What are some common invalid provisions in divorce agreements in Ningbo?
When many couples sign divorce agreements, they will agree on some seemingly reasonable but possibly invalid clauses in order to divorce as soon as possible-"Give me the child when you remarry", "Never let the other party look after the child", "The child belongs to me, and you don't need to pay a penny of alimony". When writing, they are happy, and only after divorce do they find that the clauses are not effective and disputes continue. Conclusion first: The agreement in the divorce agreement that restricts personal rights, deprives visitation rights, exempts support obligations, harms the interests of third parties, and violates the mandatory provisions of the law is invalid; the effective agreement should be based on the principle of legality, fairness and enforceability, and the invalid clause does not have legal effect even if it is written in.
1. legal basis and validity review framework The general rules of the validity of
clauses are found in Articles 143 and 153 of the Civil Code: the conditions for the validity of civil juristic acts include that the actor has corresponding capacity for civil conduct, the true expression of intention, does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs; civil juristic acts that violate mandatory provisions are invalid, and those that violate public order and good customs are equally invalid. Divorce agreements have both identity and property attributes. Among them, provisions involving personal rights and legal obligations are particularly strict in terms of effectiveness: freedom of marriage (Article 1041 of the Civil Code), obligation to raise parents and children (Articles 1067 and 1085), and right to visit (Article 1086) are all legal rights and obligations, and the parties cannot exclude or give up by agreement.
Specific to the invalid situation, it can be summarized into six categories: one is the agreement that restricts the freedom of divorce or remarriage, such as "no remarriage after divorce" "if remarriage is...", which violates the freedom of marriage and is invalid; the other is the agreement that deprives the right of visitation, which is a legal right, and the right of visitation of the party who does not directly raise children cannot be deprived by agreement, and the other party has the obligation to assist; the third is the agreement to exempt the maintenance obligation. If the "waiver of maintenance" and "never ask for payment of maintenance" harm the interests of the children, it may be deemed invalid and will not prevent the children from claiming in the future (Article 16 of the Interpretation (II) on Marriage and Family of the Civil Code: the agreement is binding on both parties, but the children can still request payment when the economic situation of the direct supporter deteriorates significantly or the necessary expenses of the children increase significantly); the fourth is the agreement to force children to change their surnames and restrict the choice of surnames. Children's surnames can follow their father's surnames or mother's surnames according to Article 1015 of the Civil Code and cannot be forced by agreement. Fifth, the agreement that harms the interests of creditors and maliciously divides all property to one party and leaves all debts to the other party to avoid debts is invalid to creditors, and creditors may request cancellation in accordance with Articles 538 and 539 of the Civil Code (Interpretation 2, Article 3); sixth, other agreements that violate the mandatory provisions of the law or violate public order and good customs.
Breakdown of 2. situations: Which "conventions" are most likely to be invalid
Split according to the common dispute points: first, the clause of "the other party remarries and changes the custody right" -- the ownership of custody right should be judged according to the principle of the most favorable to the minor children, which can not be invalid on the condition of parents' marital status; the way of handling is to agree on the negotiation and litigation mechanism of changing the custody relationship, rather than "automatic change". Second, "one party waives the right to visit" or "permanently waives the right to visit"-the right to visit is a manifestation of both rights and obligations, and the claim can still be restored in accordance with the law after the agreement is waived, and the clause does not have the effect of deprivation. Third, "a one-time buyout of alimony and no subsequent accountability"-is binding on the expenses incurred, but does not exempt the children from reasonable requests that are indeed necessary in the future. Fourth, “all property to one party and all debts to the other”—if such an arrangement is intended to evade debts, the creditor may rescind it; even if no debt evasion is involved, any agreement regarding external debts is not enforceable against creditors, and the party bearing the debts may subsequently seek reimbursement in accordance with the agreement (according to the Ningbo Intermediate People’s Court). Fifth, “agreement to gift real estate to children but with the right to revoke at any time” — pursuant to Article 20 of Interpretation II, if a divorce agreement provides for the transfer of jointly owned property to the children, a request by one party to rescind such an agreement prior to the transfer of rights shall not be supported by the court (unless the other party consents), except in cases involving fraud or coercion. Sixth, property-related agreements such as “leaving with nothing” or “the at-fault party receives a smaller share”—are generally valid in principle, but those that are manifestly unfair (e.g., depriving one party of basic living security) may be subject to adjustment.
3. Case Perspective: Disposal of Invalid and Valid Terms
Zhao and Qian agreed to divorce, and agreed that their daughter would be raised by Qian and Zhao would pay 2000 yuan monthly maintenance. At the same time, it was agreed that "if Qian remarried, his daughter would be raised by Zhao and Qian would not be allowed to visit". After Qian remarried, Zhao sued to change his support and prohibit Qian from visiting. The court found that the custody change clause conditional on remarriage restricted the freedom of marriage and violated the principle of most beneficial to minor children, and was invalid; the right of visitation could not be deprived, and Zhao asked for a ban on visitation without legal basis. The court re-examined the care arrangements in accordance with the principle of being most beneficial to the minor children and clarified Qian's right of visitation. The deduction suggests that the invalid clause does not have effect, but it does not mean that the other party "writes in vain"-the court will return to the statutory principle to deal with it again, and the process will be time-consuming and labor-intensive.
Ningbo judgment is consistent with the above logic: according to the open case of Yinzhou Court (reported by Zhejiang Legal Daily on February 16, 2022), the property donated to the children in the divorce agreement cannot be revoked at will, which reflects the Ningbo court's respect for the validity of the agreement; according to the public judgment of Ningbo Jiangbei Court, in the property dispute between Chen and Zhang after their divorce, the plaintiff requested to revoke part of the divorce agreement, rejected due to insufficient evidence-once the agreement is registered and filed, the threshold for estoppel and revocation is very high; In the case of property dispute between Li mou and Zhang mou after divorce heard by Ningbo court, the property division clause of the agreement is legal and valid. the court supports the confirmation that the property belongs to the plaintiff and orders to cooperate with the transfer of ownership-the legal and valid clause can be supported and executed by the court.
4. Common Misunderstandings and Positive Solutions
Myth 1: Any divorce agreement is valid, regardless of how it is drafted. Correct Solution: The articles that violate the mandatory provisions of the law or public order and good customs are invalid (Article 153 of the Civil Code), and the articles that restrict remarriage, deprive visitation, exempt support and so on are written in vain.
Misunderstanding 2: You can agree to never let the other party watch the children. Correct solution: the right of visitation is a legal right and cannot be deprived by agreement; for those who refuse to assist in the visitation, the other party can sue the dispute over the right of visitation and apply for enforcement.
Misunderstanding 3: You can agree not to pay alimony and make a clean break. Correct solution: The obligation to support is a legal obligation, and the agreement to waive the maintenance fee may be invalid if it damages the interests of the children, and the children can still request it according to law when necessary (Article
16of Interpretation II).
Myth 4: Own all the property and the debt to the other party. The creditor can't help me.Correct answer: Internal debt‑allocation provisions in a divorce agreement are ineffective against creditors. Creditors may assert their rights against both parties and request the revocation of property‑related clauses intended to evade debts; moreover, malicious attempts to evade debts may be subject to judicial sanctions.
5. Checklist: Review each item one by one before signing.
① Examine article by article whether personal rights are restricted (remarriage, birth again, family name, freedom of residence);② Confirm that the maintenance clause does not harm the interests of children: the amount of maintenance fee is reasonable, the visiting arrangement is enforceable, and divorce is not exchanged for "giving up"; ③ Property division to avoid obvious unfairness and malicious evasion of debts, and specify and specify the ownership of property rights, transfer period and liability for breach of contract; ④ Debt treatment distinguishes between common debt and personal debt, and external debt states "who will pay off" and agrees on the right of internal recourse; ⑤ finalize the arrangement of giving children property and paying off debts with houses after consulting professionals, and clarify the transfer time and liability for breach of contract; ⑥ perform (transfer and payment) as soon as possible after the agreement is signed, and keep the performance certificate; ⑦ find the other party's fraud, coercion or the agreement is obviously unfair, claim revocation or change within the statutory time limit.
Consequences of 6. invalid clauses and relief paths What to do after the
clause is deemed invalid is the most concerned issue of the parties. According to Article 156 of the Civil Code, if the partial invalidity of a civil legal act does not affect the validity of the other parts, the other parts are still valid-the invalid provisions in the divorce agreement are usually personal rights, and the provisions on the division of property and the assumption of debts generally continue to be valid, and there is no need to "push back and start all over again". The rules for dealing with matters involved in invalid clauses are as follows: the principle that the return of custody is most conducive to the redetermination of minor children; The right of visitation shall be restored according to law and exercised by the party who does not directly support it; The maintenance fee shall be renegotiated or applied for determination according to the actual needs of the children. If the overall arrangement of "kidnapping" by invalid clauses (such as giving up property in exchange for the other party's non-visit) is obviously unfair, the condition), the corresponding clauses may be appealed.
The relief path is divided into three layers: the first layer is the negotiation and correction-both parties sign a supplementary agreement on invalid matters, and rearrange the maintenance, visit and property performance, with the lowest cost; the second layer is the confirmation lawsuit-if one party does not cooperate with the negotiation, the other party can appeal to the court to confirm the terms are invalid, and make new arrangements on matters such as child support and visit; the third level is revocation and compensation-if the agreement is signed by fraud, coercion, or if the terms are obviously unfair, it may request revocation and re-division within the statutory period (subject to the one-year exclusion period, see the article "Revocation of divorce agreement"). For invalid agreements that have been fulfilled (if one party has not seen the child for a long time in accordance with the "abandonment of visitation" clause), the resumption of the exercise of rights will not be obstructed by the other party; for the part that has not been paid in accordance with the "exemption of alimony" clause, the child may still request in accordance with the law (Interpretation II, Article 16). The reminder to the signing stage is that the invalid clause does not become valid because of "both parties agree". It involves the content of legal rights and obligations. The only correct way to write is to write legally-uncertain clauses. Ask clearly before writing.
In addition, what is worth reminding is the control of proof and limitation: the party who claims that the clause is invalid should collect the background evidence (coercion, fraud and obviously unfair materials) when signing the agreement; the lawsuit of confirming invalidity is generally not limited by the one-year exclusion period of the right of revocation, but if it claims revocation at the same time, it must still abide by the one-year exclusion period of Article 152 of the Civil Code; the invalid provisions involving maintenance and visitation may be retreated at any time in accordance with the legal principle, and there is no problem of expiration. The claim should be specific-to confirm the invalidity of a provision and to rearrange the matter in question, so as to avoid a general request that would render the court unable to decide.
As for the uncertain terms, it is better to delete or rewrite them into enforceable expressions than to leave invalid agreements to create future disputes. Even if the clause is found invalid, as long as the evidence and appeal are clear, the relief can still be expected. What is really terrible is not to write the wrong clause, but to write the wrong clause at a loss and drag it to the annihilation of the evidence.
Case Reference: The provision in a divorce agreement stating that “each party shall be responsible for his or her own debts and liabilities” is valid as between the parties. The People's Court of Jiangbei District of Ningbo City held that the creditor's rights involved in the defendant were donated by his father and the subject of the donation was the defendant's personal property. Moreover, the divorce agreement stipulates that the creditor's rights and debts under their respective names shall be borne by each other. The creditor's rights shall be included in a package. The plaintiff's request to confirm that they are the common property of husband and wife and enjoy half of their shares shall not be supported. Trial Court: Ningbo Jiangbei District People's Court Case No.:(2014) Yongbei Minchu Zi No. 165
7. FAQ
Do invalid terms in the agreement affect other terms?
Generally, it does not have an effect. If the invalid part does not affect the validity of the other parts, the remaining provisions shall remain valid (Article 156 of the Civil Code), and the legal provisions such as property division and debt assumption shall continue to be performed.
Will the Civil Affairs Bureau check the terms of the agreement?
The registration authority mainly conducts formal examination, and does not make substantive judgment on whether the terms are invalid or obviously unfair; therefore, the invalid terms may still cause disputes after filing. The key to avoiding "filing is to bury mines" is to review them one by one or to invite professionals to review them before signing the contract.
has signed an agreement with invalid clauses, can it be changed?
Yes. Both parties may sign a supplementary agreement to amend or delete the invalid terms; If a new arrangement is reached on alimony, visit, etc., it shall be fixed and implemented in writing; If the negotiation fails, the court may be requested to confirm the invalidity of the terms and re-deal with the relevant matters.
The divorce agreement stipulates a high amount of liquidated damages. What if one party fails to perform?
If the liquidated damages clause is legal and effective and does not violate the mandatory provisions, the breaching party can be sued to pay according to the agreement; if the liquidated damages are claimed to be too high, the breaching party shall provide evidence, and the court can adjust it with reference to the actual loss. Involving real estate transfer, payment obligations, can apply for continued performance and apply for enforcement, liquidated damages request and continued performance can be claimed in parallel, do not have to choose one.
It is written in the agreement that the child follows the mother's surname. Can the other party enforce it if he goes back on his word?
The surname agreement involves personal rights, and the enforcement power is limited: children's surnames can follow the father's surname or the mother's surname according to Article 1015 of the Civil Code. Whether to change or not depends on the interests and wishes of children (adult children decide by themselves). Such agreements are difficult to achieve through enforcement, it is recommended that they be resolved through negotiation, and the agreement should avoid the inclusion of personal content that expects coercive force.
Practical experience of 8. lawyers
In order to get a divorce as soon as possible, many people write down pleasing clauses in the agreement: if you remarry, you will have your children back, you will never let the other party visit you, and you will not have to pay any alimony for the children. These agreements were signed happily, only to find that they could not fall to the ground after divorce. Judging whether an agreement is effective depends on whether it restricts personal rights, deprives visitation rights, exempts support obligations, harms the interests of third parties, or violates mandatory regulations. In these cases, writing into the agreement will not have effect. It is much easier to go through one article after another before signing the contract than to file a lawsuit afterwards to correct it.
The review can be done from two perspectives.One is to see if the terms are punishing rights that are not allowed by the law, such as exempting all alimony payments, attaching unreasonable conditions to visitation rights, and using remarriage as a switch for children's ownership. Such arrangements are often difficult to implement. The second is to see if there is a clear and operable way to perform the terms, such as how to transfer the property, how to pay the compensation in several transactions, and how to deal with a breach of contract. A vague agreement will become a dead letter when the other party goes back on its word. The key to improving the stability of the agreement is to replace the non-executable expression with a specific arrangement with nodes and liability for breach of contract.
If the agreement has been signed, it is not necessary to think that it is completely invalid. Usually an agreement is invalid, does not of course affect the validity of other provisions, can be corrected can be negotiated to correct, involving the division of property and there is a real problem, but also through litigation claims again divided or corrected. What needs to be reminded is not to sign clauses such as giving up alimony and giving up known property in order to get a quick divorce, which are difficult to turn back in the future, and also to avoid signing a division arrangement that is obviously out of balance when the mood is impulsive. One more step before signing can often save a long and expensive dispute after a divorce.
Divorce Agreement is a legal document that "one piece of paper will determine the universe", and the legal provisions are the bottom line: the agreements that restrict personal rights, deprive visitation, exempt support and damage the interests of creditors should not be written; legal, fair and enforceable are the drafting principles. It is recommended to check the list of invalid terms in this article one by one, involving large amounts of property and complex maintenance arrangements first please professional review and then sign. For Ningbo families, local registration and adjudication tend to respect legal agreements, and only when the terms are written in a standardized manner can the agreement become a "talisman" rather than a "minefield".