Who owns the house after the fake divorce in Ningbo

In order to avoid purchase restrictions, reduce the down payment ratio or obtain the qualification to buy a house, some couples choose to divorce to buy a house first and then remarry later. Once feelings change, home ownership often becomes the focus of controversy. The first thing to be clear is that there is no such thing as a fake divorce in the law. As long as the two parties in the marriage registration office for divorce registration, the marriage relationship is dissolved, the divorce agreement on the division of property and debt processing agreement will take effect, after which either party claims that the divorce was false, need to bear a strict burden of proof, in practice to obtain support is very difficult.

The ownership of houses purchased after divorce mainly depends on three elements: whether the purchase time is after the divorce registration, under whose name the house is registered, and where the purchase funds come from. The conclusion that the three elements together point to is usually that the house purchased and registered in his own name after divorce belongs to his personal property, and the other party cannot claim re-division on the grounds that he has agreed to remarry.

1. legal basis

article 10176 of the Civil Code stipulates that if a husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration at the marriage registration authority in person; Article 1068 stipulates that the marriage registration authority If it is ascertained that the divorce is indeed voluntary and has reached an agreement on matters such as child support, property, and debt handling, it shall register and issue a divorce certificate. These two articles establish the formal elements of divorce registration, and the effect of dissolution of the marriage relationship occurs as soon as the procedure is completed.

Article 69 of the Interpretation (I) for Marriage and Family of the Civil Code stipulates that if the parties reach an agreement on the disposal of property and debts on the condition of divorce by agreement or mediation in the people's court, if the divorce is not completed and one party repents in the divorce proceedings, the agreement has not taken effect. On the other hand, once the divorce registration has been completed, the property disposal part of the agreement has taken effect. The provisions of Article 1063 of the Civil Code on personal property before marriage determine that the house acquired after divorce is still personal property after remarriage. In addition, if there are statutory circumstances such as fraud or coercion, the parties may request the revocation of the property division clause within the statutory time limit, but the threshold of proof is very high.

2. core points

1. How to judge the ownership of the house

the first step is to look at the time node. The purchase contract and payment signed after the completion of divorce registration belong to the post-divorce behavior and are not directly related to the acquisition of property during the existence of the marriage relationship. The second step is to see the registration name. In whose name the house is registered is the direct basis for judging the attribution, and what is registered in the name of one party belongs to the personal property of that party in principle. The third step is to look at the source of funds. If the purchase money comes from the property that has been divided into all of them in the divorce agreement, the conclusion of the ownership of the house is more stable.

The act of remarriage does not in itself change the nature of the house. The remarriage is equivalent to the re-establishment of the marriage relationship. The house acquired by one party before the remarriage belongs to his personal property before the remarriage and is not converted into common property as a result of the remarriage. If the two parties jointly repay the loan of the house after the remarriage, the other party can claim compensation for the amount paid for the joint repayment of the loan after marriage and its corresponding value-added portion, which is a two-level problem with the ownership of the house itself.

2. Why is it difficult to advocate false divorce?

When the marriage registration authority handles the divorce registration, it will inquire about the divorce wishes of both parties and form written materials. The divorce agreement is also signed by both parties. In this context, it is necessary to provide evidence sufficient to overturn the written materials, such as chat records, audio recordings, written agreements or disinterested witness testimony that clearly record the parties agreed to remarry after buying a house. It is difficult to meet the standard of proof by word of mouth or by speculation.

Even if it can be proved that the parties agreed to remarry after buying a house, the court will usually distinguish between the identity relationship and the property relationship. In terms of identity relations, divorce registration takes effect once it is completed, and cannot be automatically restored due to subsequent repentance; in terms of property relations, the division clause in the divorce agreement is also binding if there are no legal circumstances such as fraud or coercion. This also means that there is a high risk of placing major property interests on the other party's promise that they will remarry as agreed.

3. need to pay attention to the boundary conditions

if the division of the joint property of the husband and wife in the divorce agreement is obviously unbalanced, one party gets very little or even cleans out of the house, and the other party buys the house with the property, the affected party can focus on examining whether there is fraud or coercion at the time of the conclusion of the agreement, and make a request within the statutory time limit. The viability of such claims depends on the adequacy of the evidence, and late submissions are usually difficult to support.

There are also two types of real-world risks that need to be addressed. One is the purchase restriction and credit risk, through divorce to obtain the qualification to buy a house or loan concessions, may touch the local real estate regulation and control policies and the bank's credit review requirements, the consequences shall be borne by the parties themselves. The other is the risk of debt and execution, after the divorce, one party in his own name to buy a house and registered in his own name, the house may still be because of the divorce before the joint debt of the husband and wife or other personal debt to be applied for execution, divorce registration does not cut off the debt liability.

Practical Experience of 4. Lawyers

there is no such thing as a "false divorce. As long as the divorce registration is done in the marriage registration office, the marriage relationship is dissolved, and the agreement on property and debt in the divorce agreement also takes effect. Afterwards, I want to advocate that "it was just a formality at the time", and I have to bear a heavy burden of proof. In practice, there is very little support. Therefore, when someone makes arrangements for "divorce first, buy a house, and then remarry later", it is important to think clearly: once the registration is completed, the legal consequences will be the same as the real divorce, and one cannot expect to overturn it with the phrase "we are fake.

Who owns the house bought after divorce mainly depends on three points: whether the house bought after the divorce registration, whose name the house is registered in, and where the money comes from. Purchased in one's own name, registered in one's own name, and purchased with one's own funds are usually personal property, and the other party cannot request a re-division on the grounds that they have verbally agreed to remarry. Therefore, in this type of arrangement, financial transactions and registration information are the two most critical lines of evidence, and the party who intends to repent or fight for in the dispute should start with the funds, payment records, and registration materials.

Judging from the experience of handling cases, what really hurts about such disputes is that they are not equal. Often one party earnestly contributes according to the agreement and waits for the remarriage, while the other party starts a new business. At that time, as long as the other party takes out the divorce registration and agreement, it can claim that the two parties have already dissolved the relationship. Therefore, my suggestion is: try not to do what you can not do; If it is really necessary to do it, write clearly in writing and keep the evidence on the conditions, time limit, ownership of capital contribution for house purchase and how to deal with it if one party does not remarry. It is better to agree on the worst-case scenario in advance than to prove a relationship that does not legally exist afterwards.