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Points for Attention in Drafting Marital Property Agreement in Ningbo

Ningbo Author：LuXu WANG

How to write the marital property agreement to be valid? Conclusion First of all, the Civil Code allows the husband and wife to agree that the marital and pre-marital property shall be owned by each, jointly or partially owned by each and partially jointly owned, and the agreement is legally binding on both parties (Article 1065). However, the agreement has six "red lines" that cannot be touched: the freedom of divorce cannot be restricted, the loyalty clause of "clean body out of the house" should not be added, the gift of real estate should be notarized or transferred, the debt agreement should not be against bona fide creditors, the property of others should not be disposed of, and the property should not be "agreed to the child" as a joke. This article is broken down article by article and attached to the drafting list.

1. red line one: property agreement can not restrict the freedom of divorce

freedom of marriage includes both freedom to marry and freedom to divorce (article 1041 of the Civil Code). Any clause with the content of "no divorce" and "punishment for divorce" is absolutely invalid, such as "one party files for divorce and leaves the house clean" and "the child must belong to the other party other than the divorce party", which the court will not support.

More vigilant is the property clause "conditional on divorce. The marital agreement says "if both parties divorce, the house will be owned by one party", which is close in nature to the divorce agreement. According to Article 69 of the Interpretation (I) on Marriage and Family, if the parties reach a property disposal agreement conditional on divorce by agreement, if the parties do not register the divorce and one party repents in the lawsuit, the court will determine that the property clause has not entered into force and is still divided according to legal rules. In other words, the marital property agreement should focus on "the attribution of property during the marriage" and not be linked to "how to divide it in the event of divorce", otherwise the seeds of uncertainty will be planted.

2. red line two: do not add "loyalty clause"

many couples wrote in the agreement: "If one party cheats, he will leave the house clean and all the property will belong to the other party. "The validity of this type of loyalty clause has long been controversial in judicial practice: some courts consider it to be a privatized agreement on the duty of loyalty between husband and wife, and some support it; The mainstream view is that loyalty is a moral obligation. Such clauses may not be supported because they restrict personality or are difficult to enforce. Courts prefer to deal with them according to the general rules of property division.

Even if individual courts approve, there are still two difficulties: one is how to identify "derailment"-to what extent it is considered derailment and needs evidence to support it; The second is the legality of evidence collection-evidence obtained through candid photography and illegal intrusion into the privacy of others may be excluded. Instead of writing a "clean out" clause with a high probability of failure, it is better to write clearly the boundary between property ownership and specific, provable behavior, or to realize the control of property through the marital property agreement itself.

3. red line three: involving gifts, be sure to notarize or timely transfer

the marital agreement stipulates that "one party's premarital property belongs to the husband and wife" or "gift to the other party", which is a gift in nature before the transfer registration. According to Article 658 of the Civil Code, the donor may revoke the gift before the transfer of property rights. Article 32 of the (I) for Interpretation of Marriage and Family clearly states that if one party's real estate is donated to the other party before marriage or during the existence of the marriage relationship, and the donor cancels the gift before the change of registration, it shall be handled according to this article-that is, the gift of real estate that has not been notarized or transferred, and the donor may be regretted.

There are only two ways to crack it: one is to notarize-the notarized gift contract cannot be revoked at will, and the recipient can request to continue to perform it; The second is to register the change of real estate as soon as possible to turn "gift" into "actual control". Many marital agreements are signed without notarization or transfer of ownership. A few years later, one party goes back on its word, and the other party can hardly get support with the agreement. The lesson is profound.

4. red line four: debt agreement has no external effect

the marital property agreement says "each debt is repaid", which is valid only within the husband and wife. According to the third paragraph of Article 1065 of the Civil Code, if the husband and wife agree that the property belongs to each other, the husband or wife's external debts shall be paid off with their personal property only if the relative knows the agreement. In other words, when the lender does not know that you have a property contract, it may still determine the joint debt of the husband and wife according to Article 1064 and require the husband and wife to repay it together.

The point is that "third-party knowledge" is difficult to prove-you can't prove to every potential creditor that you have signed a property agreement. Therefore: when borrowing externally, try to make the creditor aware of the agreement and retain evidence (e. g., as indicated in the loan contract and signed by the spouse).

5. red line five: can not dispose of other people's property

the scope of the marital property agreement should be limited to the property of both spouses-either the personal property of one party or the common property, but not the property of others. For example, it is agreed that "the property in the name of the man's mother shall be owned by the woman" and "the shares of the father-in-law shall be given to the daughter-in-law", which is not entitled to punishment and has no effect on the property owner. If the property owner does not agree in the future, the clause cannot be fulfilled.

6. red line six: don't put the property "agreed to the child" as a child's play

the husband and wife's desire to leave their property to their children is understandable, but the direct agreement within the marriage that "the common property belongs to the child" is still legally a gift arrangement: if there is no notarization or transfer of ownership, the donor can revoke it at any time (article 658 of the Civil Code). Therefore, if you want to leave the property to your child, you can either sign the agreement and notarize it immediately, or transfer it directly to the child's name (note: the house registered in the name of the minor child must be disposed of for the benefit of the child in the future, and parents cannot sell it at will).

What needs to be distinguished is that if the divorce agreement stipulates that the property will be given to the children, the rules are different-according to Article 20 of the (II) for Interpretation of Marriage and Family Compilation, the divorce agreement stipulates that part or all of the common property will be given to the children. After the divorce, if one party goes back on his word and requests cancellation before the transfer of property rights, the court will not support it (except with the consent of the other party). That is, "marital agreement to the child" can be revoked, "divorce agreement to the child" is difficult to go back on, the two cannot be confused.

7. Drafting Checklist: What a valid marital agreement looks like

A secure marital property agreement is recommended to include the following elements and implement them on a case-by-case basis:

  1. subject and meaning: the husband and wife sign in person, stating the background and true will of the signing, and eliminating the signing, coercion and fraud;
  2. scope of property: list the details of existing real estate, deposits, vehicles, equity, financial management, etc. and the number of ownership documents in the form of attachments to avoid "general confusion";
  3. the agreed model: clearly adopt "respective ownership", "common ownership" or "partially respective ownership", item by item, do not leave a vague area;
  4. debt arrangements: write down the rules of attribution and internal recovery of debt, and pay attention to external limitations;
  5. procedure implementation: Immediate notarization or transfer of property gifts;
  6. alteration and dissolution: Changes to the agreement must be signed jointly in writing to prevent disputes arising from one party's unilateral repentance.

8. invalid and revocable: signed may not count

marital property agreements, even if "in black and white", may fail due to defects in effect, and should be drafted to avoid:

  1. absolutely invalid situation: the agreement signed by the person without civil capacity (such as during the period of mental disorder) is invalid; The provisions that cover up the illegal purpose in a legal form and violate the public order and good customs are invalid (the punitive arrangements that restrict the freedom of divorce and take infidelity as the premise belong to this category); The provisions that dispose of other people's property and damage the interests of the third party have no effect on the third party (articles 143 and 153 of the civil code);
  2. circumstances of revocation: If it is obviously unfair at the time of conclusion due to major misunderstanding, fraud or coercion, the injured party may request revocation within the statutory time limit (articles 147 to 151 of the Civil Code)-the right of revocation has a period of exclusion (generally exercised within one year from the date when the cause of revocation is known or should be known), and the right of revocation expires;
  3. procedural defects: If one party forges the other party's signature and signs the agreement on behalf of the other party, the agreement is certainly not established.

Reverse reminder to the drafting party: the content of the agreement is legal and the procedural norms (signed by myself, voluntarily, written and notarized) are the bottom line; Reminder to the other party: if it is really forced to sign, keep the chat records, audio recordings and other evidence at that time, exercise the right of revocation in a timely manner, and do not wait until the divorce proceedings before claiming.

9. the boundaries of the three types of instruments: marital agreements, divorce agreements and loyalty agreements.

In practice, the parties often confuse three types of instruments and distinguish their purposes before drafting them:

  1. marital property agreement (property agreement): it takes effect during the marriage, agreeing on property ownership and debt commitment, according to Article 1065 of the Civil Code; to solve the problem of "how to calculate money during the marriage";
  2. divorce agreement: take registered divorce or litigation mediation divorce as the effective condition, handle divorce, child support, property and debt settlement, according to article 1076 and article 69 of the interpretation (I); How to divide the divorce ";
  3. loyalty agreement: on the premise of the breach of the duty of loyalty to agree on compensation or transfer of property, the effectiveness of doubt, the difficulty of proof, not recommended as the main carrier of property arrangements.

The typical mistake of mixing is to write "how to divide the property if divorced" in the marital agreement-this clause may be recognized as a property division agreement conditional on divorce, and one party will not take effect if the divorce is not registered. Or write in the divorce agreement "if the agreement is invalid" and so on, but create new uncertainty. The correct approach is to discuss the matter on a case-by-case basis: the marital property arrangement will go through the marital agreement and be notarized, and the divorce arrangement will be signed separately, each of which will take effect.

10. FAQ

do marital property agreements have to be notarized to be valid?

I don't have. The agreement shall take effect as soon as the true intention of both parties is expressed and signed, and the role of notarization is that it can be used against arbitrary revocation when the gift of real estate is involved, and the evidence is stronger. The agreement on the gift of the house is recommended to be notarized or transferred directly.

The party that signed the agreement goes back on its word, can it be changed?

The agreement that has entered into force may be changed through negotiation between the two parties; if the gift of real estate has not been notarized, the gift may be revoked in accordance with the law; the notarized gift and the property that has been transferred have very little room for repentance.

Is there any use in the end of "one party cheating and leaving the house clean?

The validity of the dispute, the mainstream referee does not support or only for reference, does not recommend the divorce property arrangements on the loyalty clause.

Can the agreement agree that the debt will be borne by one party against the creditor?

Not against bona fide creditors. Creditors may still claim according to the joint debt rules of husband and wife when they are not aware of it.

After signing the marital property agreement, one party still repents to sue, will the agreement be overturned?

Generally not. The content is legal and the agreement signed by me is binding on both parties. What can be overturned is fraud, coercion, gross misunderstanding or content violation, and must be claimed within the statutory time limit.