If a divorce agreement is signed in Ningbo and the property registration is amended, does that automatically make the property personal property?- Zhiheng Law Firm

Ms. Wang and her husband divorced, with their agreement stipulating that the jointly owned house would be assigned to Ms. Wang, and the property ownership transfer was duly registered. Later, she wanted to know whether the apartment was entirely her personal property. Direct conclusion: if the divorce agreement stipulates that the house is owned by one party and the property right change registration has been completed, the house is determined to be the personal property of that party and can be used against the other party and its creditors; However, if only the agreement is signed and the ownership is not transferred, the agreement will only have the effect of creditor's rights, and there will be no change in real rights. The house may still be separately disposed of by the other party or sealed up by its creditors. Signing an agreement is only the first step, and transfer registration is the key node for changes in property rights.

1. Legal Basis: Division of Labor Between Registration Effectiveness and Contractual Binding Force

This case involves the interplay of two sets of rules, neither of which can be dispensed with:

Effective Rules of Real Property Registration: Article 209 of the the People's Republic of China Civil Code stipulates that the establishment, alteration, transfer and elimination of real property rights shall take effect after registration according to law; without registration, it shall not take effect, unless otherwise provided by law. Article 214 provides that the establishment, modification, transfer, and termination of real property rights shall take effect upon registration in the real property registry, as required by law. The house belongs to real estate, and its ownership change shall be subject to registration.
Binding Effect of Marital Property Agreements: Article 1,065 of the Civil Code provides that any agreement between spouses regarding property acquired during the marriage as well as premarital property shall be legally binding on both parties. The clause in the divorce agreement that "the house belongs to Ms. Wang" belongs to the consent of property disposition. According to the interpretation of the Supreme People's Court on the application of the Marriage and Family Chapter of the the People's Republic of China Civil Code, (I) the second paragraph of Article 69, it is legally binding on both parties-it is the "relationship between the two parties", that is, the other party has the obligation to cooperate with the transfer of ownership.

Combination of two: what the divorce agreement gives to Ms. Wang is "the creditor's right to request the other party to cooperate with the transfer of ownership", and what the change of the real estate register gives to Ms. Wang is "the real right to the world". The former depends on the other side to fulfill, the latter depends on oneself to obtain. This is precisely the dividing line that determines the answer to the question, “Once I sign the agreement, does the house become mine?”

Breakdown of 2. situations: four scenarios according to performance status

The same statement, “The house belongs to me,” can have vastly different legal consequences depending on the status of its performance:

has agreed and transferred: the real right has been transferred, the house is owned by one party, and will not be divided in the event of divorce; due to the completion of registration, it can be used against other creditors of the other party in principle, and the latter cannot seize and execute the house.
Agreed but not transferred: one party only has the creditor's right to ask the other party to fulfill the transfer obligation. The house is still registered in the names of both parties or the other party and may face three risks: the other party sells or mortgages without authorization, is seized by the other party's personal creditors, and the other party refuses to cooperate with the transfer. At this time, you should promptly file a lawsuit to seek confirmation of ownership and obtain a court order for the transfer of title; where necessary, apply for property preservation.
Agreed to be assigned to one party, but the property is still subject to a mortgage.: The mortgage must be processed first. Article 106 of the Civil Code stipulates that the mortgagor may transfer the mortgaged property during the mortgage period, but the mortgagor shall be notified; in practice, the bank usually requires the settlement of the loan to release the mortgage, or agrees to change the borrower, handle the transfer of the mortgage, and it is difficult for the registration institution to handle the transfer registration before obtaining the bank's cooperation.
Agreed to damage the interests of creditors: If the divorce agreement gives the main property to one party free of charge and obviously damages the realization of the creditor's rights of the other party, the creditor can request the court to cancel the property division act according to Article 538 of the Civil Code (the cancellation right shall be exercised within one year from the date when the cancellation reason is known or should be known, and shall not be eliminated within five years from the date when the act occurs, see Article 541). Such "false divorce real debt evasion" arrangements, property terms may be revoked, the house is eventually still used to pay off the debt.

Triple risks and responses during the non-transfer period of the 3.

The most common and dangerous state in practice is the state of "agreement signed and registration delayed:

Risk one: the other party sells or pays separately. The property remains registered in the name of one or both parties, and the other party may enter into another sales contract with a third party or establish a mortgage. If a third party acquires the property in good faith, the original party can only assert contractual liability against the other party and will find it difficult to recover the property. Response: transfer as soon as possible, or handle objection registration, advance notice registration, and timely prosecution.
Risk 2: Sealed up by the other creditor. When the other party has a foreign debt to be enforced, the property registered in its name may be seized and auctioned by the court. Although one's own party may raise an objection to the execution of an outsider according to the divorce agreement, whether the execution can be excluded depends on the comprehensive judgment of the time of seizure, whether it has actual possession and whether there is any fault, and there is uncertainty-the interpretation of the execution objection rules other than Article 70 of the (I) requires higher proof. Early transfer is the bottom of the pot.
Risk 3: The other party repents and does not cooperate. If the other party delays or refuses to cooperate with the transfer of ownership, it may file a lawsuit for property dispute after divorce with the court according to the divorce agreement, request confirmation of ownership and order the transfer within a time limit; if the other party still fails to perform after the judgment takes effect, it may apply for compulsory execution, and the court shall directly handle the transfer of ownership by issuing a notice of assistance to the real estate registration agency.

4. operational steps: complete process from agreement to transfer

The agreement should be written clearly: in the divorce agreement, the house location, certificate number, ownership, transfer period and liability for breach of contract should be clearly defined, so as to avoid the overhanging expression such as "the house property issue should be negotiated separately.
Dealing with mortgage: if the house has mortgage, first communicate with the loan bank, confirm whether to settle the loan, change the borrower or handle according to the local transfer policy with mortgage, and obtain the bank's written consent or repayment settlement certificate.
handle transfer registration: bring the divorce agreement, divorce certificate (or effective legal documents), identity certificate and the original real property right certificate, and apply for transfer of ownership to the real property registration institution where the house is located; divorce property analysis registration shall be exempted from deed tax and other taxes according to regulations (deed tax and individual tax are not levied on the transfer of personal divorce property analysis property, and the specific tax and registration standards shall prevail).
Verification and Record-Keeping: After the transfer is completed, verify the new real estate ownership certificate to ensure that the owner and co-ownership details are correct. Properly retain the divorce agreement, divorce certificate, tax payment receipt, and transfer acknowledgment.
the treatment of the other party's non-cooperation: if the negotiation fails, the lawsuit shall be filed and the property preservation shall be applied in time to prevent the house from being transferred or sealed up during the lawsuit.

5. common mistakes

Misunderstanding 1: After signing the divorce agreement, the house will belong to you.. Real estate must be registered for changes in property rights, and the agreement only creates claims for transfer, and the two cannot be confused.
Misunderstanding 2: You can fight against the third person without transfer of ownership.. Before registration, the other party sold and mortgaged the house to a bona fide third party, and it was difficult for the other party to recover the property itself.
Misunderstanding 3: Bank consent is not required for transfer. A mortgage mortgage mortgage property, must first deal with the mortgage relationship, the bank does not cooperate with the registration is difficult to complete.
Misconception 4: Just because the court ruled that the house belongs to me, it automatically means the property has been transferred to my name.. After the judgment confirms the ownership, it is still necessary to go through the change registration (or the court assists in the execution), and the original right holder is still in the real estate register before the registration is completed.
Misunderstanding 5: The divorce agreement can freely "divide" the property to one party to avoid the debt. A gratuitous or manifestly unreasonable disposition of property that harms the interests of creditors may be revoked by creditors and may also be found to be void of malicious collusion.

execution relief path when the 6. untransferred property is seized

The stage of "the agreement has written that the house belongs to me, but the registration has not been done yet" is sealed up by the court, which is the most difficult situation in the property dispute after divorce. The relief path and the key points of proof are as follows:

Propose an outsider's execution objection: after the house is found to be sealed up, it should submit a written objection to the execution court in time after receiving the execution notice or knowing the seizure, claiming that the house has been owned by the party according to the divorce agreement; the court ruled to suspend the execution or reject it after examination, and the outsider's execution objection lawsuit can be filed if he is not satisfied with the ruling.
The common situation of the establishment of the objection: if the divorce agreement is signed and the house is actually occupied first, the debt is formed later or the creditor is sealed up later, and the transfer of ownership is not handled due to one's own fault, the court tends to support the exclusion of execution; on the contrary, if the seizure is first, or the transfer of ownership is delayed for a long time, or the house is still occupied and used by the other party, the difficulty of objection increases significantly.
Evidence organization: the original divorce agreement, the divorce certificate, the evidence of actual occupancy (water and electricity property payment, household registration, decoration records), and the explanation of the reasonable reasons for failing to transfer the ownership in time (such as the other party's failure to cooperate, the bank mortgage is not released), etc., constitute a complete chain of objection evidence.
Synchronous claim for transfer of ownership: after the objection is successful or the judgment confirms the ownership, the registration agency applies for the change of real estate unilaterally with the effective legal documents, and the registration agency will handle it according to the entrustment; if the other party still does not cooperate, the court will serve the notice of assistance in execution to the registration agency for direct transfer of ownership.

Class Case Reference: The divorce agreement stipulates that the house is owned by one party, and that party acquires the ownership only after the registration of change. The People's Court of Yinzhou District of Ningbo City determined that the property division clause in the divorce agreement is legal and valid and binding on both parties. Although the house number written in the agreement is different from the actual location, it can still be determined to be a disputed house and ordered the defendant to assist the plaintiff in handling the transfer. The registration fee shall be borne by the plaintiff as agreed. Trial Court: Ningbo Yinzhou District People's Court Case No.:(2013) Yong Yin Min Chu Zi No. 1660

7. FAQ

The divorce agreement stipulates that the house belongs to me, but what if the other party delays the transfer of ownership?

can file a lawsuit for property disputes after divorce to the court, requesting to confirm the house ownership and order the other party to cooperate with the transfer within a time limit; if the other party still fails to perform after the judgment takes effect, apply to the court for compulsory execution, and the court will assist in handling the transfer registration.

The house was seized by the creditor of the other party before it was transferred. Can it be kept?

can bring the lawsuit of objection to the execution of outsiders, submit the divorce agreement, transfer application record, actual possession and use evidence, etc., and claim that the house belongs to oneself in substance; but whether the execution can be excluded requires comprehensive judgment, and the risk exists objectively, so it is strongly recommended to transfer the ownership immediately after divorce.

How to transfer the divorce of a house with a loan

Three kinds of paths: transfer after the loan is settled and the mortgage is released; negotiate with the bank to change the borrower as the transferee; or according to the local "transfer with mortgage" policy, the mortgagee agrees to directly handle the transfer registration, which is subject to the loan bank and the real estate registration agency.

Do I have to pay taxes on the transfer of divorce and property?

The division of common property after divorce is a division of common property rather than a transaction. Deed tax, personal income tax and value-added tax are generally not levied when individuals acquire houses that are originally common property. The requirements of the tax department and the registration window shall prevail when handling. In some cases, tax exemption certificates shall be submitted.

The divorce agreement stipulates the ownership of the property, but the property right certificate is withheld by the other party, can you handle the transfer?

can apply for replacement or after reporting the loss: apply to the registration institution with the divorce agreement, divorce certificate and identity certificate, and the registration institution requires both parties to be present together or provide effective legal documents; if the other party refuses to cooperate, the prosecution order is to cooperate with the transfer within a time limit. After the judgment takes effect, the court applies unilaterally with the effective documents or sends a notice of assistance in execution to the registration institution for direct transfer, the loss or seizure of the certificate of ownership shall be dealt with in accordance with the procedures for the loss of supplementary certificates prescribed by the registration authority.

The property was found to be under seizure during the transfer of ownership—can the process still go ahead?

During the seizure period, the registration agency will not handle the transfer registration, and the seizure must be lifted first: if the other party's personal debt is seized, the execution objection can be raised according to the divorce agreement or the lawsuit of the outsider's execution objection can be brought according to the divorce agreement; if it is caused by the preservation of the lawsuit or the application of the party's initiative, it shall be handled after the referee takes effect and unsealed; in any case before the transfer of the seizure.

The house agreed to belong to me has been rented out by the other party. Who will the rent belong?

look at it in stages: the rental income before the completion of the transfer belongs to the income during the management period of the registered nominee, which shall be handled according to the common property or the agreement of both parties; the rent after the completion of the transfer belongs to the new obligee. If the other party maliciously leases the property or infringes upon one’s own rights and interests, one may claim the return of any profits obtained and compensation for losses. In cases involving long-term lease agreements, it is also necessary to pay attention to the lessee’s rights and the issue of contract termination.

Where to check the process and materials of divorce analysis and transfer of ownership

The official website of Ningbo Real Estate Registration Agency and Zheli Office APP can inquire about the service guide, material list and appointment method. Generally, divorce agreement, divorce certificate or effective legal document, identification certificate of both parties, original real estate certificate, etc. are required. For mortgage, bank handling opinions are required. The requirements of the registration window shall prevail. You can also call 12345 government service hotline to transfer real estate registration consultation.

The other party denies the signature on the divorce agreement, claiming, “I didn’t sign it.” What should be done?

You may apply for a handwriting examination to verify the authenticity of the signature; at the same time, you may request the retrieval of the divorce agreement filed with the marriage registration authority—the original copy signed in person by both parties when they registered their divorce, which has been verified through the registration process and thus carries strong evidentiary weight. Parties in Ningbo may, by presenting their identification, apply to the marriage registration authority that handled their divorce registration to inspect and obtain a copy of the filed divorce agreement, which may serve as key evidence in litigation.

After the property division and transfer following a divorce have been completed, can either party still change their mind?

Where the transfer registration has been completed and no statutory circumstances such as fraud or coercion exist, the transfer cannot be revoked on the ground of repentance. The completion of the transfer means that the change of property rights has occurred and is publicized, and both parties should be bound by it, and then either party claims to overturn it on the grounds that "the division was wrong at the time" and "the conditions have changed now", which is difficult for the court to support-registration is the end of property disposition and the starting point of certainty of rights.

Practical experience of 8. lawyers

Agreement and registration are two things. Many people regard "the agreement is written for me" as "the house is already mine". In practice, only after the registration of property rights change, the real right can be really transferred, in order to fight against the other party and the other party's creditors. Therefore, the first thing to do after getting the agreement is not to celebrate, but to go to the real estate registration department to transfer the ownership as soon as possible and put the agreement on the register.

There is a period of risk from the agreement to the transfer of ownership, and three things should be done: one is to keep the original agreement, divorce certificate and the communication record of the other party's cooperation in the transfer of ownership; the other is to specify the transfer period and overdue responsibilities in the agreement, and apply for property preservation if necessary to prevent the other party from mortgaging or selling the house during the period of being urged to transfer; the third is to check the loan on, first, confirm the process and sequence of transfer and loan transfer with the bank, and don't go to the window to find that it can't be done. If the loan is outstanding, the repayment responsibility and transfer conditions shall be settled together.

There is another time point that is easy to be ignored: the house is seized by the creditor of the other party during the period when the ownership is not transferred. At this time, we should claim our rights in time, raise objections with the effective divorce agreement or mediation agreement, explain the ownership of the house and the basis for handling it, and strive for the transfer after unsealing. When negotiating, we should also keep an eye on it. We should not give in to all other conditions unrelated to the house before the transfer of ownership. We should take "transfer of ownership first" as an exchangeable bargaining chip and wait until the ownership is settled before we talk about secondary matters. Once the transfer of ownership is complete, you can then discuss payment and relocation—giving you the upper hand.

The divorce agreement stipulates that the house ownership is only the "first step", and the transfer registration is the "door-to-door" of the rights ". The advice for the parties involved can be summarized in three words: Act quickly. After signing the agreement, immediately handle the mortgage, prepare materials, apply for transfer of ownership, and make the change of real rights real. If it is really impossible to transfer the ownership for a while, confirm the ownership through litigation and apply for property preservation to lock the risk; At the same time, pay attention to the divorce agreement property arrangement not to touch the red line of creditor's revocation, otherwise even if the transfer is made, it may be revoked and all previous efforts will be lost.