Insights

Can Ningbo Agreement Divorce Regret After Receive Divorce Certificate

Ningbo Author：LuXu WANG

After Mr. Zhang and Ms. Li agreed to divorce and received the divorce certificate, Mr. Zhang regretted the content of the property division, thought the division was unfair, and wanted to know whether the divorce agreement could be revoked. In reality, it is not uncommon to "go back on one's word after receiving the certificate", but it is necessary to distinguish the object of going back on one's word: for the divorce itself, the marriage relationship will be dissolved after receiving the divorce certificate, and one cannot go back on one's word (if one wants to remarry, one must register the marriage again); The content of property division can be requested to be revoked or changed by the court within the legal time limit, but it must be proved that there are legal circumstances such as fraud and coercion the agreement, if there is a major change in the situation, a separate lawsuit may be filed for change. It is not enough to overturn the agreement you have signed.

1. Divorce Itself Unrevocable: Dissolution and Restoration of Identity Relationship

After the divorce by agreement is registered by the marriage registration authority and the divorce certificate is obtained, the marriage relationship will be dissolved. According to Article 1076 of the Civil Code, if both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration at the marriage registration authority in person; after a 30-day cooling-off period and both parties jointly apply for a divorce certificate, The marriage relationship is extinguished. The termination of a relationship of status is final:

  1. Divorce Certificate is the legal certificate of dissolution of marriage, and there is no procedure of "annulment of divorce" after receiving it;
  2. If you regret the divorce itself and want to restore the relationship between husband and wife, you can only re-register the marriage with the other party, which belongs to "remarriage" in law ";
  3. If one party does not consent to remarriage, the other party cannot compel it—their personal relationship cannot be “forcibly restored” through litigation.

Therefore, the so-called "repentance" can only be aimed at the property and children clauses in the divorce agreement, such as property division and child support, but not at the divorce itself.

2. property division can be repented: one-year exclusion period and statutory reasons

Article 70 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's the People's Republic of China of China stipulates: "If the husband and wife go back on their word on the issue of property division after divorce by agreement, and request to cancel the property division agreement, the people's court shall accept it. After reviewing the case, if the people’s court finds no evidence of fraud, coercion, or other such circumstances at the time the property division agreement was entered into, it shall dismiss the parties’ claims in accordance with the law."

Elements are disassembled as follows:

  1. The acceptance conditions are loose: the court should accept the case if it goes back on the property division and requests revocation after divorce by agreement-it will not refuse to file a case because of "having received the certificate.
  2. Strict conditions for success: acceptance is not equal to support. The core of the court's review is whether there are legal circumstances such as fraud and coercion at the time of the conclusion of the agreement.
  3. Duration: The right of formation of revocation ownership shall be exercised within one year from the date when the cause of revocation is known or should be known in accordance with Article 152 of the Civil Code; if the revocation right is not exercised during the reprimand period of more than one year, the revocation right shall be eliminated, and the request is difficult to obtain support. The period of revocation in the case of material misunderstanding is 90 days (from the date on which the cause of revocation was known or should have been known).
  4. "obviously unfair" does not mean revocable: Divorce agreement is the overall arrangement of comprehensive child support, property and emotional factors, and the court generally does not apply the "obviously unfair" rule of ordinary contract to revoke easily; it requires the repentant party to prove fraud and coercion, with higher standards.

In practice, it is often said that "prosecution within one year", the exact meaning is that within the one-year exclusion period of the revocation right-the right of revocation shall be exercised within one year from the date when the cause of fraud and coercion is discovered, and the overdue revocation right shall be eliminated.

3. Under what circumstances can it be revoked: detailed breakdown of fraud and duress scenarios

The "fraud, coercion" that can support revocation, the following forms are common in divorce scenarios:

  1. Fraud of concealing property: One party conceals common property such as bank deposits, real estate, equity and financial management, and induces the other party to sign an agreement to give up the division without knowing it. This is the most common cause of revocation requests in practice, and the claimant must prove the specific property and concealment of the other party.
  2. Fraud of fictitious debt: one party colludes with the third party to forge the IOU and inflate the common debt, forcing the other party to divide the debt with property.
  3. Personal threat or mental coercion: force the other party to accept unfavorable terms by force, threat, divulging privacy and harming children.
  4. Taking advantage of another party’s vulnerable or precarious situation.: One party is induced to sign an obviously disadvantageous agreement when it is seriously ill, in economic difficulties or in a special weak state. Although it belongs to "other circumstances", in practice, the court's examination is strict and still takes fraud and coercion as the main line.

Proof is the winner or loser of the revocation lawsuit: for those who advocate fraud, the evidence of the other party's concealment of property (bank records, ownership registration, chat records) should be produced; for those who advocate coercion, the alarm records, medical records, witness testimony, etc. the mere fact that "I didn't think clearly at that time" and "now I feel that I have suffered a loss" cannot be withdrawn.

Before choosing the relief path, it is suggested to do "comparison between the two cases": if the disputed property is not mentioned in the divorce agreement at all and belongs to the "not involved" missing property, it is enough to take the division path (Article 83 of the (I) for the Interpretation of Marriage and Family Compilation), without the need to prove the other party's fraud, and the burden of proof is relatively light; if the property has been treated unfairly in the agreement (e. g., the main property is returned to the other party at a very low discount), the path of avoidance must be taken to prove that there was fraud, coercion, etc. at the time of the conclusion of the agreement. The two paths can also be claimed in combination: a direct request for division on the grounds that "the agreement did not deal with the property", and a request for the revocation of the relevant provisions and a claim that the other party had less points on the grounds that "the other party's concealment of property constitutes fraud. When prosecuting, the request is designed as a hierarchy of "revocation + re-division" or "direct division + less division of the other party", leaving room for discretion for the court, which is more secure than a single path. In practice, many parties confuse the two cases, the "missing points" as "revocation" to play, or because of missing a year of exclusion period to lose the right of revocation, or because of the wrong direction of proof-first define the property in the agreement "processing status", and then decide the path, is the first step of the homework.

4. the boundary of irrevocability: disposed property and gifted children clause

  1. Property that has been expressly dealt with in the Agreement cannot be claimed for division: The property that has been clearly owned or abandoned by one party in the divorce agreement cannot be divided by the other party on the grounds of "missing points"; Only the common property not involved in the divorce can be divided by another lawsuit according to Article 83 of the (I) Interpretation of Marriage and Family.
  2. The terms of the gift of children in the divorce agreement cannot be revoked at will.: The provision of giving the common property (such as real estate) to the children is an integral part of the divorce agreement, which is mutually conditional with the dissolution of the marriage relationship, and the judicial practice tends to determine that it cannot be revoked arbitrarily. This caliber is reflected in the "Answers to Several Questions on the Trial of Marriage and Family Cases" (Gao Fa Min I [2016] No. 2) and the open case of Zhejiang Court (Yinzhou Court Case, reported by Zhejiang Legal Daily on February 16, 2022).
  3. Child support can be claimed separately: the arrangement of child support in the divorce agreement is not a final word-if the direct support party's support conditions deteriorate and fails to fulfill the support obligations, or if the children over eight years old are willing to live with the other party, they can sue separately to change the support relationship according to Article 56 of the (I) Interpretation of Marriage and Family.

5. operational steps

  1. Determine the object of repentance: whether it is repentance to divorce itself, property division or child support -- the relief paths of the three are completely different.
  2. Collect evidence of legal reasons: collect evidence of bank records, ownership registration, chat records, alarm records and so on around fraud (concealment of property, fictitious debt), coercion (threat, coercion).
  3. calculation time limit: bring a lawsuit within one year from the date when you know or should know the cause of cancellation (within 90 days of major misunderstanding), and the overdue cancellation right will be eliminated.
  4. filing a lawsuit: filing a revocation lawsuit with the basic people's court of the defendant's domicile or habitual residence, requesting to revoke the property division agreement and re-partition.
  5. Preservation and execution: If real estate or deposit is involved, you can apply for property preservation to prevent the other party from disposing of it; after winning the case, re-divide and handle the transfer according to the effective document.

The materials that should be prepared when filing a lawsuit: the complaint for cancellation (stating the terms of the agreement requesting cancellation and the re-division plan), the original divorce certificate and divorce agreement, the list of evidence proving fraud coercion and the original (bank flow, ownership registration query results, chat records, alarm records), and the identity information of both parties. In terms of jurisdiction, it is generally accepted by the basic people's court of the defendant's domicile or habitual residence; if the real estate is re-divided, it can also be claimed to the court where the real estate is located in practice based on the circumstances of the case, and the specific case review shall prevail. The litigation request proposes to adopt the structure of "main position and reserve position": the main position requests the cancellation of the relevant provisions and re-division, and the reserve request does not involve the direct division of property, which is supported by the court; at the same time, it applies for property preservation to prevent the other party from transferring the disputed property during the litigation. It should be noted that the boundary between the lawsuit of revocation and the lawsuit of change-the request for revocation of the content of the agreement can be revoked, only the method of performance needs to be adjusted (e. g. the transfer period, the payment method is unreasonable) can be changed, the court will deal with the nature of the terms.

6. common mistakes

Misunderstanding 1: You can go back on your divorce after getting a divorce certificate. Positive solution: The divorce status relationship cannot be restored, and the marriage has been dissolved after obtaining the certificate; if you want to remarry, you must re-register. Only provisions such as the division of property can be "reversed", and there must be legal causes such as fraud and coercion.

Misunderstanding 2: If you think the division is unfair, you can cancel the agreement. Positive explanation: legal reasons such as fraud and coercion need to be proved. Divorce agreement is a comprehensive arrangement, the court does not because of "obviously unfair" easily revoked, the evidence can not reject the claim.

Misunderstanding 3: There is no time limit for repentance, and you can sue at any time. positive solution: the right of revocation has a legal period-it shall be exercised within one year from the date when the cause of revocation is known or should be known (ninety days of major misunderstanding), and the overdue right of revocation shall be eliminated.

Myth 4: The house allocated to the children in the divorce agreement can be returned at any time. positive solution: the terms of giving children in the divorce agreement and the dissolution of the marriage relationship are mutually conditional, and judicial practice tends to determine that they cannot be revoked at will (the standards of the courts in Zhejiang and Ningbo are the same).

Class Case Reference: After divorce by agreement and obtaining the certificate, you must claim within the legal time limit if you renege on the division of property. The People's Court of Yinzhou District, Ningbo City found that the plaintiff claimed to divide the marital property, but did not claim within one year after the divorce, and the period of exclusion has been exceeded. The defendant did not conceal or transfer the property. At the time of the divorce, the property had been reasonably disposed of, and rejected All his claims. Trial Court: Ningbo Yinzhou District People's Court Case No.:(2019) Zhejiang 02

12Minchu No. 10610

7. FAQ

After receiving the certificate, he found that he had been concealing his deposit. Can he divide it again?

Can. It may be claimed that the other party's concealment of common property constitutes fraud, and the property division agreement may be revoked and re-divided. It may also be claimed that the deposit is not involved in the property at the time of divorce, and shall be divided according to Article 83 of the Interpretation (I) Marriage and Family. The proof and time limit of the two paths are different, and it is suggested that the priority be claimed within one year of the right of revocation.

When does the "one year" for the revocation of the property division agreement start?

from the date on which the reason for the revocation was known or ought to have been known, not from the date on which the certificate was obtained. For example, if it is discovered in the third year after the license is obtained that the other party has concealed the property in that year, it may still claim revocation within one year from the date of discovery; however, if it is more than five years from the date of the agreement (the longest period in Article 152 of the Civil Code), the right of revocation is extinguished.

It is written in the agreement that "the property has been divided and will not be investigated against each other". Can it be claimed again?

as the case may be. If the clause is waived in general and there is no fraudulent coercion by the other party, it is difficult to support the claim of division; if it can be proved that there was fraudulent coercion at the time of signing, the clause may still be requested to be revoked; and property expressly not covered by the agreement may be divided separately. The more general the clause is expressed, the more it is necessary to judge the true meaning in the context of the signature.

Can a custody agreement be revoked?

The support arrangement can be changed due to the change of circumstances: if the direct support party suffers from serious disease, disability and inability to support, does not fulfill the support obligation or has maltreatment, and if the child over eight years old is willing to live with the other party and the party has the support ability, he can sue to change the support relationship without the restriction of "the agreement has been signed.

8. Practical Insights from a Lawyer

“Changing one’s mind after getting the marriage certificate” is quite common, but it’s important to clarify who the change of heart is directed toward. For the divorce itself, the marriage relationship will be dissolved after the registration is completed and the divorce certificate is obtained. If you want to get back together, you can only re-register the marriage. For the division of property, only when it can be proved that there were legal circumstances such as fraud and coercion in the agreement signed at the beginning can you have the opportunity to request cancellation or change. It is not enough to think that "the distribution is unfair. Therefore, as soon as the party concerned said excitedly that he wanted to overturn the agreement, I would first ask him to calmly sort out whether he was cheated, forced, or agreed after weighing himself.

If there is any clue of fraud or coercion, it is necessary to fix the situation at that time: the content of the threatened exchange, the recording of the conversation, the situation of the witnesses present, the time and occasion of being forced to sign, and the communication record afterwards, the more specific the better. At the same time, we should pay attention to the time limit of the claim. Such requests cannot be made at any time, and if they are delayed for a long time, they may not even be able to get in. For the part of child support, if the situation changes significantly later, it belongs to another path that can be claimed separately. It should not be confused with the first two items, and the demands should be made more clearly separately.

The threshold of repentance is not low, so the more realistic approach is to make up for the places that were not clearly written and completely written at the beginning with supplementary agreements while still being able to negotiate.Before talking, first find out whether the other party is willing to talk again and what step it can take, and then decide whether to go through the procedure or continue the negotiation. I would also like to remind those who are ready to sign that it is much easier to think carefully and completely before signing than to go back on our word afterwards, especially when it comes to complex property such as real estate and equity. Don't be afraid of trouble. Spending half a day more may save several years of disputes.

Agreement The "repentance" after obtaining the certificate of divorce is clearly defined in law: the divorce itself can not be repentant, the property division must be revoked within one year of the exclusion period on the grounds of fraud and coercion, and the child support can be claimed separately due to changes in circumstances. The advice to the parties is: check the property clearly and write down the terms clearly before signing the divorce agreement, and don't sign the "muddleheaded agreement" for the sake of asking for quick signing; If the other party is found to be concealing or coercion after obtaining the license, fix the evidence in time and sue within the legal period. The property that has been explicitly abandoned or disposed of in the agreement should not be turned over afterwards. It is better to focus on the legal claims that property and not involved.