Insights

Ningbo divorce property division party does not appear in court can be sentenced?

Ningbo Author：LuXu WANG

After the divorce, one party discovered that there were still jointly owned marital assets that had not been divided and therefore filed a lawsuit with the court seeking a division of those assets. The other party believes that as long as they do not attend the court hearing, the court will not rule on the division of property, and thus refuses to appear in court or submit a defense. This situation is not uncommon in practice. So, can the court divide the marital property when one party is absent? To state the conclusion upfront: yes, it can. In the case of divorce property division, if the defendant refuses to appear in court without justifiable reasons after being legally summoned, the court may hear the case in absentia and decide to divide the joint property of the husband and wife in accordance with the law, and the defendant's failure to appear in court shall not affect the plaintiff's claim of property rights in accordance with the law. Absence does not mean that "the court cannot judge", but means that the right to reply, produce evidence and cross-examination is waived, and the result of the judgment may be more unfavorable to the absent party. This paper combines the "the People's Republic of China Civil Procedure Law" (hereinafter referred to as the "Civil Procedure Law") with the judicial interpretation of marriage and family, dismantling the applicable conditions of default judgment, the plaintiff's proof requirements and the main points of property division.

Legal basis of 1.: Statutory conditions of default judgment

The system of default judgment is based on Article 147 of the Civil Procedure Law: "If the defendant refuses to appear in court without justifiable reasons after being summoned by a summons, or withdraws from court midway without the permission of the court, the judgment may be made by default. "At the same time, Articles 146 and 148 respectively stipulate the default judgment rules for the plaintiff's absence to be treated as withdrawal and for the plaintiff's absence when the defendant counterclaims. There are three requirements for the application of Article 147: First, "summoned by summons"-the court must serve the summons on the defendant in accordance with the law, and the legal service procedure is the prerequisite for the default judgment; If the defendant's whereabouts are unknown, it shall be served by public announcement (it shall be deemed to have been served after 30 days from the date of the announcement, and the court shall hold a hearing after the expiration of the announcement). Secondly, “without justifiable reason”—if the defendant has a justifiable reason (such as serious illness requiring hospitalization or force majeure) for being unable to appear in court, they may apply for an adjournment of the hearing or authorize a litigation agent to appear on their behalf; the court should not render a default judgment. If appearing in court is genuinely impractical, the defendant may apply to participate in online proceedings or submit written responses. Third, "can be judged by default"-"can" is an authorized provision. The court does not have to judge by default according to the circumstances of the case. However, for a defendant who must appear in court (for example, a divorce case must appear in court himself), if he refuses to appear in court without justifiable reasons after being summoned twice, he may be confined to court (Article 149 of the Civil Procedure Law). With regard to the division of property, post-divorce property disputes are classified as ordinary civil cases; the defendant’s failure to appear in court does not preclude the court from rendering a judgment based on the evidence presented by the plaintiff and any evidence obtained ex officio.

Legal consequences of 2. absence: waiver of procedural rights does not amount to waiver of substantive responsibility

if the defendant does not appear in court, what he waives is the procedural rights such as defense, proof, cross-examination and debate, rather than the substantive obligation. There are three specific consequences: first, the court determines the facts based on the evidence submitted by the plaintiff and the evidence obtained according to law-if the defendant fails to appear in court for cross-examination, it shall be deemed to have given up the right to cross-examination, and the plaintiff's evidence may be accepted if it is true and legal after the court reviews it. Second, if the defendant does not submit a reply or provide property clues, the court can only determine the scope of property based on the plaintiff's claim and investigation results, the absentee party may lose the opportunity to claim the scope and value of the property because of "not speaking"; third, the default judgment has the same legal effect as the judgment against the bench, and if the defendant refuses to perform after the judgment takes effect, the plaintiff may apply for enforcement, and the absentee party may also be included in the list of persons who have broken their promises. The special feature of divorce cases lies in the handling of identity relations: in principle, whether the relationship between husband and wife has indeed broken down and whether to grant divorce requires one's statement in court. The court where the defendant is absent will carefully handle the divorce itself, but the request for property division can still be judged according to evidence. Property dispute cases after divorce do not involve identity relations, and the application of default judgment is more direct.

3. Plaintiff's burden of proof: Absence does not equal "winning without lifting a finger."

Although the defendant’s absence reduces adversarial proceedings, the plaintiff still bears the burden of proof—namely, to demonstrate that the property is jointly owned by the spouses and to establish its value. The court will not automatically accept all of the plaintiff’s claims simply because the defendant fails to appear in court. The property evidence to be prepared by the plaintiff includes: property right registration information of real estate and purchase contract; Vehicle driving license and purchase certificate; Bank deposit account information and running water (if it cannot be obtained by itself, apply for a court investigation order or investigate according to the application); Position records of securities accounts, funds and financial products; Balance of individual accounts of housing provident fund and endowment insurance; Equity and company investment information (industrial and commercial registration); other property interests (insurance cash value, debt certificates, etc.). The part that cannot be proved may not be supported by the court due to unclear facts-if the plaintiff cannot even provide clues to the property, the judgment will lack basis based on the speculation that "there may be. Therefore, the winner or loser of the defendant's absence case is in the plaintiff's evidence organization: the more complete the property list, the more sufficient the ownership evidence, the more objective the value assessment, the higher the proportion of judgment support. What needs to be reminded is that the property claimed by the plaintiff in the property dispute after divorce must be "the common property of husband and wife not involved in the divorce" (Article 83 of the (I) of the Supreme People's Court on the Interpretation of the Marriage and Family Code of the Civil Code of the People's the People's Republic of China of China). The property already handled by the divorce agreement or judgment cannot be claimed repeatedly unless there are revocable circumstances such as concealment or fraud.

Limitation and duration of 4.: Undivided property is not subject to the three-year limitation

Regarding the limitation of property division after divorce, two situations should be distinguished. Common property of husband and wife not involved in divorce (Article 83 of Interpretation 1): It belongs to the confirmation and division of common property. Judicial practice generally holds that it is not limited by the three-year ordinary statute of limitations and can be sued whenever it is found. Because one party hides, transfers, sells, destroys, squanders common property or forges common debts, the other party requests another division (Article 1092 of the Civil Code): According to Article 84 of Interpretation 1, the limitation period of action is three years, calculated from the date of discovery of the parties, and the right to win may be lost if the claim is overdue. The boundary between the two situations is often confused in practice: the plaintiff should first judge whether the claimed property belongs to "unprocessed" or "concealed" in the prosecution, and then determine whether it is subject to the limitation of time and choose the cause of action; In cases where the defendant is absent, the court will still take the initiative to review whether the property belongs to the scope not dealt with at the time of divorce, and the repeated claims of the handled property will be rejected. In addition, the service procedure for the defendant itself affects the trial cycle: the announcement of the defendant's whereabouts is unknown will expire in 30 days, plus the defense period and the evidence period, the trial cycle of the case will be significantly lengthened, and the plaintiff should have time to expect.

Breakdown of 5. situations: deal with them according to the reasons for absence and the types of cases

According to the reason of absence and the type of case, four kinds of cases can be divided. First, the defendant refused to appear in court without justifiable reasons after being summoned: the court was absent from the trial and decided to divide the property according to the plaintiff's evidence and the results of the investigation; the defendant may appeal within 15 days after receiving the judgment, and the judgment that fails to appeal within the time limit shall take effect. Second, the whereabouts of the defendant are unknown: the court announced the service of a copy of the indictment and the summons, the expiration of the announcement shall be deemed to have been served, and the judgment shall be heard in absentia; The judgment can also be served by public announcement. After it takes effect, the plaintiff can apply for compulsory execution. If no property is found in the execution, the execution can be terminated and resumed after the property is discovered. Third, the defendant is unable to appear in court for legitimate reasons: he may apply for an extension of the trial, or entrust an agent ad litem to appear in court, or apply for online litigation. Fourth, in divorce proceedings, I must appear in court but refuse to appear in court: if I refuse to appear in court without justifiable reasons after two summonses, the court may summon by arrest; If the identity relationship is confirmed, the default judgment must be extra cautious, and the property division part can still be dealt with according to the evidence. The four types of situations jointly remind the parties that the "strategic value" of absence is extremely low-it can not prevent the judgment, but also lose the opportunity to cross-examine and defend, and the rational approach is to appear in court or at least submit written opinions and evidence.

6. deduction case: the complete process of the absent party losing because of "not talking"

A couple in Ningbo agreed to divorce in 2021, but did not deal with the balance of a car registered in the man's name and the man's provident fund account purchased by the woman during her marriage. In 2024, the woman sued for the division of the above-mentioned property, and the court served a summons on the man in accordance with the law. The man believed that "there is no way to judge before the court" and refused to appear in court and did not submit a reply. The court heard in absentia: according to the car purchase contract, payment flow and provident fund inquiry materials submitted by the plaintiff, it was determined that the two properties were formed within marriage and were not processed at the time of divorce. it was decided that the car belonged to the man, the man compensated the woman for half of the value of the car purchase and depreciation, and the man paid half of the difference in the provident fund within a time limit. After the judgment became effective, the man failed to comply, so the woman applied for compulsory enforcement. The court lawfully froze his bank account and deducted funds. This example shows that the absence does not prevent the referee, but instead makes the absent party lose all the right to speak on the scope, value and division of the property, and ultimately passively compensated according to the plaintiff's claim and the results of the court's investigation.

7. Common Misunderstandings and Positive Solutions

Misconception 1: If you do not appear in court, the court cannot render a judgment. Correct Solution: If the defendant refuses to appear in court without justifiable reasons after being summoned legally, the court can make a judgment by default; the judgment can also be heard by default after the announcement of unknown whereabouts is served.

Myth 2: You can protect your assets by not appearing in court. Correct solution: If you don't appear in court, you will lose the chances of defense, proof and cross-examination. The court will determine the property mainly based on the plaintiff's evidence and investigation results, and the absent party will be more likely to get an adverse judgment.

Misunderstanding 3: You can't divide property after divorce for more than three years. Correct solution: the division of the joint property of husband and wife not involved in the divorce is not subject to the limitation of three years of litigation; if the other party requests the division again because of the concealment of property, it shall be claimed within three years from the date of discovery.

Misunderstanding 4: If the defendant is not in court, the plaintiff can win if he says it casually. positive explanation: the plaintiff still needs to prove that the property belongs to the husband and wife jointly and the value; if the proof is insufficient, the court may not support the corresponding request because the facts are not clear.

Myth 5: The default judgment can be overturned at will. Correct solution: The default judgment has the same effect as the opposite judgment, and can only be remedied through appeal or retrial procedure; for the judgment served by public notice, the defendant can apply for retrial within the legal time limit, but it must be proved that the procedure is illegal or there are legal reasons.

8. bill of materials and operating steps

As the plaintiff claims to divide the property and deal with the absence of the defendant, it is suggested to prepare according to the following steps:

  1. Sort out property clues: real estate, vehicles, deposits, securities, accumulation fund, insurance, equity, etc. under the name of the other party, make a list and indicate the ownership evidence;
  2. Obtain evidence of ownership: property ownership certificate, driving license, bank account, securities position, provident fund inquiry form, insurance policy and so on; if you can't obtain it by yourself, you can apply to the court for investigation order when you sue or investigate according to the application;
  3. Proof of “unresolved”: Submit the divorce agreement, divorce judgment, or mediation statement to demonstrate that the property to be divided was indeed not addressed during the divorce; if alleging concealment by the other party, provide additional evidence of such concealment and be mindful of the three-year statute of limitations.
  4. Filing the lawsuit and cooperating with service of process: File the lawsuit with a court having jurisdiction and cooperate with the court to effect service on the defendant (if the defendant refuses to accept service, the court may serve by leaving the documents at the defendant’s residence; if the defendant’s whereabouts are unknown, apply for service by public notice).
  5. Appearing in court and making up the evidence: the plaintiff himself appears in court to make a statement and give evidence, and if the court gets the property clues according to the application, follow up the investigation result in time;
  6. Enforcement: If the other party fails to comply after the judgment takes effect, apply for compulsory enforcement and provide leads regarding their assets; if the current enforcement is terminated, apply to resume enforcement upon discovering new assets.

class case reference: the defendant controlled bank deposits and financial products totaling 945900 yuan. after the court ordered him to declare his property, the defendant refused to declare it and refused to show up in court. the court still tried the case in absentia according to law, found that he had hidden and transferred common property, and ordered to pay the plaintiff 626500 yuan. That is, the failure of one party to appear in court does not affect the court's default judgment and the division of the joint property of the husband and wife. Trial Court: Cixi City People's Court, Zhejiang Province Case No.:(2019) Zhejiang 02

82Minchu No. 7662

9. FAQ

What will the court do if the defendant refuses to appear in court?

If he refuses to appear in court without justifiable reasons after being summoned by a summons, the court may hear the case by default and make a judgment; if he must appear in court in the divorce proceedings, he may still refuse to appear in court after being summoned twice. The absentee party loses the right to defend the evidence, and the judgment may be more unfavorable to it.

If the defendant’s whereabouts are unknown, can a lawsuit still be filed to divide the property?

Can. The court announces the service of the indictment and the summons (the announcement period is 30 days), and the judgment shall be heard in default after the expiration of the notice of service; after the announcement of the judgment becomes effective, the plaintiff may apply for enforcement.

What does the plaintiff need to prove when suing to divide the property?

To prove that certain property constitutes marital joint property not addressed in the divorce and to establish its value: submit evidence of ownership, the divorce agreement or court judgment, as well as bank statements and contracts demonstrating that the property was acquired during the marriage. If the evidence is insufficient, the corresponding claim may not be upheld.

Is there a statute of limitations for property division in divorce cases?

A claim for division of jointly owned property that was not addressed during divorce is not subject to the three-year statute of limitations; however, a request for re‑division on the grounds that the other party concealed or transferred assets must be asserted within three years from the date of discovery (Article 84 of Interpretation I). Failure to do so may result in the loss of the right to prevail in litigation.

Can I appeal or cassate a case after a judgment in absentia?

An appeal may be filed within fifteen days from the date of receipt of the judgment; if no appeal is filed, the judgment becomes final and binding. If the judgment is indeed erroneous, relief may be sought through a retrial procedure. For judgments served by public notice, an application for retrial must satisfy the statutory grounds and time limits.

10. Practical Legal Insights

There is a persistent misconception: some people believe that as long as they do not appear in court, the court will be unable to handle the property matters.In fact, if the court refuses to appear in court without justifiable reasons after being legally summoned, the court may hear and deal with it in absentia. Absence means that the opportunity to defend, provide evidence and cross-examine is voluntarily given up, and the result is often more unfavorable to the absentee. Therefore, "hiding" is not a strategy, but to hand over the initiative to others. The more you feel reasonable, the more you should come to court to speak clearly and let the referee hear your version., Many things are said face to face and through the material, the feeling is completely different.

For the party who advocates division, the other party's failure to appear in court does not mean that he can win by lying down, because the burden of proof is still on his side. The scope, ownership and value of the property of the certificate can not be less: before the prosecution, the bank running water, real estate and vehicle registration, equity and provident fund and other clues as far as possible to check, list the specific property requested to be divided, to avoid missing items because the other party is not present. For those who can't contact or refuse to accept the materials, they should cooperate with the court to complete the delivery, don't let the program card waste time at the door, and take the initiative to follow up the necessary procedures.

If you are the party to be sued, the correct way is not to avoid it, but to respond to the lawsuit on time and explain truthfully. If you have real difficulties, you can submit your opinions in writing or apply for extension to win what you should fight. We should also know that some common property that has not yet been dealt with will not be completely sealed off because of this treatment, and may still be reproposed in the future. Instead of being beaten passively, it is better to sort out the property status first, explain the position first, and let yourself stay at the poker table all the time before there is room for discussion.

In the divorce property division lawsuit, the defendant's absence does not affect the court hearing, but the plaintiff's evidence and property clue application directly determine the division result. For the plaintiff: the property list should be complete, the ownership evidence should be true, the investigation application should be timely, and the fact that "the divorce was not dealt with" should be clearly stated; For the defendant: absence is the next step-to make a statement in court or at least submit a written reply before having the opportunity to affect the scope, value and division ratio of the property. Litigation is a contest of evidence, not a game of "who does not attend, who takes advantage.