and the other party can not claim invalidity at will, which has a clear boundary with the disposition of major property.

need to prompt: if the spouse claims that the buyer is "not in good faith", he must bear the burden of proof-to prove that the buyer knows the marital status and common facts, the transaction price is unreasonable or the transaction background is abnormal. If the evidence is insufficient, the court can only treat the case as one of bona fide acquisition, and the spouse’s rights will be pursued through a claim for compensation.

3. the difficulty of recovery of different types of property

  1. Real estate that has been transferred: if the buyer obtained in good faith and registered, the way to recover the house is basically closed, and the main relief is to claim compensation from the unauthorized disposal party and claim less points in the divorce division; if the buyer is malicious or related, he can still apply for confirmation of invalidity, cancellation of registration and return.
  2. Immovable property that has not completed the transfer of ownership: you can file an objection to registration (a lawsuit is required within 15 days), apply for property preservation and disclose the ownership dispute to the buyer, which prevents the transaction from being completed; if the contract has not been performed, you can also claim that the party who disposes of it is in breach of contract without authorization and request to confirm that the contract cannot continue to be performed.
  3. Special movable property such as vehicles: take delivery as the requirement of real right change and registration as the requirement of confrontation. If the vehicle has been delivered to the buyer, it depends on whether the buyer is in good faith; if it has not been delivered, the vehicle shall be sued and preserved in time, and the hope of recovery is greater.
  4. Deposits and general movable property: the circulation is fast and the verification is difficult. The key point is to apply to the court as early as possible to obtain the bank running water and fixed transfer records, and claim the division, return or preservation of the transferred funds to prevent the second transfer.
  5. Equity interest in a limited liability company registered in the name of a party: Equity has both personal attributes, and unilateral transfer also involves other shareholders' preemptive rights and other corporate governance rules (Article 84 of the new Company Law). It is difficult for spouses to recover equity directly, and in practice, it is mostly converted into the division of the transfer price and the claim of compensation, and in the division of divorce, it is requested to divide the party who disposes without authorization.

4. Evidence List: Recoverable Critical Materials

The following materials are recommended to be collected in order. The more complete they are, the more likely they are to be accepted by the court:

  1. The result of the inquiry of the real estate ownership certificate and register book proves that the real estate is jointly owned by husband and wife and the registration status;
  2. sales contract, net sign record, payment voucher, check the authenticity of transaction price and payment;
  3. The market transaction price or assessment report of similar houses in the same area in the same period is used to prove whether the price is obviously low;
  4. The identity information of the buyer and its relationship with the unauthorized party (proof of kinship, industrial and commercial information of affiliated companies) are used to examine whether there is malicious collusion;
  5. Evidence that the buyer knows the marital status and the property is shared by the husband and wife (chat records, intermediary records, spouse's presence certificate, etc.);
  6. procedural materials such as transfer registration time, objection registration acceptance receipt, property preservation ruling, etc;
  7. The flow of unauthorized house money transfer by the disciplinary party points to the claim of less division or division again in Article 1092 of the Civil Code.

5. operational steps and timelines

  1. The first time fixed evidence: get real estate registration files, sales contracts and transfer flow, and save screenshots of the network listing and intermediary records to clarify the transfer status.
  2. If the ownership has not been transferred, the objection registration should be made immediately: apply for the objection registration to the real estate registration agency with the identity certificate and the ownership dispute materials, and block the completion of the registration; keep in mind that the lawsuit must be filed in the court within 15 days, otherwise the objection registration will be invalid.
  3. Apply for property preservation: apply for freezing the received house sales money, and apply for sealing up the untransferred real estate to prevent the money from being transferred and the real estate from being disposed of again. Preservation requires the provision of security and options can be assessed.
  4. Choose the litigation path: if the divorce litigation is in progress, you can claim compensation and less points together in the case; if you have not filed for divorce or have divorced, you can file a separate lawsuit for property damage compensation, confirmation of the invalidity of the contract or the division of property after divorce.
  5. Apply for execution after obtaining the effective document: apply for execution in time and provide property clues continuously.

The application for property preservation usually requires the provision of a guarantee, which can be issued by the insurance company for the preservation of liability insurance, cash or real estate guarantee, and the scope of preservation is limited to the litigation request, which can not exceed the standard of seizure. When filing a case, you can submit the "Property Preservation Application", the ownership certificate and the transaction flow together. If you need to preserve the house price or real estate, the sooner you apply, the sooner you can complete the freeze before the transfer.

In the whole process, speed is the chip: once the house money is transferred out of the country, squandered or used to repay personal debts, the difficulty of recovery will increase exponentially.

Calculation and Request Method of 6. Damages

  1. calculation basis: when claiming compensation from the unauthorized disposition party, the loss is usually calculated based on the market value of the disposed property, after deducting reasonable taxes and necessary expenses, according to the spouse's share. Where the transfer price is significantly lower than the market price, the market price, rather than the actual transaction price, should be used as the benchmark to prevent the other party from using a low transfer price to reduce the amount of compensation. Reasonable expenses incurred in protecting one’s rights, such as appraisal fees, litigation fees, and preservation fees, may be claimed together with the corresponding receipts.
  2. Request Method: You can claim compensation together in the divorce proceedings and request to dispose of the party without authorization to share less property, and you can also file a separate claim for property damage compensation or property division after divorce. If the divorce proceedings are still in progress, it is usually more efficient to deal with them together to avoid repeated proof. If the property problem is complicated and the evidence is still being collected, an application may be made to suspend the handling of this part and sue separately. In any case, care should be taken to exercise the right in a timely manner from the date when the right was or should have been known to be impaired, so as to avoid delays leading to difficulties in proof or the expiration of the statute of limitations.

Example (fictitious): The market value of the house shared by the husband and wife is 3 million yuan, and one party sells it to a bona fide buyer at an obviously low price of 1.8 million yuan and has already transferred the ownership. The spouse cannot recover the house and turns to claim for compensation. The compensation is based on the market price of 3 million yuan after deducting the transaction tax of about 100000 yuan, and claims the loss of about 1.45 million yuan according to the principle of half and half in common, and can also request less points for unauthorized disposition in the divorce division. If the buyer is a close relative of the disposition party and the price is obviously low, the path of invalid confirmation and return of the house will be changed-the proof objects and calculation logic of the two paths are completely different, you have to choose before you start the fight.

7. Execution and Follow-up

After winning the judgment, they should apply for execution in time and provide property clues continuously. The money that has been transferred can be traced and recovered. If the other party delays on the grounds that there is no property available for execution, it may apply to the court to investigate the account transactions, operating income and hidden assets of its close relatives. If one party transfers property to a third party at an obviously unreasonable low price after divorce to damage the spouse's claim, the creditor's right of revocation may be considered when the conditions are met (Articles 538 and 539 of the Civil Code). Throughout the process, the sooner you fix the flow and transaction evidence, the greater the room for subsequent recovery-which is the realistic reason why you should act immediately after discovering an anomaly.

8. common mistakes

  1. Misunderstanding: The contract of sale of the common property sold by one party in the marriage is null and void. Positive solution: If the buyer is in good faith, pays reasonable consideration and has been registered, it constitutes a bona fide acquisition, the contract is valid, the house cannot be recovered, and the buyer can only claim compensation from the unauthorized disposal party and claim less points.
  2. Misunderstanding: If the house is registered in my name, I can sell it at will. Correct solution: For the common property registered in the name of one spouse, the unilateral disposition is still the disposition without right, and the damage to the spouse's rights and interests must be held responsible.
  3. Myth: It doesn’t matter if I sell to relatives at a lower price. Positive solution: low price plus related relationship is the core evidence to identify malicious collusion, which is easy to be confirmed invalid and returned.
  4. Misunderstanding: It's too late to find out selling a house after divorce. Positive Solution: You can request for another division (Article 1092 of the Civil Code), and you can also file a lawsuit for property division or damages after divorce. Note that the three-year limitation period starts from the date of discovery.
  5. Common Misconception: Argue with the other party first, then file a lawsuit after the argument. Correct solution: the house payment and the state of the real estate are changing every minute. The correct order is to fix the evidence first, register the objection and preserve, and then negotiate or litigate.

Class Case Reference: In the case of Zhu Mou 1v. Hu Mou over property disputes after divorce, one party transferred the joint property of husband and wife to their relatives without authorization during marriage. The court determined that the transfer contract has been confirmed as invalid by a final and effective judgment.If the divorce judgment fails to deal with the property, the other party shall have the right to request division, and then the property shall be owned by one party and the other party shall be paid a consideration of 4266023.15 yuan, indicating that if the common property is disposed of without authorization, the other party may claim to confirm that the disposition is invalid and claim rights and interests in the division. Trial Court: Ninghai County People’s Court Case Number: (2019) Zhe 02

26Min Chu 6426 No.

9. Frequently Asked Questions

My spouse sold the jointly owned marital property without my consent. Can I sue to get it back?

It depends on whether the buyer obtained it in good faith: if the buyer has not transferred the ownership, the buyer is not in good faith or colludes with the disposing party in bad faith, it can be sued for recovery; if the buyer is paid in good faith and has been registered, it is difficult to recover the house, so it should turn to claim for compensation and less points.

What conditions must be met for bona fide acquisition?

When the transferee is transferred in good faith, the transferee is transferred at a reasonable price, and the registration is completed in accordance with the law (movable property is delivered). Only when the three items are possessed at the same time can the bona fide acquisition be constituted (Article 341 of the Civil Code).

found that the house price has been transferred, how to stop loss?

Immediately sue and apply for property preservation, freeze the account and real estate of the disposing party; transfer the flow of money to track the flow of money; if necessary, apply for the court investigation order to find out the financial transactions between him and his close relatives.

If you didn't deal with the money from the house sold during the divorce, can you claim it after the divorce?

Yes. You can file a lawsuit for property division after divorce or damages. With reference to the caliber of the property dispute after the divorce between Ningbo Chen Moumou and Xiang Moumou ((2011) Yong Ning Min Chu Zi No. 1335), you can still claim property that has not been divided within marriage after divorce, and pay attention to exercising it in a timely manner from the date when you know that your rights have been damaged.

Can the house money be used to pay off gambling debts, usury or squandering money?

Yes. The unauthorized disposition party uses the house sale money for gambling, squandering or repaying personal debts, which belongs to the transfer and squandering of the common property of husband and wife (Article 1092 of the Civil Code). When divorce is divided, it may claim to have less or no division. If the flow of money can be found, it can also be recovered through litigation and enforcement procedures, and the court can be applied to investigate its financial transactions with close relatives.

Practical Experience of 10. Lawyer

found that the spouse without authorization to sell the house, equity transfer, the first reaction is often "can not get the house back". Judging from the experience of handling the case, whether it can be recovered or not depends on two levels: if the buyer is in good faith, has paid reasonable consideration, and has already transferred the ownership, the house usually cannot be recovered, and only the party who disposes of it without authorization can claim less points at the time of divorce and division; Only if the buyer colludes with the other party, the price is obviously low or the ownership has not been transferred, can he have the opportunity to claim the return or confirm the punishment is invalid. Therefore, it is easy to choose the wrong direction in the litigation request.

What determines success or failure is whether the fixed speed and preservation of evidence are timely. Three things should be done in the first place: to obtain and keep the disposal records and capital flow of real estate, equity and vehicles, and to judge whether the transaction is true or false and whether it is obviously low; For those who have not yet transferred their ownership, apply for seizure or objection registration as soon as possible, and "freeze" the real estate in a recoverable state; For those who have already transferred their ownership, turn to collect and overturn the counter evidence obtained in good faith, for example, the buyer's relatives or affiliations with the other party, the transaction price significantly below the market price, and the abnormal direction of the money. The earlier these clues are caught, the more it will affect whether they ultimately "want things" or "want money".

The prosecution should be coordinated with the overall layout of the divorce. The litigation request can prepare two sets of plans: if it can be recovered, it is requested to confirm that the disposition is invalid and return it; If it cannot be recovered, the focus should be on compensation for losses and the other party should be claimed to have less points in the division. Negotiations can take advantage of the other side's most feared point-the collusive transaction of the related person afraid of being implicated, afraid of low-cost transfer will be detected, according to which to strive for discount compensation in exchange for cooperation with the transfer or one-time compensation. Don't show all the evidence cards you have during the negotiation period, and don't be impulsive to sign an agreement to give up the recovery. Once it is written in black and white, it will be difficult to claim it later.

If one party in the marriage sells the common property without authorization, the spouse has the right to sue. The key is to choose the right path: first judge whether the buyer obtained it in good faith, and then decide whether to "chase the house" or "claim + less points". In the order of action, fixed evidence, objection registration and property preservation must run before the transfer of the house price. On the evidence, the difference between the transaction price and the market price, the relationship between the buyer and the disposition party, and whether to complete the registration are the three fulcrums for the court to judge good faith. For the sold property, the spouse's loss will not be lost because of the "transfer"-claims, less points, re-division and avoidance of the right of action still constitute a complete chain of relief, the earlier the start, the greater the recovery space.