Can the Ningbo divorce agreement agree to transfer the property to minor children?
When Mr. Zhang and Ms. Li divorced, they agreed to transfer the shared property to the minor children, leaving a guarantee for the children's future. But when the divorce certificate was received, one party went back on its word-did not want to transfer the ownership, and even wanted to return the house and dispose of it himself. Does this agreement count? Conclusion First: If the divorce agreement stipulates that the joint property of the husband and wife will be donated to the minor children, the agreement is legally binding on both parties. If one party goes back on its promise and fails to perform, the other party or the children may require it to perform. Unlike general gifts, the gift clause in the divorce agreement cannot be revoked arbitrarily. However, the transfer of ownership of real estate can only be completed through transfer registration, and the mortgage burden must be dealt with first. This paper makes it clear that "the validity of the agreement, the revocation restriction, the transfer connection, and the relief of repentance.
Why the 1. agreement is valid: the synergy of the two provisions.
The basis for the effectiveness of such an agreement comes from two levels. First, Article 1065 of the the People's Republic of China Civil Code stipulates that the agreement between the husband and wife on the property acquired during the marriage relationship and the premarital property is legally binding on both parties-the clause in the divorce agreement on the return of the property to the child is essentially the husband and wife The agreement reached on the disposition of common property belongs to the true intention of both parties and is binding on both parties. Second, article 657 stipulates that a gift contract is a contract in which the donor gives his property to the donee free of charge, and the donee expresses his acceptance of the gift. The two provisions are superimposed and it is concluded that: the divorce agreement stipulates that the property belongs to the minor children, the terms are valid, and both parties shall perform according to the agreement.. It should be emphasized that the divorce agreement has the complex and holistic nature of the status relationship and property arrangement-the property division clause is often mutually conditional with the child support and divorce itself, and one party cannot only enjoy the "freedom of divorce" but repent of the "property arrangement". For this reason, judicial practice generally believes that the provision of giving children in divorce agreements is different from ordinary gifts and cannot be applied to the general arbitrary revocation right of article 658 of the civil code. The relevant answers of the first civil court of Zhejiang high court and the judgment of Ningbo court confirmed this caliber. the Yinzhou court case reported by Zhejiang legal daily on February 16, 2022 made it clear that the property donated to children in the divorce agreement cannot be revoked at will.
Under what circumstances 2. may be withdrawn or adjusted
"Cannot be arbitrarily revoked" does not mean "absolutely unchangeable". There is still room for relief in the following situations: first, fraud and coercion-according to article 70 of the (I) of interpretation, if the husband and wife renege on the division of property after divorce and request the cancellation of the property division agreement, the court shall accept it; After examination, if there is fraud or coercion (such as concealing major property and forcing signature by threat), the relevant provisions can be revoked; Second, damage to the interests of creditors-the divorce agreement gives the real estate to the children free of charge. if one of the spouses is unable to pay off the external debts, the creditor may request the court to revoke the free disposition according to the provisions of the civil code on the creditor's cancellation right (article 538), but it must be claimed within the legal period. Third, the agreement is unclear or cannot be performed-the agreement does not specify the location, certificate number and time limit of the transfer of the property, or the property has the burden of rights such as seizure, mortgage, etc., resulting in the inability to transfer ownership, performance will be deadlocked. It should be pointed out that the most common reason for "repentance"-"the house price rose, the original loss"-does not constitute a cause of revocation, the court will not support.
3. transfer how to do: registration, mortgage and guardian management.
The gift of real estate is registered as an element of the change of property rights (Article 209 of the Civil Code), the agreement is not transferred, the property is still legally owned by the original registrant, there is a risk of being sold or mortgaged. The transfer of ownership is divided into several steps: the first step is to write down the details of the agreement-specifying the location of the property, the number of the real estate certificate, the donation arrangement, the time limit for transfer and the liability for breach of contract, so as to avoid unclear "which suite and what conditions"; The second step is to deal with the burden of rights first-the transfer of property with outstanding mortgage usually requires paying off the loan to release the mortgage, or obtain the written consent of the mortgagee (bank) (the loan contract generally stipulates that no transfer is allowed without consent), and the former is the main practice; The third step is to handle the transfer registration-after the divorce agreement is obtained, both parties (or unilaterally after the confirmation of the effective judgment) apply to the real estate registration agency for the transfer registration under the name of minor children with divorce certificate, divorce agreement, identity document and real estate certificate, and taxes involved shall be declared and paid according to the tax policy; the fourth step, guardian management-during the child's minor period, the property is managed by the direct supporter as the guardian. According to Article 35 of the Civil Code, the guardian shall perform his guardianship duties in accordance with the principle of being most beneficial to the ward. Except for protecting the interests of the ward, he shall not dispose of the ward's property-that is to say, after the house is registered in the child's name, the parents It cannot be sold without authorization on the grounds of "capital turnover" or "house exchange", and compensation must be paid for losses caused by unauthorized disposal. When the child is an adult, the property is at his or her own disposal.
What to do 4. one party goes back on its word and does not cooperate: three relief paths
when one party refuses to cooperate with the transfer of ownership, the other party is not helpless: first, the application is to continue to perform-to sue on the grounds of property disputes after divorce, requesting the court to order the other party to cooperate in the transfer registration, and the court supports it and then unilaterally applies for registration with the effective judgment (the real estate registration agency can handle it in accordance with the effective legal documents); Second, claim liability for breach of contract-if the agreement stipulates liquidated damages for overdue transfer, it also claims liquidated damages and the resulting losses (such as loan interest, assessment fees, etc.); third, the children's name claims-in practice, there are also minor children as plaintiffs, direct supporters as legal representatives to sue for the performance of the gift obligations, the degree of acceptance varies from place to place, must be combined with the court of appeal to choose. It should be noted that the statute of limitations: the request to continue to perform the transfer belongs to the right to perform the contract, and the three-year statute of limitations applies, starting from the date of expiration of the agreed period of performance, and it should be claimed as soon as possible after the other party refuses to cooperate, and the statute of limitations should not be delayed. If the other party has sold the property to a third party without authorization, it is necessary to follow the path of recovery of the sale and compensation, which is more complicated.
5. common mistakes
misunderstanding 1: If you write a gift, you can go back on your word at any time. Positive solution: the gift clause in the divorce agreement is different from the general gift, usually can not be arbitrarily revoked.
Myth 2: Signing an agreement means that the house is already a child's. Positive solution: real estate to registration as a property right change elements, did not handle the transfer before the ownership is still in the name of the original registrant, the agreement only produces the right of claim nature, must be transferred in a timely manner.
Myth 3: After the house is given to the child, the parents have no right. Positive solution: The child shall be managed by the guardian before he reaches adulthood, but the guardian shall not dispose of the child's property without authorization; the disposition must be to protect the interests of the ward, otherwise he shall be liable for compensation.
Myth 4: giving children a house can hide from debt. Positive solution: If the debt is evaded by free gift, the creditor may request cancellation according to law, and the property may be recovered for debt repayment.
The Boundary after 6. Transfer: Guardianship, Earnings and Adulthood
after the real estate is transferred to the name of the minor children, the legal relationship has not ended, and the three boundary issues need to be known in advance. First, the disposition boundary of the guardian-according to article 35 of the civil code, the guardian shall not dispose of the property of the ward except for safeguarding the interests of the ward; "for the interests of the ward" usually refers to the use for its education, medical treatment, daily necessities, etc., and the disposition procedure generally requires the consent of the guardian of the other party or the legal procedure to sell the children's real estate for debt repayment, investment, etc., which constitutes ultra vires, the loss caused shall be compensated. Second, the attribution of rental income-the rent generated by the rental of real estate under the child's name belongs to the child's property income, which is managed by the guardian on behalf of the child and used for the benefit of the child, and cannot be directly used as maintenance or parental income. Third, the right to return to adulthood-children at the age of 18 to obtain full disposition, can decide to sell, mortgage or continue to hold, the parents' agreement and guardianship authority ended. Understanding these three boundaries can prevent "giving children a house" from evolving into a new family conflict-guardianship is a responsibility rather than a right, which is the most easily overlooked point.
Reference to such cases: In a post-divorce property dispute heard by the Ningbo Yinzhou Court, the divorce agreement agreed that the share of the property would be transferred to the daughter after the legitimate daughter reached the age of 18, and the court rejected the request for early division and disposition on the grounds of damaging the expected interests of the legitimate daughter, reflecting the protection of the agreement on the "property to the children. Trial Court: Ningbo Yinzhou District People's Court Case No.:(2018) Zhejiang 02
12Minchu No. 10112
7. FAQ
after the house is transferred to the child, will the other party's debt be executed by the court?
Generally not-the real estate is registered in the name of the child and belongs to the personal property of the child, and the creditor of the parent cannot execute it in principle; However, if the gift is a malicious evasion of debts and damages the interests of the creditor during divorce, the creditor may request to cancel the gift in accordance with the provisions of the Civil Code on the creditor's right of cancellation, and the property shall be restored to enforceable property after cancellation. The line between a legitimate gift and a malicious evasion of debt is whether it harms the interests of creditors.
The divorce agreement stipulates that the property will be given to the child, but it does not specify which suite, can it be implemented?
Unclear engagements can lead to obstacles to performance. If the agreement does not specify the location and certificate number of the property, it is difficult for the court to determine the subject of performance, and the object of the gift must be fixed through supplementary agreement or evidence; therefore, the specific information of the property and the time limit for transfer must be stated when signing the agreement.
The house has a loan that has not been paid off. Can it be transferred directly to the child?
It is usually necessary to settle the loan, cancel the mortgage before the transfer, or obtain the written consent of the bank (most mortgage contracts agree not to transfer without consent). Transfer of ownership with mortgage has been piloted in some cities. Whether Ningbo is applicable and the specific conditions are subject to local real estate registration and banking policies. Consult and confirm before handling.
Do I have to pay tax on the transfer of ownership to my child?
Real estate gifts between immediate family members involve taxes and fees such as deed tax, the specific tax rate and relief policy shall be subject to the provisions of the tax department, different transfer methods (gifts, sales) tax burden difference is obvious, before handling can first to the real estate registration and tax window consultation calculation, choose a better cost path.
The child is underage, can the house be sold by the other party after the transfer?
It cannot be sold without authorization. The guardian's disposition of the guardian's property must be for the protection of his interests (e. g. to pay for his education, medical care and other necessary expenses), and generally subject to legal procedures.
Practical Experience of 8. Lawyers
leave the house to the child, the starting point is good, but the parties often ignore a key difference: the agreement is valid, does not mean that the house has been owned by the child. The ownership of real estate to handle the transfer registration is completed, the agreement only makes you have the obligation to cooperate with the transfer. Therefore, the signing of the agreement and the completion of the divorce formalities do not mean that the matter is over. The subsequent transfer of ownership, loan processing and tax arrangements have to be landed one by one. Any delay in any link in the middle may make the agreement hang in the air, and the child may not really get the house in the end.
The agreement should make the transfer enforceable: specify the housing information, the transfer period, who will bear the taxes and fees, and what if one party does not cooperate. You can agree on liquidated damages, or you can directly agree to facilitate the transfer by judgment or mediation. If the house has a mortgage, first communicate with the bank whether the debtor can be changed, and if necessary, pay off or make other arrangements. Many regrets happen in the link of not being able to pass the household. When the child is a minor, the guardian shall manage it on his behalf after the transfer of ownership, but the guardian shall not dispose of it at will or harm the interests of the child; if one party is worried about selling the house without authorization, he can make necessary restrictions in the agreement or registration.
If one party goes back on its word and does not cooperate, don't just rely on repeated urging, first make a written reminder, leave the evidence, and then continue to perform or bear the liability for breach of contract according to the requirements of the agreement; If the situation is complicated, the transfer can be confirmed and forced through litigation request. Such terms for children are usually seen as part of the overall arrangement for divorce and, unlike ordinary gifts, cannot be withdrawn, provided that the agreement itself is clear and is not found to be fraudulent or coerced. Before signing, honestly ask yourself whether you are really willing to give up the property for a long time. Don't promise in your emotions and repeat it afterwards. That will hurt your feelings and make it difficult to get support.
Giving property to minor children is one of the most "long-term" property arrangements that divorced parents can give, but it is also the easiest to have problems in the three links of "agreement-transfer-management. The agreed link should be specific (location, certificate number, time limit, liability for breach of contract), the transfer link should be well connected (timely handling after receiving the certificate during the cooling-off period, and the mortgage should be released first), and the management link should keep the boundary (the guardian shall not dispose of it without authorization). When a party goes back on its word, it is an effective remedy to continue to perform the breach of contract, but do not delay the statute of limitations. Special attention should be paid to the parties in Ningbo: the agreed divorce must be filed with the marriage registration office within 30 days after the expiration of the 30-day cooling-off period. If the application is overdue, the application will be deemed to be withdrawn-the connection time between the filing of the license and the transfer of ownership must be planned in advance.