Ningbo divorce agreement did not become a divorce can be used as a court basis

The two sides have negotiated the conditions and signed the divorce agreement. When they go to the marriage registration office to go through the formalities, one party goes back on his word, and the other party takes the agreement to sue for divorce and asks the court to divide the property according to the agreement-this is a very common situation in practice. The conclusion is: the provisions on the division of property in the divorce agreement belong to the agreement on the effective condition of divorce by agreement or divorce mediation in the people's court. If the divorce registration is not completed in the end and one party clearly indicates that the agreement is not recognized in the divorce proceedings, the court shall determine that the property and debt handling agreement has not taken effect and re-divide the joint property of husband and wife in accordance with the legal principle.

In other words, the signed divorce agreement itself is not equal to the final property distribution result, and its effect depends on whether the condition of divorce is fulfilled. If the conditions are fulfilled, the agreement shall be binding on both parties; if the conditions are not fulfilled and the agreement is reversed in the lawsuit, the agreement shall return to the starting point and the court shall deal with it again in accordance with the provisions of the law. This determines that the parties need to be carefully evaluated at the signing stage and cannot make concessions at will in order to divorce as soon as possible.

1. legal basis

article 69 of the (I) Interpretation of Marriage and Family of the Civil Code stipulates that if the parties reach a property and debt settlement agreement conditional on divorce by agreement or mediation in the people's court, if the divorce is not completed and one party goes back on his word in divorce proceedings, the people's court shall determine that the property and debt settlement agreement has not taken effect and make a judgment in accordance with the provisions of articles 1087 and 1089 of the Civil Code according to the actual situation. This provision directly answers this question and is the core basis for judging the validity of such agreements.

Article 1087 of the Civil Code stipulates that in the event of divorce, the common 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; Article 1089 stipulates the rules for the settlement of the joint debts of the husband and wife in the divorce. When the agreement does not enter into force, the court redistributes it in accordance with the principles set out in these two articles, taking into account the source of the property, the contributions of the parties, the maintenance of the children and the situation of the debt.

2. core points

1. Why is it still possible not to count after signing?

A divorce agreement is a typical conditional legal act, with the condition that both parties complete the divorce by agreement or divorce through court mediation. Prior to the achievement of the conditions, the division of property in the agreement is not in effect, and either party may repent. This is obviously different from the rule that the ordinary contract takes effect once it is signed. The reason is that the divorce agreement has the attribute of identity relationship, and the law needs to leave room for the parties to go back on their word before the final dissolution of the marriage relationship.

It should be noted that the agreement is not effective and the agreement is invalid are two concepts. The non-entry into force of the agreement means that the conditions have not yet been fulfilled and the court does not judge according to its content; the invalidity of the agreement means that the content violates the mandatory provisions of the law or violates public order and good customs. If both parties have already registered for divorce, the divorce agreement will take effect, after which one party wants to overturn the property division clause, can only prove that there is fraud, coercion and other circumstances at the time of the conclusion of the agreement, and make a request within the statutory time limit, the difficulty is much higher than in the divorce is not completed when the regret.

2. What may be referenced in the agreement

although the property division clause has not yet entered into force, the agreement itself remains an important litigation material. The agreement on the scope of property, property clues, the parties' self-identification of a property, and the idea of child support can be used as evidence in litigation to help the court find out the full picture of the couple's joint property, and to a certain extent reflect the true meaning of both parties.

In turn, concessions at the signing stage could have adverse consequences. For example, in order to facilitate an agreed divorce, one party acknowledges the existence of certain debts in the agreement, or waives the requirement for the division of a property, which may be submitted as evidence by the other party in subsequent proceedings. Therefore, when signing a divorce agreement, one should seek truth from facts and avoid making statements that are inconsistent with the facts in an emotional or eager state.

3. need to pay attention to the boundary conditions

if both parties have already registered for divorce, the divorce agreement has come into effect, and if one party requests re-division on the grounds of change in performance ability and subsequent repentance, the court generally does not support it, and relief may be obtained only if it can be proved that there were legal circumstances such as fraud and coercion at the time of the conclusion of the agreement, and if it is claimed within the legal period.

If the two parties reach a mediation agreement under the auspices of the court and the court issues a mediation statement during the litigation process, the mediation statement will be enforceable after it takes effect. If one party fails to perform, the other party can directly apply for enforcement. This is in effect with the privately signed divorce agreement. There is a fundamental difference. In addition, the content of the divorce agreement related to personal relations, such as the willingness to divorce and the ownership of child custody, cannot be directly used as the basis for court judgments, and the court will still make independent judgments based on the principle of benefiting minor children.

Practical Experience of 4. Lawyers

A signed divorce settlement is not a check that can be cashed at any time. The agreement on how to divide the property is usually tied to the divorce-it only takes effect if it is really divorced through registration or court mediation. If one party goes back on its word when going through the formalities and the other party takes the agreement to sue, and the other party explicitly disclaims it in court, then the property arrangement in this agreement is likely to be considered not effective and the court will re-divide it in accordance with the principles prescribed by law. Understanding this, the hand will not be so loose when signing the agreement.

Therefore, before putting pen to paper, you should ask yourself: are you willing to accept the concession in this plan under the premise that the divorce may not be able to be done? If you are pushed away by the mentality that the other party will not go back on his word, it is very risky. On the other hand, if the core appeal is to set the conditions and results as soon as possible, the more stable approach is to go through court mediation and make the negotiated content into a mediation document. Once the mediation document comes into effect, it will have enforcement power, and the other party will not be able to rely on it afterwards. Signing a paper agreement to think everything is all right is the most common illusion in this type of dispute.

In case you have already signed it and the other party goes back on its word, don't panic. Although this agreement may not be a direct basis for judgment, it is still the starting point of your negotiation and an important process material-it at least explains which step the two sides have talked about and where their respective bottom lines are, which is very useful in litigation mediation. What needs to be done at this time is to keep the other party's commitments and contacts in the negotiation process, reorganize the property and evidence, and prepare for another round of talks or prosecution according to the legal principle. What can really lock the result is never a signature, but the effective document and the implementation of the landing.